Terms and Conditions
Effective Date: 12 December, 2012
PLEASE READ THESE TERMS & CONDITIONS ("TERMS") BEFORE USING THIS SITE. THEY ARE THE RULES AND REQUIREMENTS THAT APPLY TO THE SITE. DO NOT PURCHASE A SUBCRIPTION, REGISTER, AND/OR USE THIS SITE IF YOU ARE NOT IN AGREEMENT WITH THESE TERMS.
Welcome to clubliakinder.com ("Site"), which is owned and operated by GoMind, LLC. Our terms apply to this Site, and to any downloadable applications made available through the Site or that interact with the Site and post these Terms. Both these Terms and separate terms of service or sale documents may apply to your use of the Site or to a service or product offered via the Site ("Additional Terms"). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. In these Terms, "you" refers to you individually and you on behalf of any child authorized by you to use and access the Site, and "Adult" is a person of legal age who can enter into a contract in the state in which they reside.
Summary of Key Points
By purchasing an account and/or using the Site, you accept these Terms.
The Site currently offers paid Accounts and Classroom Accounts.
YOU AGREE TO ARBITRATE DISPUTES RATHER THAN GOING TO COURT.
Your use of the Site is AS IS, without warranty and will result in no liability to us.
1. Accounts, Passwords and Payments.
A. Account Types. The Site currently offers "Single user accounts," and "Classroom accounts" (collectively, "Accounts"):
(i) Single user accounts. A single user account, with a single login and username, site progress, messaging, music, and artwork is separately tracked and saved. Only the parent can determine whether, and with whom, their child(ren) can communicate on the site, as well as who, if anyone, within their account can view their child(ren)’s progress on the site.
(ii) Classroom Accounts. We offer a paid classroom accounts. Both types of accounts allow for the creation of up to six learning groups. Individual students would log in to the learning group assigned by the teacher, and up to 50 students can be logged in simultaneously. In this configuration users do not have separate logins, and their site progress, music, and artwork are not tracked and cannot be saved. To be eligible for a Free Classroom account the teacher’s status as a public or private school professional educator must be independently verifiable through their school’s domain-specific email address as listed with Market Data Retrieval. Please note that students cannot communicate with anyone or post or display any content while using either type of Classroom account. Both types of Classroom accounts can only be established and managed by a teacher.
B. Passwords and Account Access. You are responsible for maintaining the confidentiality of your password and Account information. You agree that: (a) you will provide accurate registration information about yourself and any individual you authorize to access your Account and keep your Account information up-to-date; and (b) each Account administrator is solely responsible for all activities that occur under his/her Account. You agree to notify us immediately of any unauthorized Account use. We are in no way responsible for any loss that you may incur as a result of any unauthorized use of your Account and password. You will not sell, transfer, or assign your Account or any Account rights.
C. Account Fees. For certain types of Accounts, we may charge a fee, such as a membership fee or subscription fee. We may change any fee or charge at any time in our discretion. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. We may offer promotional trial subscriptions to access the Site for free or at special discounted prices. If you sign up for a trial use, your rights to use the Site are limited by the terms of such trial and will terminate or renew on the terms of your trial arrangement and/or any applicable Additional Terms. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
(i) Authorization to Charge for Services. You must either use a credit card or other payment mechanism accepted by us on the Site (e.g., Paypal) to activate and maintain a paid Account.
You authorize us to charge you through the payment mechanism that you use when registering for an Account. You will also be responsible for charges for any products or services that you order that are offered for sale through the Site. If we do not receive payment from your credit card issuer, or other payment mechanism that you use, you agree to pay all amounts due hereunder upon our demand and will be solely responsible for any dispute with your payment provider. Should the credit card or other payment mechanism provided initially be declined for insufficient funds or for any other reason, we reserve the right to charge the credit card or other payment mechanism in installments, at the non-promotional/non-discounted rate in effect at that time, for the duration of the Account subscription you have selected. You will be solely responsible for all overdraft fees and/or penalties that may be assessed by your payment provider.
(ii) Subscription Renewal. For paid Accounts we will renew your Account automatically unless you cancel your Account through the My Account Preferences area prior to its renewal date.
We will charge your credit card (or the other method of payment initially used by you) each year, month or other applicable period (depending on the term that you selected) for the then-current applicable price.
(iii) Subscription Cancellation. To avoid future billing you may cancel your Account to clubliakinder.com prior to its renewal date through the My Account Preferences area in the.
You will continue to have access to your Account for the period of time that has already been prepaid, calculated based on the non-promotional/non-discounted rate in effect at the time of cancellation. An email confirming your cancellation will be sent to your email address. There will be no additional billing or charges from the date of cancellation. Please note, we do not provide full or partial refunds for prepaid sums. Feel free to continue to use the Site throughout the remainder of the subscription period for which you have already paid.
2. Site Ownership and License.
A. Ownership. As between us and you, the Site (including past, present and future versions) is owned and controlled by us and its Content is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible.
"Content" means the content of the Site including, without limitation, (i) materials and other items relating to us and our products and services, including, without limitation, all activities, characters, photographs, audio clips, sounds, pictures, videos, animation; (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including ours (collectively, "Trademarks"); and (iii) other forms of intellectual property.
B. Limited License. Subject to your strict compliance with these Terms and the Additional Terms, we grant you a limited, non-exclusive, revocable, non-assignable and non-transferable license ("License") to download (temporary storage only), display, view, use, play, and/or print one (1) copy (excluding certain printable activities made available on the Site, which indicate that they may be printed multiple times) of the Content on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, an "Internet Device") for your personal, non-commercial use only (e.g., teachers may use Content from the Site for educating their students and other users' use is limited to personal use). The License does not give you any ownership of, or any other intellectual property interest in, any Content or the Site, and you cannot otherwise use the Content or the Site without our express prior written permission. All rights not expressly granted to you are reserved by us and/or our licensors and other third parties. Any unauthorized use of any Content or the Site for any purpose is prohibited.
3. Content You Submit.
4. Site Use Restrictions.
You agree that you will not: (i) engage in any activities that seek to attempt to or do harm to us, the Site or any others or are unlawful, offensive, obscene, lewd, violent, harassing, illegal, or that violate any right of any third party or are otherwise objectionable to us; (ii) reverse engineer, disassemble, or modify any Site source or object code or any software or other products, services, or processes accessible through the Site; (iii) engage in any activity that interferes with a user's access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, us, or others; (iv) use any meta tags or other "hidden text" utilizing any of our Trademarks; (v) interfere with or circumvent any security feature of the Site or any feature that restricts or enforces limitations on the use of or access to the Site or its Content; (vi) act in a manner that we, in our sole discretion, deem inappropriate for the venue; (vii) use the Site for commercial or political purposes; or (viii) otherwise violate these Terms, or any Additional Terms.
5. Linking to and from Our Site.
A. Linking to Our Site. When linking to our Site, you must adhere to the following requirements: (i) the link to this Site must not damage, disparage, present false information about or tarnish the goodwill associated with any of our Trademarks, products, services and/or intellectual property; (ii) the link to this Site must not create the false appearance that your web site and/or organization is sponsored by, endorsed by, affiliated with, or associated with us; (iii) you may not "frame" this Site, create a browser environment around any of the Content; and (iv) you may not link to this Site from a web site that is unlawful, abusive, indecent or obscene, that promotes violence or illegal acts, that contains expressions of racism, that is libelous, defamatory, scandalous, or inflammatory or is otherwise deemed inappropriate, as determined by us in our sole discretion. We reserve the right to prohibit linking to the Site for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
B. Links to Other Sites and Third Parties. Areas of the Site open to children signed in to their Account will never have links to third party web sites. In the separately password-protected parents and teachers sections of the Site and sections of the Site open to the general public we may include links to other websites that relate to the Site experience ("Linked Sites"). Any activities you engage in or access in connection with a Linked Site are subject to the privacy and other policies of the Linked Sites and we disclaim all liability in connection therewith. Any interactions, transactions, and other dealings that you have with any third parties found on or through the Site (including via Linked Sites) are solely between you and the third party (including issues related to payments, delivery of goods and warranties) and we disclaim all liability in connection therewith.
6. Governing Law, Arbitration, Injunctive Relief and No Class Actions.
A. Governing Law/Jurisdiction. THESE TERMS, AND ANY ADDITIONAL TERMS, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES.
B. Arbitration. If any controversy, allegation, or claim arises out of or relates to the Site or these Terms (collectively, "Dispute"), the Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association ("AAA"). The arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer, who will administer the proceedings in accordance with the AAA's Supplementary Procedures for Consumer Related Disputes. The arbitrator will apply applicable law and the provisions of these Terms, and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If a party properly submits the Dispute to the AAA for arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a "demand for arbitration," then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. ("JAMS") and determined by a single neutral arbitrator who is a lawyer or a retired judge, using JAMS' Streamlined Arbitration Rules and Procedures, or by any other arbitration administration service to which you and we consent. You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA. 800.778.7879 - http://www.adr.org
JAMS. 949.224.1810 - http://www.jamsadr.com
(i) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator will resolve the submitted Dispute and can issue an award consistent with this Section 6. However, WITH ARBITRATION THERE IS NO JUDGE OR JURY, THE ARBITRATION PROCEEDINGS AND ARBITRATION IS SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require us to pay a greater portion or all of such fees and costs in order for this Section 6 to be enforceable, then we will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator's decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered into any court that has jurisdiction over the parties.
(ii) Small Claims Matters Are Excluded. Either of us may bring a qualifying claim of Disputes in small claims court.
C. Injunctive Relief. The foregoing provisions of this Section 6 will not apply to any legal action taken by us to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, and/or our intellectual property rights (including any we may claim that may be in dispute), operations, and/or products or services.
D. No Class Actions. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.
7. Disclaimer of Representations and Warranties.
YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK.
THE SITE IS PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS.
Therefore, to the fullest extent permissible by law, we and our parent, affiliates, subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, "Company Parties"), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
The Site (including the Content and the User-Generated Content);
The functions, features, or any other elements on, or made accessible through, the Site;
Whether your child will learn anything from using the Site;
Any products, services, or instructions offered or referenced at or linked through the Site;
Whether the Site (and its Content), or the servers that make the Site available, are free from any harmful components (including viruses, trojan horses, and other technologies that could adversely impact your Internet Device);
Whether the information (including any instructions) on the Site is accurate, complete, correct, adequate, useful, timely, or reliable;
Whether any defects to the Site will be repaired; and
Whether your use of the Site is lawful in any particular jurisdiction.
EXCEPTING ONLY AS MAY BE SPECIFICALLY SET FORTH IN ANY ADDITIONAL TERMS, THE COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM ERRORS, COMPUTER VIRUS OR OTHER HARMFUL ELEMENTS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions' laws are applicable.
8. Limitations of Liability.
UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
The Site (including the Content and the User-Generated Content);
Your use of or inability to use the Site, or the performance of the Site;
The failure of a child user to learn or otherwise benefit educationally from their use of the Site;
Any action taken in connection with an investigation by Company Parties or law enforcement authorities regarding your access to or use of the Site;
Any action taken in connection with copyright or other intellectual property owners or
other rights owners;
Any errors or omissions in the Site's technical operation; or
Any damage to any user's computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if Company Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Site).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES' TOTAL LIABILITY TO YOU IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THESE TERMS EXCEED AN AGGREGATE OF $10.00 FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION.
You agree to indemnify, defend and hold harmless the Company Parties from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from: (a) your breach or alleged breach of these Terms (b) your use of the Site or activities in connection with the Site; (c) your User-Generated Content; (d) your violation of any law, rule or regulation; or (e) your violation of any third party rights. The Company Parties reserve the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with the Company Parties in asserting any available defenses. You will not in any event settle any claim without our prior written consent. If any child you authorize to use or access the Site disaffirms any or all of these Terms, you agree to defend, indemnify and hold us harmless for any damages we suffer by the child's disaffirmance.
10. Infringement Policy and Reporting Procedure.
In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"), our designated agent to receive notices of copyright infringement is Juan Zuñiga, who may be reached by e-mail at firstname.lastname@example.org or by postal mail at GoMind LLC. 488 Tarata Ct, San Diego, California 91911. If you believe that your material has been posted on, or distributed via, the Site in a way that constitutes copyright infringement, please provide the following information to Mr. Zuñiga as required by the DMCA: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (the "complaining party"); (ii) identification of the copyright work(s) claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party; (v) a statement that the complaining party (name, address, telephone number and e-mail address) has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The DMCA provides that a person who knowingly materially misrepresents that material or an activity is infringing may be subject to liability. We may send the information in the notice from the complaining party to the person who provided the allegedly infringing material.
11. Wireless and Downloads.
A. Wireless Features. The Site may offer certain features and services that are available to you via your wireless Internet Device (collectively, "Wireless Features"). Your carrier may charge standard messaging, data, and other fees, which may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding us.
B. Software and Other Items Available for Download. Any items that we make available for download or use from the Site and/or our servers (the "Downloadable Items") will only be made available in areas intended to be accessible by Adults. Downloadable Items are the copyrighted work of us or our licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items.
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS.
Note that if you install certain applications that may be available via the Site, you consent to the download of software to your computer and accept these Terms and any Additional Terms related to such application.
12. General Provisions.
A. Termination and Suspension. We reserve the right to discontinue the Site or suspend or terminate your access to it, including any Accounts or User-Generated Content submitted by you, at any time, without notice, for any reason and without any obligation to you or any third party. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, or violates these Terms, then we may suspend or terminate your Account or deny you access to all or part of the Site. Any suspension or termination will not affect your obligations to us, including any payment obligations to us. Upon suspension or termination of your access to the Site, or upon notice from us, your License to use the Site will terminate immediately.
B. Investigations; Cooperation with Law Enforcement. We reserve the right to: (i) investigate any suspected breaches of security, information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms, (iii) involve and cooperate with law enforcement authorities in investigating any matters, and (iv) prosecute violators of these Terms.
C. Communications. When you communicate with us electronically, such as via a Site communication tool, you consent to receive communications from us electronically. Please note that we will do our best to respond to your inquiry but it may take us some time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
D. Operation of Site; International Issues. We control and operate the Site from our headquarters in San Diego, California, U.S.A., and we make no representation that the Site is appropriate or available for use outside of the United States. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. You and we disclaim any application of the Convention on Contracts for the International Sale of Goods.
E. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed unenforceable by a court or arbitrator, you agree that every attempt will be made to give effect to the parties' intentions as reflected in that provision, and the remaining provisions contained in this Agreement will continue in full force and effect. You agree that these Terms, and Additional Terms, will not be construed against us because we drafted them.
F. Assignment. We may assign our rights and obligations under these Terms, or any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms, and any Additional Terms, may not be assigned by you, and you may not delegate your duties under them.
G. No Waiver. No waiver by us of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of GoMind, LLC.
H. Updates to Terms. We reserve the right to modify these Terms, or any Additional Terms, at any time without prior notice ("Updated Terms"). You agree that we may notify you of the Updated Terms by posting them on the Site, and that your use of the Site after we post the Updated Terms constitutes your agreement to the Updated Terms.
I. Contact Us. If you have any questions or concerns with respect to these Terms or the Site, you may contact us by e-mail at: email@example.com
TM &© GoMind, LLC. All Rights Reserved.