Smarty Ants Terms of Use
These Terms of Use (“Agreement”) govern your access to and use of the website at www.smartyants.com (the “Site”) provided by Smarty Ants, Inc. (“Smarty Ants,” “we,” or “us”) and the Smarty Ants service(s) available via the Site for use in conjunction with applications on your personal computer or other device (such services together with the Site, the “Service”). PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE. YOU MAY NOT ACCEPT THIS AGREEMENT IF YOU ARE UNDER 18 YEARS OF AGE. IF YOU ARE A PARENT OR GUARDIAN OF A CHILD USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT WITH RESPECT TO SUCH CHILD’S USE OF THE SERVICE.
Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted in connection with such features. All such additional guidelines, terms, rules, the Smarty Ants Privacy Policy and the Children’s Privacy Policy (“Privacy Policies”), are hereby incorporated by reference into this Agreement. Smarty Ants licenses to you the applications available for download and use in conjunction with this Service together with any associated “online” or electronic documentation (“Licensed Application“).
1. User Accounts. To use certain portions of the Service, you must create a user account (“Account”) by registering through the Service, providing us with the information requested on the registration form, and accepting this Agreement. You will promptly update all Account information to keep it true, accurate, and complete. Should we suspect that any information you provide is not true, accurate, or complete, we have the right to suspend or terminate your use of the Service. When you register, we will ask you to provide a user name and password. You will be responsible for all activities that occur under your user name and password and therefore you agree to keep your password confidential. You agree to notify us immediately of any unauthorized use of your user name or password or if you believe that your password is no longer confidential. You will be responsible for any activities that occur under your Account until you terminate your Account in accordance with Section 10. We reserve the right to require you to alter your user name and/or password if we believe that your Account is no longer secure. You will not: (a) provide any false personal information with respect to you, your child, or other users of the Account as part of your Account information or on the Service; (b) create an Account for anyone other than yourself on behalf of your child; (c) create or use more than one Account with respect to your child at any given time; (d) transfer your Account to anyone else; (e) permit others (other than your child or your child’s parent or guardian) to use your Account; or (f) use or access other persons’ Accounts (other than those created on behalf of your children). By creating an Account, you hereby authorize Smarty Ants to use your Account information in accordance with the Privacy Policies for the purposes of sending periodic e-mails or other messages or mailings to you about our products, services, and news.
2. Fees & Payment. Smarty Ants provides access to and use of certain portions of the Service on a paid subscription basis. You will be charged fees in advance for a month to month, annual, or other periodic subscription that you choose on the account management page. Subscriptions will renew automatically unless you notify Smarty Ants through the account management page prior to the end of the then-current subscription period that you wish to terminate your subscription. Prices are subject to change at any time, but will not take effect until the next subscription period. Smarty Ants may offer free trial subscriptions. You may only participate in one such free trial. To participate, you must provide a valid email address. You must provide Smarty Ants with valid credit card information or other payment information prior to registering for the Service. You agree that Smarty Ants may charge fees to your credit card or other payment account for your subscription and that you will pay all applicable fees assessed to your Account. Our fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties.
3. User Content
(a) You will comply with all applicable laws, including privacy laws, intellectual property laws, and regulatory requirements;
(b) You will not solicit passwords or personal identifying information of any kind for commercial or unlawful purposes from other users, or engage in commercial activities and/or sales such as contests, sweepstakes, barter, advertising, and pyramid schemes;
(c) You will not use the Service to do or promote anything that is unlawful, illegal, misleading, defamatory, or libelous; and
4. Licensed Application
4.1 Subject to the terms of this Agreement, Smarty Ants grants to you a nontransferable, nonexclusive license during the term of this Agreement (without the right to sublicense) to install and execute one copy of the Licensed Application, in executable object code format only, solely (a) on a personal computer or other device that you own or control and (b) for your use of the Service for your personal, non-commercial purposes, and for no other use.
4.2 Restrictions. You acknowledge that the structure, organization, and source code of the Licensed Application constitute valuable trade secrets of Smarty Ants and its licensors. Accordingly, you shall not: (a) license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Licensed Application or make the Licensed Application available to any third party; (b) modify, adapt, alter, translate, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Licensed Application; (c) merge the Licensed Application with other software; (d) access the Licensed Application in order to build a similar or competitive product or service; and (e) copy, reproduce, distribute, republish, post, or transmit any part of the Licensed Application in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means. Any future release, update, or other addition to functionality of the Licensed Application provided by Smarty Ants (if any) shall be subject to the terms of this Agreement unless Smarty Ants expressly states otherwise. You shall preserve all copyright and other proprietary rights notices on the Licensed Application and all copies thereof.
5. Ownership. Smarty Ants and its licensors own the Service, all content (except for your User Content) contained therein and the Licensed Application, and all intellectual property rights relating to the foregoing. You agree not to reproduce, license, distribute, trade, rent, lease, sell or exploit for any commercial purposes, any portion or use of, or access to, the Service or any content (except for your User Content) contained therein or the Licensed Application. Any unauthorized reproduction or modification, distribution, display, or performance of any portion of the Service or any content (except for your User Content) contained therein or the Licensed Application is strictly prohibited. Smarty Ants and its licensors reserve all rights not expressly granted under this Agreement. Smarty Ants will treat any feedback or suggestions you provide to it as non-confidential and non-proprietary. Smarty Ants reserves the right to use any feedback or suggestions you provide in any manner and for any purpose without any obligation to compensate you.
6. Privacy. We will collect, use, and disclose your and your child’s personal information in accordance with the Privacy Policies.
7. Third Party Websites and Services. Our Service may contain links to Internet sites and services maintained by third parties. These links are provided for your reference only. We do not control, operate or endorse in any respect information, products, or services on such third-party sites and are not responsible for their content. Many third-party sites and services have their own terms of use and privacy policies that differ from ours. This Agreement and the Smarty Ants Privacy Policies only apply to our Service and do not apply to any other site or service.
8. Availability and Modification of Service. Smarty Ants reserves the right, from time to time, to suspend the Service or any part thereof with or without notice for maintenance, repair, updates, and upgrades relating to the Service or to protect against harm or liability to the Service or Smarty Ants. Smarty Ants will have the right to modify or discontinue, from time to time, any aspect of the Service. You agree that Smarty Ants will not be liable to you or to any third party for any modification, discontinuance, or suspension of the Service or any part thereof.
9. Term and Termination. Subject to this Section, this Agreement will remain in full force and effect while you use the Service and/or maintain an Account. You may terminate your Account at any time, for any reason, through the appropriate account management page on Service, if available, or by sending an e-mail to www.smartyants.com/contact-us, but will have no right to receive a refund in such case. Smarty Ants will have the right to terminate this Agreement and/or your Account, or suspend or terminate your access to the Service, for any breach of this Agreement immediately upon notice to your e-mail address listed in your Account. Smarty Ants may terminate this Agreement for any reason or no reason immediately upon notice to your e-mail address listed in your Account, upon which Smarty Ants will refund a prorated amount of any prepaid fees. Upon termination of this Agreement by either party, your right to access and use the Service will terminate immediately. You agree that we will have no liability to you for any costs, expenses, losses, damages, or liabilities arising out of or related to our termination of this Agreement. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 4,5, 7, and 10 to 189.
10. Warranty Disclaimer. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, SMARTY ANTS PROVIDES THE SERVICE AND LICENSED APPLICATION “AS-IS” AND AS AVAILABLE AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. SMARTY ANTS DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICE OR LICENSED APPLICATION. SMARTY ANTS MAKES NO WARRANTY THAT THE SERVICE OR LICENSED APPLICATION WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. YOU AGREE THAT SMARTY ANTS IS NOT RESPONSIBLE FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY CONTENT, COMMUNICATIONS OR PERSONALIZATION OR PREFERENCE SETTINGS. SMARTY ANTS DOES NOT ASSUME ANY OBLIGATION TO MONITOR ACTIVITIES CONDUCTED ON THE SERVICE.
11. Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, SMARTY ANTS WILL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY LOST PROFITS, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE LICENSED APPLICATION OR YOUR USE OF THE SERVICE UNDER THIS AGREEMENT, EVEN IF SMARTY ANTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SMARTY ANTS’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER of SIXTY NINE U.S. DOLLARS (US $69) OR THE AMOUNTS PAID BY YOU TO SMARTY ANTS IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. YOU ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE ESSENTIAL AND FUNDAMENTAL PARTS OF THIS AGREEMENT WHICH ARE NECESSARY TO INDUCE SMARTY ANTS TO ENTER INTO THIS AGREEMENT.
12. User Indemnification. You agree to indemnify and hold Smarty Ants, its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any losses, damages, liabilities, claims, demands, costs, or expenses, including reasonable attorneys’ fees, arising out of or relating to your: (a) User Content; (b) use of the Service; (c) breach of this Agreement; (d) breach or inaccuracy of any representation or warranty made under this Agreement; or (e) violation of applicable laws or the rights of third parties.
13. Copyright Policy. You may not post, distribute, or reproduce in any way any Smarty Ants copyrighted material, trademarks, or other proprietary information unless you have the right to do so. If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. At a minimum, you must provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; an identification of the location on the Service of the material that you claim is infringing; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Smarty Ants’s Copyright Agent for notice of claims of copyright infringement can be reached by writing the following:
www.smartyants.com/contact-us
14. Disclosures. Smarty Ants is located at 300-B Drakes Landing Rd. Ste. 270, Greenbre, CA 94904. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
15. Electronic Communications. The communications between you and Smarty Ants use electronic means, whether you use the Service or send us emails, or whether Smarty Ants posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Smarty Ants in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Smarty Ants provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
16. General. This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court located in San Francisco, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except that a party bringing an action may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, either party may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You acknowledge that the Licensed Application and Service contain valuable trade secrets and proprietary information of Smarty Ants, that any actual or threatened breach of Section 4 (Licensed Application) or Section 5 (Ownership) of this Agreement will constitute immediate, irreparable harm to Smarty Ants for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. Unless the context clearly requires otherwise, “includes” and “including” are not limiting. This Agreement and the Privacy Policies constitute the final, complete, and exclusive agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. In the event of any conflict or inconsistency between the terms of the Agreement or Privacy Policies, the governing terms will be determined by the following order of precedence: (1) Agreement and (2) Privacy Policies.
17. Changes. We may amend this Agreement from time to time. If we make material changes to the Agreement, we will notify you through a prominent notice through the Service or at your primary email address, as specified in your user account information. Any material changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of notice of the changes on our Service. These changes will be effective immediately for new users of our Service. Please note that at all times you are responsible for updating your Account information to provide us with your most current e-mail address. If the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Except for such amendments, no amendment to this Agreement will be valid unless in a writing hand-signed by the parties.
18. Trademark and Copyright Notice. Certain names, slogans, graphics, logos, service marks, and trade names used on the Service are the trademarks of Smarty Ants and may not be used without permission in connection with any third party products or services. Other trademarks, service marks, and trade names that may appear on the Service are the property of their respective owners. Copyright © 2010, Smarty Ants, Inc.
This Agreement was last revised 12/27/2011.
Smarty Ants Manufacturer’s Warranty
Warranty Information: Consumer Products Purchased at Retail
This SmartyAnts product is warranted only to the original purchaser for a period of three months from the original purchase date, under normal use and service, against defective workmanship and material.
This warranty is void if the product has been damaged by accident or unreasonable use, immersion in water, neglect, abuse, battery leakage or improper installation, improper service, or other causes not arising out of defects in workmanship or materials of the product. All warranty claims are subject to:
- SmartyAnts being notified of the warranty claim within the warranty period
- SmartyAnts verifying the existence of a defect in the product
- Receipt of valid proof of your purchase date.
Note: Please make sure that you have a valid proof of purchase (Receipt) before contacting Customer Service.
Before returning a product for any reason, please notify Consumer Service. If the service representative is unable to solve the problem, you will be provided with instructions as to how to go about having the unit repaired or replaced if it is under warranty. Return of a product under warranty is governed by the following rules — you may be required to return your product, shipping paid by customer and with proof of purchase date, as instructed by a SmartyAnts service representative.
In the event that a product under warranty is repaired or replaced, the replacement will be covered under the original warranty or for 30 days, whichever is longer. Repair or replacement is your exclusive remedy, and SmartyAnts’ exclusive liability, under this warranty.
Replacement may consist of replacing the product with the same product or with a different product of the same value. SmartyAnts shall not be liable for any incidental or consequential damages for the breach of any warranty on this product. Any implied warranty of merchantability or fitness for a particular purpose on this product is limited to the duration of this warranty. Some states do not allow the exclusion or limitation of incidental or consequential damages, or limitation on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights and you may also have other rights, which vary from state to state and country to country. Copyright © 2011, Smarty Ants, Inc.
This Warranty was last revised 12/27/2011.