Terms of Use for ABCYA.COM
The Effective Date of these Terms of Use is May 17, 2012
These Terms of Use (“Terms”) apply to the ABCYA.Com web site and its features, as well as any mobile or software application, widgets or online services that post a link to these Terms, whether accessed via computer, mobile device or otherwise (collectively, the “Site”). The Site is owned and controlled by ABCya.com LLC (“ABCya”). IMPORTANT! PLEASE CAREFULLY READ THESE TERMS BEFORE USING THE SITE, INCLUDING WITHOUT LIMITATION, BY INSTALLING OR DOWNLOADING AN APPLICATION, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. These Terms do not apply to any other web site or any offline activities by ABCya (unless specifically stated). You agree to these Terms by accessing or using the Site or downloading any application or other content. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT USE THE SITE OR DOWNLOAD THE APPLICATION OR OTHER CONTENT.
There may be times when we offer a special feature that has its own terms and conditions that apply in addition to these Terms. In those cases, the terms specific to the special feature control to the extent there is a conflict with these Terms.
Please also review the terms of the Site's Privacy Policy
TABLE OF CONTENTS
OWNERSHIP OF SITE CONTENT
YOUR LICENSE TO USE SITE CONTENT ON OUR SITE
APPLICATIONS
INFORMATION AND CONTENT YOU SUBMIT
THIRD PARTY LINKS, CONTENT AND APPLICATIONS
LINKING POLICY
DISCLAIMER OF WARRANTIES
LIMITATION OF LIABILITY; WAIVER
INDEMNIFICATION
TERMINATION
LOCATION OF SITE AND TERRITORIAL RESTRICTIONS
GOVERNING LAWS; JURISDICTION; COMMENCEMENT OF ACTIONS
REPORTING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY VIOLATIONS
MISCELLANEOUS
OUR RIGHT TO UPDATE THESE TERMS
OWNERSHIP OF SITE CONTENT
Unless otherwise explicitly specified, all materials that are included in or are otherwise a part of the Site, including past, present and future versions, domain names, source and object code, the Application Content (defined below) and the “look and feel” of the Site (collectively, the "Site Content") are owned, controlled or licensed by ABCya, its subsidiaries or affiliates, and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, and other laws, rules, regulations and treaties.
The Site Content may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express permission of ABCya, unless and except as is expressly provided in these Terms. Any unauthorized use of the Site Content is prohibited.
YOUR LICENSE TO USE SITE CONTENT ON OUR SITE
You may visit our Site without further permission from ABCya and ABCya grants you a limited, personal, non-exclusive, non-commercial, revocable and non-transferable license to download, view and play the Site Content. This license is subject to your full compliance with these Terms. When you download or use the Site Content, you must: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Site Content; and (c) not allow or assist any third party (whether or not for your benefit) to copy or adapt any object code associated with the Site or reverse engineer, modify or attempt to discover any source code associated with the Site. You also agree that you will not, including by using any robot, scraper, or other data mining technology or process, frame, mask, extract data from, copy or distribute the Site Content (except as may be a result of standard search engine or Internet browser usage).
We reserve all other rights to the Site and Site Content. You may not otherwise copy, reproduce, distribute, publish, display, perform, or create derivative works of the Site or Site Content without our permission. You also may not transfer, resell or sublicense this limited right to use the Site.
The Site offers features and services that are available to you via your mobile device, which features and services may include, without limitation, (i) applications featuring educational games, including all content, information, data, designs, code, and materials associated with the application and all derivative works of the foregoing (“Application Content”); and (ii) any files that are delivered to you by ABCya (via online transmission, through a third party distributor, or otherwise) to patch, update, or otherwise modify the application (collectively, the "Applications"). The Applications are the copyrighted works of ABCya and contain trademarks, service marks, trade names, and other intellectual property of ABCya.
If you are accessing an Application via Apple Inc.'s ("Apple") App Store, you acknowledge that Apple is not a party to and has not agreed to these Terms and that Apple is not a sponsor of, affiliated with and does not otherwise endorse any Application.
We may charge for an Application and these charges will be disclosed prior to completion of download of the Application. By downloading and/or installing a paid Application, you agree to pay the purchase fee. ABCya may change pricing for the Application or Application Content. We do not provide price protection or refunds due to price reductions, promotional pricing, or any other changes to pricing for any reason. Also, standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Applications and certain Applications may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
INFORMATION AND CONTENT YOU SUBMIT
Any content you submit to ABCya or the Site, through a “contact us” mechanism or otherwise, will be treated as non-confidential and non-proprietary and will not be returned. You agree that ABCya is free to use any ideas or concepts you submit to us for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and services; and creating informational articles, without any payment of any kind to you.
THIRD PARTY LINKS, CONTENT AND APPLICATIONS
There may be links from the Site, or from communications you receive from the Site, to third party web sites or online features. The Site also may include third party content that we do not control, maintain or endorse. Functionality on the Site may also permit interactions between the Site and a third party web site or online feature, including applications that connect the Site or your profile on the Site with a third party site. For example, the Site may include a button enabling you to indicate, on your social networking page, that you “like” ABCya or the Site, or a feature that lets you post to your social networking page a link to a specific Site product or the ability to share content from the Site or your User Content posted at the site with a third party, which may be publicly posted on that third party’s web site. Using this functionality typically requires you to login to your account on the third party Site and you do so at your own risk. We do not control any of these third party sites or any of their content. You expressly acknowledge and agree that we are in no way responsible or liable for third party content, sites or online features.
ABCya grants you the revocable permission to link to the Site; provided, however, that any link to the Site: (a) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site; (b) must not imply that ABCya or the Site is endorsing or sponsoring it or its products, unless ABCya has given it prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in ABCya's sole opinion, harm ABCya or its products or services; (d) must not use any ABCya trademarks without the prior written permission from ABCya; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in ABCya's sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. Notwithstanding anything to the contrary contained in these Terms, ABCya reserves the right to prohibit linking to the Site for any reason in our sole and absolute discretion.
THE SITE, INCLUDING, WITHOUT LIMITATION, THE SITE CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ABCYA OR ANY OF ITS EMPLOYEES, MANAGERS, OFFICERS, AGENTS, OR VENDORS (COLLECTIVELY, THE "ABCYA PARTIES") MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE SITE. IN ADDITION, THE ABCYA PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE ABCYA PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE ABCYA PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION ON THE SITE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE ABCYA PARTIES DO NOT WARRANT THAT YOUR USE OF THIS SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE ABCYA PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. BY ACCESSING OR USING THE SITE, INCLUDING DOWNLOADING OR INSTALLING THE APPLICATION, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THESE TERMS.
LIMITATION OF LIABILITY; WAIVER
UNDER NO CIRCUMSTANCES WILL THE ABCYA PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SITE OR THE SITE CONTENT; (B) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE ABCYA PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE; (D) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (E) ANY ERRORS OR OMISSIONS IN THE SITE'S TECHNICAL OPERATION; OR (F) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, 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, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE ABCYA PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE). IN NO EVENT WILL THE ABCYA PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE ABCYA PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF ABCYA'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER SITE CONTENT OWNED OR CONTROLLED BY THE ABCYA PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER SITE CONTENT OWNED OR CONTROLLED BY THE ABCYA PARTIES.
BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
You agree to defend, indemnify and hold the ABCya Parties harmless from and against any and all claims, damages, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys' fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) your use of the Site or activities in connection with the Site; (b) your breach or anticipatory breach of these Terms; (c) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (d) the ABCya Parties' use of your information as permitted under these Terms, the Privacy Policy, or any other written agreement between you and ABCya. You will cooperate as fully required by the ABCya Parties in the defense of any claim. The ABCya Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the ABCya Parties.
ABCya reserves the right to terminate your access to and use of the Site in its sole discretion, without notice and liability, including, without limitation, if ABCya believes your conduct fails to conform with these Terms. ABCya also reserves the right to investigate suspected violations of these Terms. Any violation of these Terms may be referred to law enforcement authorities.
LOCATION OF SITE AND TERRITORIAL RESTRICTIONS
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject ABCya to any registration requirement within such jurisdiction or country. ABCya controls and operates the Site from offices located in the United States and makes no representations or warranties that the information, products or services contained on the Site are appropriate for use or access in other locations.
GOVERNING LAWS; JURISDICTION; COMMENCEMENT OF ACTIONS
THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF VERMONT, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SITE, THE USE OR ACCESS THEREOF, OR THESE TERMS MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN PROVIDENCE COUNTY, RHODE ISLAND AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED IN PROVIDENCE COUNTY, RHODE ISLAND FOR ANY SUCH LEGAL PROCEEDING AND WAIVE ANY RIGHT TO RESORT TO ANY FORM OF CLASS ACTION.. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO ANY SITE MUST BE COMMENCED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
REPORTING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY VIOLATIONS
You may not use the Site for any purpose or in any manner that infringes the rights of any third party. ABCya encourages you to report any content on the Site that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Site infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"), ABCya has a designated agent for receiving notices of copyright infringement and ABCya follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide ABCya's copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) 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; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party 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 (f) 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.
If you believe that any content on the Site violates your rights other than copyrights, please provide ABCya with at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) 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; (c) an explanation of what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you.
Please send your notice of claims of copyright infringement on or regarding the Site or other complaint regarding alleged violation of rights to ABCya’ s copyright agent, who can be reached as follows:
Abcya.com DMCA Copyright Agent
501 Angel Street, Providence, RI UNIT 2
By phone: (855) 250-9249
By email: info [at] abcya [dot] com
NOTE: This contact information is for inquiries regarding potential copyright and other infringement only.
We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
ABCya will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party's intellectual property rights.
You agree that you will be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed to access and use the Site. The failure of ABCya to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit ABCya's rights with respect to such breach or any subsequent breaches. No waiver by ABCya of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of ABCya. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. ABCya may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without ABCya's prior written consent. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against ABCya by virtue of ABCya having drafted them.
OUR RIGHT TO UPDATE THESE TERMS
ABCya reserves the right to modify or add to these 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 so that they are accessible via a link on the home page, and that your use of the Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms before using the Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Site from that point forward.
