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Terms & Conditions
Terms
and Conditions
Welcome, and thank you
for your interest in Refresh Kid, LLC (“Refresh Kid,” “we,” “us,” or
"our"), which operates the web site located at
https://www.refreshkid.com/ and other websites (collectively, the “Website”)
and related application programming interfaces (“APIs”), mobile applications
and online services, any Downloadable Content (as defined below), and any other
products and services that Company may provide now or in the future
(collectively, the “Services”). The
following Terms and Conditions are a legal contract between you (“you” and
“your”) and Refresh Kid regarding your use of the Services. Visitors and users
of the Services are referred to individually as “User” and collectively as
“Users”. Use of the Services is governed
by these Terms and Conditions and our Refresh Kid Privacy Policy and Refresh
Kid Kids Privacy Policy/COPPA (as applicable to which Services you choose to
use), where the Privacy Policy describes the personal information that we
collect and how we use and share it.
PLEASE READ THE FOLLOWING
TERMS AND CONDITIONS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, OR
USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO
BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, AND ANY ADDITIONAL GUIDELINES
(AS DEFINED BELOW) (COLLECTIVELY, THE “TERMS”), AND THAT YOU HAVE READ THE REFRESH
KID PRIVACY POLICY AND/OR REFRESH KID KIDS PRIVACY POLICY/COPPA (AS APPLICABLE
TO WHICH SERVICES YOU CHOOSE TO USE).
IF YOU ARE A PARENT OR
GUARDIAN AND YOU PROVIDE CONSENT FOR YOUR CHILD TO REGISTER WITH THE WEBSITE,
YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS IN RESPECT OF SUCH CHILD’S
USE OF THE WEBSITE.
PLEASE NOTE THAT THESE
TERMS INCLUDE A BINDING ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER.
BY AGREEING TO BINDING ARBITRATION, TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A
JUDGE OR JURY DECIDE YOUR CASE.
1. Eligibility;
Accounts
THE WEBSITE IS NOT
AVAILABLE TO: (A) ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE WEBSITE BY
REFRESH KID, OR (B) ANY PERSONS WHOSE REGISTRATION HAS NOT BEEN APPROVED BY A
LEGAL PARENT OR GUARDIAN.
1.1. Acceptance
By clicking the “I Agree”
button or by otherwise using or registering an account for the Services, you
represent that (i) you are a US resident, or (ii) you are not a US resident,
and are of legal age of consent to open an account under the laws of your
country of residence, or (iii) your use of the Services has been approved by
your parent or legal guardian. You also
represent that you have not been previously suspended or removed from the
Services by Refresh Kid, and that your registration and your use of the
Services is in compliance with any and all applicable laws.
1.2. Account
In order to use certain
features of the Services, you must register for an account. You may be asked to
provide a password in connection with your account. You are solely responsible for maintaining
the confidentiality of your account and password, and you agree to accept
responsibility for all activities that occur under your account or
password. You agree that the information
you provide to Refresh Kid, whether at registration or at any other time, will
be true, accurate, current, and complete. You also agree that you will ensure that this
information is kept accurate and up-to-date at all times. If you have reason to believe that your
account is no longer secure (e.g., in the event of a loss, theft, or
unauthorized disclosure or use of your account ID or password), then you agree
to immediately notify Refresh Kid at support@refreshkid.com. You may be liable for the losses incurred by Refresh
Kid or others due to any unauthorized use of your Services account.
1.3. Integrated
Service
Refresh Kid may permit
you to register for the Services through, or otherwise associate your Refresh
Kid account with, certain third-party social networking or integrated services,
such as Facebook Connect and Google (“Integrated Service”). By registering for the Services using (or
otherwise granting access to) an Integrated Service, you agree that Refresh Kid
may access your Integrated Service’s account information, and may store and use
certain information already associated with the Integrated Service consistent
with our Privacy Policy, and you agree to any and all terms and conditions of
the Integrated Service regarding your use of the Services via the Integrated
Service. You may revoke Refresh Kid's access to your account on any Integrated
Service at any time by updating the appropriate account settings of the
respective Integrated Service. You should check your privacy settings on each
Integration Service to understand and change the information sent to us through
each Integration Service. You agree that any Integrated Service is a Reference
Site (as defined below) and you are solely responsible for your interactions
with the Integrated Service as a result of accessing the Services through the
Integrated Service. Refresh Kid does not
control the practices of Integrated Services, and you are advised to read the
Privacy Policy and terms and conditions of any Integrated Service that you use
to understand their practices.
1.4. Child
User
If you are under the age
of 18, you represent that your parent or legal guardian has reviewed and agreed
to the Terms on your behalf. A Child
User may use the Services if registered by School Personnel that have entered
into a relationship directly with Refresh Kid, so long as the personnel has
obtained parent or guardian consent, or has complied with an exemption to
parent consent requirements under applicable law. A Child User will only be
permitted to use the Services for so long as Refresh Kid reasonably believes
that such access has been consented to by the Child User’s parent or guardian.
1.5. School
Districts
Refresh Kid may enter
into supplemental written agreements with school districts in the future with
respect to use of the Services on a district-wide basis ("District
Agreements"). Pursuant to District
Agreements, we may provide additional services to school districts, and/or may
provide additional undertakings to school districts with respect to the
Services. Except as otherwise provided
in a District Agreement, these Terms remain in effect for all individual Users
of the Services in the relevant district.
1.6. International
Use
Refresh Kid operates the
Services in the United States. If you
choose to access our Services from locations outside the United States, you
consent to the collection, transmission, use, storage and processing of content
and data (including your personal information) in the United States. You agree to comply with and are solely responsible
for ensuring compliance with all local laws, regulations, and rules in the
jurisdiction in which you reside or access the Services, if and to the extent
local laws are applicable to use of our Services. If you are under the age of 18 (or the age of
majority in the jurisdiction in which you reside), you confirm that you have
received parental consent, if required in your jurisdiction, to open an account
for Service and enter into these Terms.
Unless we have entered into a separate, mutually executed written
agreement with you that says otherwise, we do not represent that our Services
are appropriate or available for use in jurisdictions outside the United
States. The right to access and use the Services is not granted in
jurisdictions, if any, where it may be prohibited, or where your use would
render Refresh Kid in violation of any applicable laws or regulations,
including without limitation, Applicable Privacy Laws.
2. Privacy
Policy
Your privacy is important
to Refresh Kid. Please read the Refresh
Kid Privacy Policy and Refresh Kid Kids Privacy Policy carefully for
information relating to Refresh Kid’s collection, use, and disclosure of your
personal information. Among other
things, our Refresh Kid Privacy Policy and Refresh Kid Kids Privacy Policy
explain how we treat your personal information and protect your privacy when
you use our Services, and explain the procedures by which Users, Parent Users
and School Personnel may view, update, correct, or delete their account and
personal information.
3. Other
Guidelines
When using the Services,
you will be subject to any additional posted guidelines or rules applicable to
specific services and features which may be posted from time to time (the
“Guidelines”). All such Guidelines are
hereby incorporated by reference into the Terms.
4. Modification
of the Terms
4.1. General
Upon opening an account,
you accept the Terms in the form posted on our website. Refresh Kid reserves the right, at our
discretion, to change, modify, add, or remove portions of the Terms at any
time. Please check the Terms and any
Guidelines periodically for changes that are made after you open your
account. Your continued use of the
Services after the posting of changes constitutes your binding acceptance of
such changes. For any material changes
to the Terms, Refresh Kid will make reasonable effort to provide notice to you
of such amended Terms, such as by an email notification to the address
associated with your account or by posting a notice on the Services, and such
amended terms will be effective against you on the earlier of (i) your actual
notice of such changes and (ii) thirty days after Refresh Kid makes reasonable
attempt to provide you such notice.
However, changes addressing new functions for a service or changes made
for legal reasons will be effective immediately. If you do not agree to the modified Terms,
you must discontinue your use of the Services. Disputes arising under these
Terms will be resolved in accordance with the version of the Terms in place at
the time the dispute arose.
5. User
Content License Grant
5.1. User
Content and Ownership
Refresh Kid may permit
(a) the posting and/or publishing by you and other Users of notes, questions,
comments, ratings, reviews, images, videos and other audio-visual materials and
communications (collectively, “User Postings”) and (b) the posting, creation,
or modification by you and other users of computer code (including source code
and object code) (“User Code”) (User Postings and User Code, collectively,
“User Content”). You understand that whether or not such User Content is
published, Refresh Kid does not guarantee any confidentiality with respect to
any submissions. Consistent with Applicable Law, as between Refresh Kid and
you, you retain all ownership rights you have in any User Content you post or
publish to the Services, and Refresh Kid does not claim any ownership rights in
or to such User Content. You acknowledge that you are solely responsible for
your User Content and the consequences of posting, creating, or publishing such
User Content.
5.2. License
Grant to Refresh Kid
By posting, submitting or
distributing User Content on or through the Services, you hereby grant to Refresh
Kid a worldwide, non-exclusive, transferable, assignable, fully paid-up,
royalty-free right and license to (a) host, transfer, display, perform,
reproduce, distribute, prepare derivative works of, use, make, have made,
import, and otherwise exploit your User Content, in whole or in part, in any
media formats and through any media channels (now known or hereafter developed,
to the extent consistent with applicable law and Refresh Kid’s Privacy
Policy). Such license is perpetual and
irrevocable, except to the extent required to comply with Applicable Privacy
Law relating to ownership and control of your personal information, including
education records..
5.3. License
Grant to Users
5.3.1
User Postings. By posting, submitting or distributing User
Postings through the Services, you hereby grant to each User of the Services a
non-exclusive license to access and use your User Postings in any manner
permitted or made available by Refresh Kid on or through the Services.
5.3.2
User Code. By posting, submitting or distributing User
Code through the Services, you hereby grant to each User of the Services a
non-exclusive license to access, use, reproduce, and distribute your User Code
as fully permitted under, and in accordance with the terms of, the MIT license
(the “MIT License”).
5.3.3
Downloadable Content. The Services may permit you to download
mobile applications or certain digital educational content ("Downloadable
Content"). Subject to your complete and ongoing compliance with all the
terms and conditions set forth herein, Refresh Kid grants you, a limited,
non-exclusive, non-transferable, non-sublicensable, revocable license to
download, install, view and use the Downloadable Content, in object code form,
on devices owned or controlled by you, solely for your personal, non-commercial
purposes. You agree not to (i) modify or
create derivative works of the Downloadable Content (ii) remove, disable,
circumvent or otherwise create or implement any workaround to any copy
protection, rights management, technical limitations or security features in or
protecting the Downloadable Content, and (iii) remove any copyright and other
proprietary notices on the Downloadable Content and all copies thereof.
5.4. Access
to Your User Content
Refresh Kid may permit
Users to share their User Content with a select group of other Users, or make
their User Content public for all (even non-Services users) to view. You acknowledge and agree that, although Refresh
Kid may provide certain features intended to allow you to restrict some User
Content you create from others, Refresh Kid does not guarantee that such User
Content will never be accessible by others. In the event of unauthorized
access, Refresh Kid will use reasonable efforts to notify you. REFRESH KID HEREBY DISCLAIMS ANY AND ALL
LIABILITY WITH RESPECT TO ANY UNAUTHORIZED ACCESS TO ANY RESTRICTED USER
CONTENT.
5.5. User
Content Disclaimer
You understand that when
using the Services you will be exposed to User Content from a variety of sources,
and that Refresh Kid is not responsible for the accuracy, usefulness, or
intellectual property rights of or relating to such User Content. You further understand and acknowledge that
you may be exposed to User Content that is inaccurate, offensive, indecent or
objectionable, and you agree to waive, and hereby do waive, any legal or
equitable rights or remedies you have or may have against Refresh Kid with
respect thereto. Refresh Kid does not
endorse any User Content or any opinion, recommendation or advice expressed
therein, and Refresh Kid expressly disclaims any and all liability in
connection with User Content.
5.6. Feedback
By submitting suggestions
or other feedback related to our Services to us, you agree that we can (but do
not have to) use and share such feedback for any purpose without compensation
to you. We will honor any limits we agree to at the time we collect feedback.
6. Digital
Millennium Copyright Act
It is Refresh Kid’s
policy to respond to notices of alleged copyright infringement that comply with
the Digital Millennium Copyright Act. Refresh
Kid will promptly terminate without notice your access to the Services if you
are determined by Refresh Kid to be a “repeat infringer.” A repeat infringer is a User who has been
notified by Refresh Kid of infringing activity violations more than twice
and/or who has had User Content or any other user-submitted content removed
from the Services more than twice.
7. Proprietary
Materials; Licenses
7.1. Proprietary
Materials
The Services are owned
and operated by Refresh Kid. The visual
interfaces, graphics, design, compilation, information, computer code
(including source code or object code), software, services, content,
educational videos and exercises, and all other elements of the Services (the
“Services Materials”) are protected by United States and international
copyright, patent, and trademark laws, international conventions, and other
applicable laws governing intellectual property and proprietary rights. Except
for any User Content provided and owned by Users and except as otherwise set
forth in this Section 7 (Proprietary Materials; Licenses), all Services
Materials, and all trademarks, service marks, and trade names, contained on or
available through the Services are owned by or licensed to Refresh Kid, and Refresh
Kid reserves all rights therein and thereto not expressly granted by these
Terms.
7.2. Licensed
Educational Content
Refresh Kid may make
available on the Services certain educational videos, exercises, and related
supplementary materials that are owned by Refresh Kid or its third-party
licensors (the “Licensed Educational Content”).
Refresh Kid grants to you a non-exclusive, non-transferable right to
access and use the Licensed Educational Content as made available on the
Services by Refresh Kid solely for your personal, non-commercial purposes. Unless expressly indicated on the Services
that a particular item of Licensed Educational Content is made available to
Users under alternate license terms, you may not download, distribute, sell,
lease, modify, or otherwise provide access to the Licensed Educational Content
to any third party.
7.2.1
Alternate Licenses. In certain cases, Refresh Kid or its
licensors may make available Licensed Educational Content under alternate
license terms, such as a variant of the Creative Commons License (as defined
below) (each, an “Alternate License”). Where expressly indicated as such on the
Services, and subject to the terms and conditions of these Terms, the
applicable Licensed Educational Content is licensed to you under the terms of
the Alternate License. By using,
downloading, or otherwise accessing such Licensed Educational Content, you
agree to comply fully with all the terms and conditions of such Alternate
License.
7.2.3
Creative Commons License. Unless expressly otherwise identified on the
Services with respect to a particular item of Licensed Educational Content, any
reference to the “Creative Commons”, “CC” or similarly-phrased license shall be
deemed to be a reference to the Creative Commons Attribution-NonCommercial-ShareAlike
3.0 United States License (the “Creative Commons License”).
7.3. Non-Commercial
Use
The Licensed Educational
Content and Licensed Educational Code are intended for personal, non-commercial
use only. Without limiting the
foregoing, and notwithstanding the terms of any Alternate License for such Licensed
Educational Content, the Licensed Educational Content may not be used,
distributed or otherwise exploited for any commercial purpose, commercial
advantage or private monetary compensation, unless otherwise previously agreed
in writing by Refresh Kid.
7.3.1 Impermissible
Uses. Without limiting the generality of the
foregoing, the following are types of uses that Refresh Kid expressly defines
as falling outside of “non-commercial” use:
7.3.1.1 the
sale or rental of (1) any part of the Licensed Educational Content, (2) any
derivative works based at least in part on the Licensed Educational Content, or
(3) any collective work that includes any part of the Licensed Educational
Content;
7.3.1.2 providing
training, support, or editorial services that use or reference the Licensed
Educational Content in exchange for a fee; and
7.3.1.3 the sale of
advertisements, sponsorships, or promotions placed on the Licensed Educational
Content, or any part thereof, or the sale of advertisements, sponsorships, or
promotions on any website or blog containing any part of the Licensed
Educational Material, including without limitation any “pop-up advertisements”.
7.4. Crediting
Refresh Kid
If you distribute,
publicly perform or display, transmit, publish, or otherwise make available any
Licensed Educational Content or any derivative works thereof, you must also
provide the following notice prominently along with such Licensed Educational
Content or derivative work thereof: “All Refresh Kid content is available for
free at https://www.refreshkid.com/index” and adhere to the Refresh Kid brand
guidelines.
8. Prohibited
Conduct
YOU AGREE NOT TO:
8.1. use
the Services for any commercial use or purpose unless expressly permitted by
Refresh Kid in writing, it being understood that the Services and related
services are intended for personal, non-commercial use only;
8.2. except
as expressly permitted under Sections 5.3 (License Grant to Users) and 7
(Proprietary Materials; Licenses) of these Terms, rent, lease, loan, sell,
resell, sublicense, distribute or otherwise transfer the licenses for any
Services Materials;
8.3. post,
upload, or distribute any defamatory, libelous, or inaccurate User Content or
other content;
8.4. post,
upload, or distribute any User Content or other content that is unlawful or
that a reasonable person could deem to be objectionable, offensive, indecent,
pornographic, harassing, threatening, embarrassing, distressing, vulgar,
hateful, racially or ethnically offensive, promoting of violence, hostility, or
discrimination, or otherwise inappropriate;
8.5. use
the Services in any manner that is harmful to minors, or in any manner that
violates Refresh Kid’s Community Guidelines;
8.6. impersonate
any person or entity, falsely claim an affiliation with any person or entity,
or access the Services accounts of others without permission, create accounts
via bots or other automated means, or perform any other fraudulent activity;
8.7. develop,
support or use software, devices, scripts, robots, or any other means or
processes (including crawlers, browser plugins and add-ons, or any other
technology) to scrape the Services or otherwise copy lessons and other data
from the Services;
8.8. Use
bots or other automated methods to access the Services;
8.9. delete
(or otherwise obscure or alter) the copyright or other proprietary rights
notices on the Services or on any Licensed Educational Content, Licensed
Educational Code, or User Content;
8.10.
assert, or authorize, assist, or encourage
any third party to assert, against Refresh Kid or any of its affiliates or
licensors any patent infringement or other intellectual property infringement
claim regarding any Licensed Educational Content, Licensed Educational Code, or
User Content you have used, submitted, or otherwise made available on or
through the Services;
8.11. make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Services (including, but not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising