I CAN! KIDS USER AGREEMENT
Version: November 28, 2013
1. Welcome to the icankids.com website! icankids.com includes all the features and services that I Can! Kids (“I Can! Kids”) makes available through www.icankids.com and all other websites we operate, email newsletters and other email, or other media or services we offer to consumers from time to time (collectively the “Site”). The Site provides various tools and services including without limitation, the creation of personalized books (collectively, the “Services”). Any user who wishes to access the Site or use any Services must accept the terms and conditions of this User Agreement (the “Agreement”), without change and you agree to be bound by all terms and conditions of this agreement and all policies and guidelines incorporated by reference. If you (or if you are under the age of 18, your parents, teachers, or guardians) do not accept these terms, you are not authorized to use this Site. Please review the Agreement carefully before using the Site. If you continue to use this Site, this use will constitute your acceptance of these Terms as well as our posting of any changes or modifications.
2. If you are 18 years of age or younger, you must have received teacher, legal parental or guardian consent to use this site. You must be 18 years of age or older to purchase the Service and can lawfully enter into and form contracts under applicable law. Every person who uses the Services hereby represents to I Can! Kids that he or she is either eighteen (18) years of age or older and may otherwise enter into and form binding contracts under applicable law. If you are under the age of 18, you acknowledge that your parent, teacher or guardian has reviewed and accepted these Terms on your behalf. Persons under the age of eighteen (18) can use the Services only in conjunction with, and under the supervision of their teacher, parent or guardian.
3. If you are a teacher, you represent that you have the authority to accept these Terms on your students’ behalf.
Registration and Representation
4. Registration with the Site is required to use many of the Services, including without limitation, creating personalized books. The registration process requires certain personal information such as your name, address, phone number and email address, along with other information that may be required from time to time. You agree (a) to provide true, accurate, current and complete information about yourself as requested by I Can! Kids; and (b) to maintain and promptly update your account information to keep it true, accurate, current and complete.
Using the Site and Services
5. While using the Site and Services, (a) you agree to be responsible for all use of your account, including all actions that take place through your account; (b) you agree to maintain the security of your password and those of your students, if applicable; (c) you agree not to violate any laws, our policies, third party rights or use the Site for any illegal, malicious or unauthorized purpose; (d) you understand that you cannot use the Site if you have been temporarily or indefinitely suspended from the Site; (e) you agree not to register with inaccurate, false, out-dated or incomplete contact information; (f) you agree not to harvest, collect or obtain users’ content or information or access the Site using manual or automated means including without limitation, robots, bots, spiders or scrapers without their consent and that of I Can! Kids; (g) you agree not to copy, modify or distribute content from the Site; (h) you agree not to transmit any worms, viruses, malware or other technologies of a destructive nature; (i) you agree not to modify, adapt or hack the Site or modify another website so as to falsely imply that it is associated with the Site; (j) you agree not to use the Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any user’s use and enjoyment of the Site; (k) you agree and acknowledge that you bear sole responsibility for keeping your password secure and accept all responsibility for all activity related to your account; (l) you agree not to circumvent or manipulate our fee structure, the billing process, or fees owed to I Can! Kids; (m) you agree to abide by our purchasing obligations and guidelines outlined in this Agreement; (n) you may not charge any third party for access to or use of the Services; (o) you may not access the Service though means other than as intended by I Can! Kids; and (p) you may not use the Services for any purpose other than that which it was designed.
6. On its Site, I Can! Kids is a service provider only and does not completely control the Content displayed on or accessible through the Service. I Can! Kids does not usually monitor the Content inputted by the users of the Service and has limited control over the quality, morality, truthfulness, legality or accuracy of various aspects of the Content inputted by Users of the Service.
Abuse, Misuse and Prohibited Activity
7. The Site and Services may only be used for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding use of the Site and Services. For any reason or no reason, I Can! Kids may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access to the Site and refuse to provide our Services without notice or liability to you.
Use of Site
9. You must exercise proper care and reasonable judgment in using the Site and Services. You are responsible for any information, material or content including without limitation data, text, information, software, photographs, videos, or any other materials whatsoever (the “Content”), you place on or transmit to or through the Site or Services whether publicly posted or privately transmitted. You represent and warrant that you own or otherwise control all rights to the Content and that public posting, use of the Content and will not infringe upon or violate the rights of any third party. When you post Content to our Site, you retain ownership of and all right to any Content that you create, including copyright and other intellectual property rights. You may not impersonate any third party without their consent.
10. By posting Content, you grant I Can! Kids and its subsidiaries and affiliates the world-wide, royalty free, irrevocable, non-exclusive, transferable and fully sub-licensable right and license to use, reproduce, adapt and create derivative works of any of your Content in any form, anywhere and for any purpose, subject to an obligation upon I Can! Kids to use reasonable efforts to discontinue using your Content if you advise I Can! Kids in writing. You agree that your creation of Content is not in any way based upon any expectation of compensation from I Can! Kids.
Copyright and Intellectual Property Infringement
12. By using the Services, you will have access to personalized books, including lesson plans, illustrations, graphics, text and (collectively, “I Can! Materials”). I Can! Kids maintains intellectual property rights in respect of all I Can! Materials downloaded or printed from our Site. These rights are not transferred or licensed when you use the Services. I Can! Kids makes available to its users tools, such as lesson plans and the ability to create personalized books. So long as you comply with the Terms, you are granted a limited, revocable license to use these tools and to use I Can! Materials.
13. All content, referred to as I Can! Kids Materials included on the Site, such as, without limitation, text, graphics, logos, button icons, images, digital downloads, data compilations, and software, is the property of I Can! Kids, and where applicable, its content suppliers and protected by Canada, United States, and International copyright, trademark and other intellectual property laws. You shall have no right or license to download, reproduce, distribute, publish, modify, display, broadcast, hyperlink to or transmit in any manner or by any means or store in an information retrieval system any such content without I Can! Kids’ and/or third party proprietors prior written consent (as the case may be). All rights not expressly granted herein are reserved. Any unauthorized use of the materials appearing on this Site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
14. I Can! Kids respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright or trademark infringement, please provide notice to I Can! Kids’ as required in this Agreement and include (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or trademark interest; (b) a description of the copyrighted or trademarked work that you claim has been infringed upon; (c) a description of where the material that you claim is infringing is located on the Site, including the listing ID number, if applicable; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright or trademark owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright or trademark owner’s behalf.
Limitation of Liability
15. You will be solely responsible for any loss or damage resulting from any transaction and/or use of the Site or Services. Under no circumstance shall I Can! Kids be liable to you or anyone in any way for any loss of money, goodwill, reputation, or any special, indirect or consequential damages arising, directly or indirectly, out of your use of or your inability to use our Site and/or Services, arising out of or in connection with this Agreement, resulting from any goods or services purchased or obtained, messages received, resulting from users’ actions or inactions, or transactions entered into through the Services, or from any information, content, materials, products (including software), or Services included or otherwise made available to you through the Site, and whether such damages arise under theory of contract, tort (including negligence), strict liability or otherwise. To the extent legally permitted, I Can! Kids excludes all implied warranties, terms and conditions. Some jurisdictions do not allow the disclaimer of warranties or exclusion of liabilities, so such disclaimers and exclusions may not apply to you. Regardless of the foregoing statement, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the total amount you paid to us in the 12 months prior to the action giving rise to the liability, or (b) $100. You agree that notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site and/or Services consistent with the terms of this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
16. You acknowledge and agree that this Section is an essential and material term of this Agreement, and that without the provisions herein, this Agreement would not have been entered into by I Can! Kids.
17. By visiting the Site, you agree that the laws of the Province of Ontario and the laws of Canada applicable therein govern this Agreement and all of its terms and conditions, and any dispute of any sort that might arise between you and I Can! Kids without giving effect to any principles of conflicts of laws. Subject to paragraph 18 herein, the sole and exclusive jurisdiction and venue for any dispute under this Agreement or resulting from any use or inability to use the Site/and or Services shall be the appropriate provincial or federal court in Thunder Bay, Ontario, Canada. You also agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of, including without limitation, our Site, Services, and your Listings and Content. Nothing in this Statement shall prevent us from complying with the law.
18. You agree that any controversy or claim arising out of or relating to this agreement or our Services shall be settled by binding arbitration in accordance with the Arbitrations Act, 1991 of Ontario which shall be final and binding upon the parties and no appeal shall lie therefrom. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted by a single arbitrator in Thunder Bay, Ontario, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or I Can! Kids may seek any interim or preliminary relief from a court of competent jurisdiction in Thunder Bay, Ontario, if necessary to protect the rights or property of you or I Can! Kids pending the completion of arbitration and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these terms and conditions. No arbitration proceeding or other legal action may be commenced regarding any disputes arising out of, relating to or connected with this Agreement more than one (1) year after the date that the alleged breach or other grounds for dispute originally occurred.
19. You agree to defend, indemnify and hold I Can! Kids and our subsidiaries, parents, affiliates, officers, directors, agents, and employees harmless from and against any and all claims, losses, liabilities, costs and expenses (including but not limited to attorneys’ fees) arising from or in connection with (a) your breach of this agreement, including the documents incorporated by reference; (b) your violation of any federal, provincial, state, foreign or international laws, codes or regulations; (c) your violation of any third party’s rights, including, but not limited to, infringement of any copyright or trademark, violation of any proprietary right and invasion of any privacy rights; (d) from any claim, action, liability, loss, damage or suit arising from a violation by a user of any applicable prohibitions or restrictions on the sale, attempted sale, shipment of goods and services, of any product or service or use of this Site or any Seller’s or Merchant’s website(s). This obligation will survive the termination of this agreement.
20. This Agreement and the general terms and conditions set forth on the Site constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes and cancels all prior and contemporaneous agreements, commitments, claims, representations and understandings of the parties in connection with the subject matter hereof.
CHANGES TO AGREEMENT
21. I Can! Kids may change this Agreement at any time by email notification to you and/or by posting a notice thereof on the I Can! Kids Site consistent with the terms in the Agreement. Your continued access and use of the Site and Services after the notifications of modifications to this Agreement and/or any Additional Terms will signify your agreement and acceptance of the new terms. Any use by you of the I Can! Kids Site or any Services after the effective date of such change shall be deemed to be continued acceptance of this Agreement including its amendments and modifications.
NOTICES AND COMMUNICATIONS
22. You consent to receive communications from us electronically. We will communicate with you by email and/or by posting notices on this Site. Any notice to be given to you under this Agreement will be sent by email to the most current email address in your User Account, and may include a posting on the Site. Notice shall be deemed received by you when we send the electronic communication and/or post the notice on the Site. 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. For the purposes of notice to I Can! Kids, you may send notice by email to: email@example.com. We may also send newsletters and other promotion Content from the Site and/or from third parties from time to time. If you do not wish to receive these mailings, you may opt out by unchecking the ‘Receive Newsletter’ option, or related option therein.
23. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then that provision of this Agreement shall be deemed severable and the remaining provisions shall remain in full force and effect and shall not affect the validity and enforceability of any remaining provisions to the extent necessary to be reasonable under the circumstances and consistent with applicable law while reflecting as closely as possible the intent of the terms of this Agreement. You agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provisions.
RELATIONSHIP OF THE PARTIES
24. I Can! Kids is not the agent, fiduciary, trustee or other representative of you and you and I Can! Kids are independent entities. Nothing expressed or mentioned in or implied from this Agreement or from use of the Site and Services is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement and nothing expressed or mentioned in or implied from this Agreement or from use of the Site and Services will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between I Can! Kids and you. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of I Can! Kids and you.
25. You are solely responsible for maintaining the confidentiality and security of your password, account information and for restricting access to your computer. You understand and agree that you are solely and fully responsible for any use of or action taken under your account or password on this Site (including the actions of your agents, students, representatives), whether or not you authorized such activities. If your password is compromised you must change your password and notify I Can! Kids Support.
26. You approve of the collective use of your User ID, password and/or email address or other account information by I Can! Kids as an electronic signature, a competent substitute to your handwritten signature as proved under applicable law. All instructions given, agreements made, or other acts taken under your User ID and password shall be given, made or taken, as the case may be and shall have the same legal effect, as if made or done in writing and signed by you.
27. You consent to having your personal data transferred to and processed in Canada and the United States.
28. I Can! Kids’ failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of I Can! Kids’ right to subsequently enforce such provision or any other provisions of this Agreement.
29. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement. References to “us,” “we,”, “its” and “our” means I Can! Kids.
30. You may not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent.
31. We always appreciate your feedback or other suggestions you provide us regarding the Site and or Services. You agree that we may use them without any obligation to compensate you for them.
TERMINATION AND ACCOUNT CLOSURE
32. You may terminate this Agreement for any reason at any time upon notice to I Can! Kids, consistent with the terms of this Agreement. If you terminate your account, termination is effective one (1) business day after we receive such notice. I Can! Kids, in its sole and absolute discretion, reserves the right to suspend or terminate your account and/or discontinue your access to the Site or any Services at any time for any reason without prior notice to you, and any such discontinuance shall be considered a “termination” under this Agreement. Notices are pursuant to the terms set forth in this Agreement. In all such cases, this Agreement shall terminate, provided that the following provisions shall survive termination of this Agreement: paragraphs 9, 13, 14, 15, 16, 18 and 19.
33. Neither you or I Can! Kids shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labour disputes, fires, transportation contingencies, interruptions in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophes or any other occurrences which are beyond your or I Can! Kids’ reasonable control.
34. To report an abuse of these Terms, email I Can! Kids at firstname.lastname@example.org.