Better Kids, Ltd. (“Better Kids”, “we”, “us” and “our”) prepared these Terms of Service in relation to our website located at https://www.betterkids.education/(“Website”), our mobile and tablet applications (“Applications”) and our services made available through the Website and Applications (collectively “Services”).
Our Terms of Service set forth the legally binding terms for your use of our Services, whether you are a "Visitor" (which means you are just browsing our Website) or a “Subscriber” (which means you have downloaded one of our Applications). Visitors and Subscribers are individually referred to as a “User” and collectively as “Users”, "you", and "your".
By accessing or using our Services, you accept our Terms of Service (on behalf of yourself or the entity that you represent) and you confirm that you have the right, authority, and capacity to enter into this agreement (on behalf of yourself or the entity that you represent) (the "Agreement"). If you do not agree with all the provisions set forth, do not access or use our Services.
1. Intellectual Property
a) Right to Use our Website
Better Kids grants you a non-transferable, non-exclusive, right to access and use our Website and use our Services for your personal or professional use, subject at all times to the terms of this Agreement.
b) License to Use our Applications
Better Kids grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to use, and to authorize you to use, the Services made available through our Applications and to download, install and use a copy of our Applications on a single mobile device or computer that you own or control solely for your personal or professional use, subject at all times to the terms of this Agreement. Furthermore, you will only use our Applications respectively (i) on an Apple-branded products that run iOS (Apple’s proprietary operating system) and as permitted by the Usage Rules set forth in the App Store Terms of Service, or (ii) on Android products that run Google’s proprietary operating system and as permitted by the Usage Rules set forth in the Google Play Store Terms of Service. You are responsible for the acts and omissions of your child or students and any breach of this Agreement by your child or students will be deemed a breach of this Agreement by you.
c) Proprietary Technology and Content
You agree that the software, code, proprietary methods and systems used to provide the Services (our Technology) and the materials, information and content made available or displayed by us on the Site or through the Services, including all text, graphics, images and the look and feel (collectively, our Content) are: (i) copyrighted by us, our licensors and/or other licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. Better Kids and the stylized Better Kids trademark and other related graphics, logos, service marks and trade names used on or in connection with the Services are our trademarks (“our Marks”) 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 or in the Services are the property of their respective owners. Except for the limited licenses provided herein, we reserve all right, title and interest in our Content, Marks and Technology.
d) User Restrictions on Intellectual Property
The rights and licenses granted to you in this Agreement are subject to the following, you will: (i) not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise exploit the Services, including the Content, except as expressly authorized in this Agreement, (ii) not modify, disassemble, decompile, or reverse engineer any part of the Services, including the Content; (iii) not access the Services in order to build a similar or competitive website, application or service; (iv) not copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of the Services, including the Content; and (v) not remove or destroy any copyright notices or other proprietary markings contained on or in the Services or the Content. Any future release, update or other addition to the Services will be subject to this Agreement.
e) Customer Suggestions
You agree that submission of any ideas, suggestions, documents, and/or proposals to us, including through any suggestion or feedback pages (Customer Suggestions) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Customer Suggestions. You represent and warrant that you have all rights necessary to submit the Customer Suggestions. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Customer Suggestions, and to sublicense the foregoing rights without restriction and in all media now known and later developed.
2. Acceptable Use Policy
As a User of our Services, you agree not to:
harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their and our consent;
interfere with, disrupt, or create an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks;
attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means;
harass or interfere with another user’s use and enjoyment of the Services;
introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
harass, defame, libel, defraud, threaten, infringe the privacy of, or tortuously injure the Site’s users and customers;
upload, transmit, display or distribute any offensive, discriminatory, obscene, vulgar, patently offensive, harmful or pornographic content, or any content that is otherwise objectionable;
infringe on our Intellectual Property Rights (“IP Rights”) or the IP Rights of third parties, which may encompass copyright, patent, trademark, trade secret, or other proprietary rights;
interfere with our ability to provide Services to our users and subscribers;
upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
systematically retrieve data or other content from our Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;
use, display, mirror or frame the Services, or any individual element within the Services, including our arks or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent, and
use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Services or that is in transit from or to the Services, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Services.
3. Third-Party Services
a) Third-Party Websites
Our Website contains links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. The Third-Party Websites are not under the control of Better Kids and Better Kids is not responsible for any Third-Party Websites. We provide these Third-Party Websites only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
b) Third-Party Stores
When you download our Applications, you may do so through third parties such as Apple Corporation’s App Store or Google's Play Store (the Third-Party Store). You acknowledge that this Agreement is between you and us and not the Third-Party Store. As between the Third-Party Store and us, we, not the Third-Party Store, are solely responsible for the Services, including our Applications, the content, maintenance, support services, and warranty, and addressing any claims relating (e.g., product liability, legal compliance or intellectual property infringement). In order to use our Applications, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the Third-Party Store in connection with the Services, including the Application. You acknowledge that the Third-Party Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce them. The following applies to any Application accessed through or downloaded from the App Store (App Store Sourced Application):
(i) You acknowledge and agree that the Terms are concluded between you and Better Kids only, and not the Third-Party Store, and that Better Kids, not the Third-Party Store, is solely responsible for our Applications and content thereof. Your use of our Applications must comply with the Third-Party Store Terms of Service.
(ii) You acknowledge that Third-Party Stores have no obligation whatsoever to furnish any maintenance and support services with respect to our Applications.
(iii) In the event of any failure of our Applications to conform to any applicable warranty, you may notify the Third-Party Store, and they will refund the purchase price for our Applications to you and to the maximum extent permitted by applicable law and have no other warranty obligation whatsoever with respect to our Applications. As between Better Kids and the Third-Party Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Better Kids.
(iv) You and we acknowledge that, as between Better Kids and the Third Party Store, the latter is not responsible for addressing any claims you have or any claims of any third party relating to our Applications or your possession and use of our Applications, including, but not limited to: (i) product liability claims; (ii) any claim that our Applications fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(v) You and we acknowledge that, in the event of any third-party claim that our Applications or your possession and use of our Applications infringes that third party’s intellectual property rights, as between Better Kids and the Third-Party Store, Better Kids, not the Third-Party Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(vi) You and we acknowledge and agree that Third-Party Stores and their subsidiaries are third-party beneficiaries of this Agreement as related to your license of our Applications, and that, upon your acceptance of the terms and conditions of this Agreement, Third-Party Stores will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of our Applications against you as a third-party beneficiary thereof.
(vii) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using our Applications.
You agree to indemnify and hold Better Kids (and our officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand due to or arising out of (a) your use of our Services, (b) your violation of this Agreement; or (c) your violation of applicable laws or regulations. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5. Limitation on Liability
In no event will we (and our suppliers) be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or your use of, or inability to use, the Services, even if we have been advised of the possibility of such damages. Access to, and use of, the Services are at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data resulting therefrom.
Notwithstanding anything to the contrary contained herein, our liability to you for any damages arising from or related to this agreement (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of (a) one hundred us dollars ($100) or (b) amounts you’ve paid Better Kids under this Agreement in the 12 months period immediately preceding the day the claim arose (if any). The existence of more than one claim will not enlarge this limit. You agree that our suppliers will have no liability of any kind arising from or relating to this Agreement.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Service users or Third-Party Sites & Advertisements. If you are a California resident, you hereby waive California civil code section 1542 in connection with the foregoing, which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
7. Term and Termination
Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may (a) suspend your rights to use our Services or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of this Agreement, your right to access and use our Website and Services will terminate immediately. Better Kids will not have any liability whatsoever to you for any termination of this Agreement.
a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and us or our employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration.
b) Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
c) You are thus giving up your right to go to court to assert or defend your rights except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator and not a judge or jury. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court.
d) You and Better Kids must abide by the following rules: (a) any claims brought by you or us must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (b) the arbitrator may not consolidate more than one person’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief, (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
e) Notwithstanding the foregoing, either You or we may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in Delaware. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Delaware in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Delaware for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
f) With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither You nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in Delaware.
g) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
9. Governing Law
This Agreement is made under and will be governed by and construed in accordance with the laws of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
We welcome your comments or questions about this Agreement via email: firstname.lastname@example.org or phone: +1-888-258-73-58
We may change this Agreement. If we make any changes, we will change the Last revised date below.
Last revised on: December 1st, 2018