Last Updated: September 4, 2013
Welcome to SmarterCookie, a video coaching and sharing platform consisting of websites including www.beasmartercookie.com, services, mobile applications including the SmarterCookie App and networks that allows for the distribution of videos and written digital content over the internet (the "SmarterCookie Platform"). SmarterCookie is owned and operated by SmarterCookie, Inc. (“SmarterCookie”).
SMARTERCOOKIE IS A PLATFORM FOR ADULT EDUCATORS. K-12 students attempting to access content from the SmarterCookie platform without the consent of a teacher/instructor are in direct violation of these Terms. Any student pretending to be an educator, impersonating an educator, or making fraudulent claims to be an educator will be immediately removed from the SmarterCookie platform and may be subject to disciplinary actions within his/her school. BY USING THE SMARTERCOOKIE PLATFORM, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SMARTERCOOKIE PLATFORM. The content on the SmarterCookie Platform is only available for you to use for educational, non-commercial purposes; any other use is prohibited.
3. Individual Features and Services
When using the SmarterCookie Platform, you will be subject to all additional posted guidelines or rules applicable to the SmarterCookie services and features (the "Guidelines"). All such Guidelines are hereby incorporated by reference into these Terms.
4. Modification of These Terms
SmarterCookie reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time with or without notice. Please check these Terms and any Guidelines periodically for changes. Your continued use of the SmarterCookie Platform after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms, such amended terms will automatically be effective thirty days after they are initially posted with a conspicuous notice informing users of the changes on the SmarterCookie Platform.
5. Ownership and License Grants
The SmarterCookie Platform is owned and operated by SmarterCookie. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, services, and all other elements of the SmarterCookie Platform provided by SmarterCookie(the "Materials") are protected by United States copyright, patent, trade secret, trade dress and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for User Content (as defined below) that is provided and owned by Users, all Materials contained on the SmarterCookie Platform are the property of SmarterCookie or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to SmarterCookie or its affiliates and/or third-party licensors. Except as expressly authorized by SmarterCookie, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. SmarterCookie reserves all rights not expressly granted in these Terms.
- License Grant to Upload. Subject to your compliance with these Terms, SmarterCookie hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to use the SmarterCookie Platform for the uploading and distributing of authorized digital content, including videos ("User Content"). User Content is uploaded at your own risk. Although SmarterCookie will use commercially reasonable security measures to protect unauthorized copying of User Content, SmarterCookie cannot guarantee that there will be no unauthorized copying or distribution of User Content, nor will SmarterCookie be liable for any copying or usage of the User Content not authorized by SmarterCookie.
- License Grant to Download. Subject to your compliance with these Terms, SmarterCookie hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to view and download User Content solely through the SmarterCookie Platform. However, the foregoing license is subject to the limitations on use under which such User Content is distributed, as some User Content cannot be downloaded.
- Ownership of User Content and License Grant. You retain all ownership rights in User Content that you upload to the SmarterCookie Platform. However, by uploading the User Content to the SmarterCookie Platform, you are granting SmarterCookie and others you explicitly share User Content with, the right to use your User Content. Therefore, unless otherwise agreed to in a separate written agreement between you and SmarterCookie signed by an authorized representative of SmarterCookie, the following applies to all User Content uploaded through the SmarterCookie Platform:
- You hereby grant to SmarterCookie a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, compress or convert for distribution, and otherwise exploit your User Content, in any media formats and through any media channels. Such license will apply to any form, media, or technology now known or hereafter developed. This license grant will continue even if your User Content is removed from the SmarterCookie Platform by you or otherwise. By uploading User Content, you hereby warrant that your User Content is free of any digital rights management protections or functionality, including any software designed to limit the number of times User Content may be copied or played.
- By distributing or disseminating User Content through the SmarterCookie Platform, you hereby grant to each authorized User of the SmarterCookie Platform a non-exclusive license to access and use your User Content under the terms indicated by you when you uploaded such User Content, which shall at least include a limited, non-exclusive, personal license to view and download such User Content in the manner contemplated by these Terms and the SmarterCookie Platform. The foregoing license granted by you terminates as to a specific piece of User Content once you remove or delete such User Content from the SmarterCookie Platform provided, however, the right to such User Content arising out of distributions occurring on or prior to deletion of such User Content from the SmarterCookie Platform survives the removal or deletion of such User Content.
6. Representations and Warranties Regarding User Content
You are solely responsible for your User Content and the consequences of posting or publishing them. By uploading and publishing your User Content, you affirm, represent, and warrant that:
- your User Content does not and will not: (1) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, or (2) slander, defame, or libel any other person; and
- Your User Content does not contain any viruses, adware, spyware, worms, or other malicious code.
- You understand that when using the SmarterCookie Platform you will be exposed to User Content from a variety of sources, and that SmarterCookie 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 are 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 SmarterCookie with respect thereto. SmarterCookie does not endorse any User Content or any opinion, recommendation or advice expressed therein, and SmarterCookie expressly disclaims any and all liability in connection with User Content. If notified by a User or a content owner of User Content that allegedly does not conform to these Terms, SmarterCookie may investigate the allegation and determine in its sole discretion whether to remove the User Content, which it reserves the right to do at any time and without notice.
7. Prohibited Content
The following behaviors are prohibited by SmarterCookie. You hereby agree that you shall not:
- use the SmarterCookie Platform for any purposes other than to disseminate or receive original or appropriately licensed content and/or to access the SmarterCookie Platform as such services are offered by SmarterCookie;
- rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials;
- post, upload, or distribute any defamatory, libelous, or inaccurate User Content;
- 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, invasive of another's privacy, harassing, threatening, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the SmarterCookie Platform accounts of others without permission, forge another persons' digital signature, misrepresent the source, identity, or content of information transmitted via the SmarterCookie Platform, or perform any other similar fraudulent activity;
- delete the copyright or other proprietary rights on the SmarterCookie Platform or User Content;
- make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the SmarterCookie Platform. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
- use the SmarterCookie Platform for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
- harass, abuse, threaten or defraud Users of the SmarterCookie Platform, or collect, or attempt to collect, personal information about Users or third parties without their consent;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of the SmarterCookie Platform or User Content, features that prevent or restrict use or copying of any content accessible through the SmarterCookie Platform, or features that enforce limitations on the use of the SmarterCookie Platform or User Content;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the SmarterCookie Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- modify, adapt, translate or create derivative works based upon the SmarterCookie Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- intentionally interfere with or damage operation of the SmarterCookie Platform or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- relay email from a third party's mail servers without the permission of that third party;
- use any robot, spider, scraper, or other automated means to access the SmarterCookie Platform for any purpose or bypass any measures SmarterCookie may use to prevent or restrict access to the SmarterCookie Platform;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the SmarterCookie Platform;
- interfere with or disrupt the SmarterCookie Platform or servers or networks connected to the SmarterCookie Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the SmarterCookie Platform;
- post, upload or distribute marketing material, advertisements, spam, content designed to aid search engine optimization, content in HTML format with links or redirects, or other commercial content that detracts from the SmarterCookie experience; and
- use the SmarterCookie platform if you are a student and do not have the direct consent of a teacher/instructor, or impersonate an educator or fraudulently pretend to be an educator to use the SmarterCookie Platform.
SmarterCookie reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized or inappropriate use of the SmarterCookie Platform, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
When you use the SmarterCookie Platform to upload content or any products, services, or information from SmarterCookie, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to SmarterCookie on registration and at all other times 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, password, or any credit, debit or charge card number, if applicable), then you agree to immediately notify SmarterCookie. You may be liable for the losses incurred by SmarterCookie or others due to any unauthorized use of your SmarterCookie Platform account.
9. Third-Party Sites, Products and Services; Links
The SmarterCookie Platform may include links or references to other web sites or services solely as a convenience to Users ("Reference Sites"). SmarterCookie does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the SmarterCookie Platform are solely between you and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
You agree that SmarterCookie, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) you may have with SmarterCookie or your use of the SmarterCookie Platform and remove and discard all or any part of your account, User profile, and any User Content, at any time. SmarterCookie may also in its sole discretion and at any time discontinue providing access to the SmarterCookie Platform, or any part thereof, with or without notice. You agree that any termination of your access to the SmarterCookie Platform or any account you may have or portion thereof may be effected without prior notice, and you agree that SmarterCookie will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies SmarterCookie may have at law or in equity. Your only remedy with respect to any dissatisfaction with (a) the SmarterCookie Platform, (b) any of the Terms, (c) any policy or practice of SmarterCookie in operating the SmarterCookie Platform, or (d) any content or information transmitted through the SmarterCookie Platform, is to terminate your account and your use of the SmarterCookie Platform.
11. Indemnification; Disclaimer; Limitation of Liability
You agree to indemnify, defend and hold SmarterCookie, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the SmarterCookie Platform, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. SmarterCookie reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify SmarterCookie, and you agree to cooperate with SmarterCookie's defense of these claims. SmarterCookie will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
YOU EXPRESSLY AGREE THAT THE USE OF THE SMARTERCOOKIE PLATFORM IS AT YOUR SOLE RISK. THE SMARTERCOOKIE PLATFORM AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT (INCLUDING COMMERCIAL CONTENT), REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SMARTERCOOKIE PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. SMARTERCOOKIE DOES NOT WARRANT THAT THE DATA, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SMARTERCOOKIE PLATFORM OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SMARTERCOOKIE, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SMARTERCOOKIE PLATFORM OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS.
UNDER NO CIRCUMSTANCES WILL SMARTERCOOKIE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS (INCLUDING USER CONTENT AND COMMERCIAL CONTENT) OR THE SMARTERCOOKIE PLATFORM OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH SMARTERCOOKIE, EVEN IF SMARTERCOOKIE OR A SMARTERCOOKIE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL SMARTERCOOKIE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, YOUR USE OF THE SMARTERCOOKIE PLATFORM OR YOUR INTERACTION WITH OTHER SMARTERCOOKIE PLATFORM USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SMARTERCOOKIE PLATFORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
12. United States Export Controls
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency.