QwertyTown’s Terms of Use

1. Introduction

Welcome to QwertyTown! These QwertyTown Terms of Use (“Terms of Use”) shall govern all use of www.QwertyTown.com pages (hereinafter, “QwertyTown”).

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING QWERTYTOWN. By accessing or using QwertyTown (the “Service”), you are agreeing to the following Terms of Use. The Service is owned by Second Nature Learning LLC, a New York limited liability company, and may be referred to herein as “QwertyTown” or “we” or “us.”

Note that special terms may apply to some services offered on certain areas of QwertyTown, like subscription-based services, rules for particular contests or sweepstakes or other features or activities. Such terms are posted in connection with the applicable service. Any such terms are in addition to these Terms of Use, and in the event of a conflict, prevail over these Terms of Use.

You acknowledge that these Terms of Use are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the generality of the foregoing, you acknowledge that such consideration includes your use of QwertyTown and receipt of data, materials and information available at or through QwertyTown, the possibility of our use or display of your Solicited Submissions (as defined below) and the possibility of the publicity and promotion from our use or display of your Solicited Submissions.

We encourage you to review the Terms of Use, along with the Privacy Policy, as they form a binding agreement between you and QwertyTown. In addition, because we may revise these Terms of Use from time to time at our discretion, we also encourage you to check back periodically to familiarize yourself with any changes.

2. Use of Service and Content

3. Submissions

You are responsible for all Submissions that you provide and you warrant and represent that the Submissions do not and will not infringe on any copyright or any other third party right nor violate any applicable law or regulation. At the end of the Service, the Submissions on the Service may be archived.

“Submissions” means any and all text, messages, ideas, concepts, pitches, suggestions, stories, screenplays, treatments, formats, artwork, photographs, drawings, videos, audiovisual works, musical compositions (including lyrics), sound recordings, characterizations, your and/or other persons’ names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials that you submit, post, upload, embed, display, communicate or otherwise distribute (collectively, “Distribute”) on or through QwertyTown.

DO NOT DISTRIBUTE ANY UNSOLICITED SUBMISSIONS; NO IMPLIED CONTRACT.

In any event, you agree that any Submissions you make is not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type.

4. Rules of Conduct

If you do inappropriate things on QwertyTown or abuse the Service we provide in any way, we may terminate your account(s), block your access to QwertyTown, and may also take other actions. Your QwertyTown account(s) and your access to QwertyTown may be terminated or blocked by us or your Administrator for any reason. The following broadly describes activities that are prohibited on QwertyTown. If you break these rules, your access to QwertyTown will be blocked.

The following Rules of Conduct apply to QwertyTown. By using QwertyTown, you agree that you will not Distribute any Submission that:

 

Monitoring and Enforcement.  We do not actively monitor the Service or the content that is posted or provided by you or your school, nor are we obligated to do so. And since we do not, and may not have the ability to, control or actively monitor the content, we do not guarantee its accuracy, integrity or quality. Because community standards vary and individuals sometimes choose not to comply with our policies and practices, in the process of using our Service, you may be exposed to content that you find offensive or objectionable. You can contact us to let us know of content that you find objectionable. We may investigate the complaints that come to our attention. If we choose to investigate the complaint, we will take any action that we believe is appropriate, including, but not limited to, issuing warnings, removing the content or terminating user access to our Service. However, because situations and interpretations vary, we also reserve the right not to take any action. In such cases, we may not remove content that you believe is objectionable or offensive. Please remember that you can always choose to refrain from using any part of the Service that exposes you to something that you are uncomfortable with. Under no circumstances will we be liable in any way for any content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any content.

Furthermore, by using QwertyTown, Teacher Accounts (as set forth below) shall have access and ability to monitor any and all user activity.

WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR THE CONTENT POSTED. WE SHALL HAVE THE RIGHT TO REMOVE ANY SUCH MATERIAL THAT IN OUR SOLE OPINION VIOLATES, OR IS ALLEGED TO VIOLATE, THE LAW OR THESE TERMS OF USE. NOTWITHSTANDING THIS RIGHT, YOU REMAIN SOLELY RESPONSIBLE FOR ALL CONTENT YOU POST.

5. Licenses And Representations

You hereby grant us and our licensees, distributors, agents, representatives, and other authorized users, a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable, and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify (including removing lyrics and music from any Submission or substituting the lyrics and music in any Submission with music and lyrics selected by us), create derivative works based upon, perform and otherwise exploit such Submissions, in whole or in part, in all media formats and channels now known or hereafter devised (including on QwertyTown, on third party web sites, on our broadcast and cable networks and stations, on our broadband and wireless platforms, products and services, on physical media, and in theatrical release) for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the “Submissions License”).

By communicating a Submission, you represent and warrant that the Submission and your communication thereof conform to the Rules of Conduct (set forth above) and other requirements of these Terms of Use and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Submission in all manners contemplated by these terms of use (including the Submissions License). These Terms of Use (including the Submissions License) do not limit any past or future grant of rights, consents, agreements, assignments and waivers you may have made or make with respect to Submissions.

To the extent that we solicit Submissions through features or activities on or through QwertyTown (including games, sweepstakes, contests, promotions and Public Forums (defined below in Section 7) that require the use of our copyrighted works (in whole or in part), we hereby grant you a non-exclusive license to create (and when specifically permitted by us to distribute) a derivative work using our copyrighted works (in whole or in part) as required (but only as required, and only for the purpose of creating or distributing your Submissions). We do not intend for such Submissions to be joint works. The license to use our copyrighted works to create such Submissions shall be conditioned upon your assignment of your rights in the works you create to us, and if such rights are not assigned to us, your license to use our copyrighted works (in whole or in part) to create and distribute the Submissions shall be retroactively null and void. You agree to the foregoing grant of rights, consents, agreements and assignments whether or not your Submissions are used by us.

You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, agreements, assignments and waivers set forth in these terms of use.

To the extent any “moral rights,” “ancillary rights,” or similar rights in or to the Submissions exist and are not exclusively owned by us, you agree not to enforce any such rights as to us or our licensees, distributors, agents, representatives, and other authorized users, and you shall procure the same agreement not to enforce from any others who may possess such rights.

Without limiting the scope of the Submissions License or any future grant of rights, consents, agreements, assignments, and waivers you may make with respect to Submissions, you hereby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you with respect to Submissions submitted by you to us

6. Accounts

A. Student Accounts.  Some services on QwertyTown permit or require you to create an account to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the “Registration Data”). You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph. You also agree to promptly notify us at help@qwertytown.com of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to QwertyTown. In addition, you agree to exit from your account at the end of each session.

We may suspend or terminate your account and your ability to use QwertyTown or any portion thereof for failure to comply with these Terms of Use or any special terms related to a particular service, for infringing copyright, or for any other reason whatsoever.

B. Teacher Accounts (Administrator).  For any student accounts that you setup using your QwertyTown Teacher Account (also referred to herein as “Administrator”), you agree to the following:

• (i) represent and warrant that you are a professional educator, teacher or other school or school district employee;
• (ii) to monitor the students’ use of QwertyTown;
• (iii) to use the controls and other means to restrict children to use QwertyTown only in the context of school activities. You understand that, as a teacher, you are allowed to act in the role of a parent in granting permission for school activities under the Federal Trade Commission’s (FTC) guidelines on the Children’s Online Privacy Protection Act (COPPA)*;
• (iv) by using QwertyTown and allowing children to access the Service, you consent to their participation in all related activities;
• (iv) you have read the Privacy Policy and you understand that while QwertyTown does not collect or store any Personally Identifying Information from or about children who use or register with QwertyTown, granting children access to QwertyTown will allow them to exchange information with anyone in QwertyTown, and in turn could allow them to disclose their Personally Identifying Information to others in QwertyTown. Such a disclosure could fall within the scope of COPPA;
• (v) for any Service that you setup using your Teacher Account, you agree to moderate, monitor, and control access to QwertyTown. You agree to moderate QwertyTown specifically for any inappropriate content (including any content that does not comply with the Terms of Use), and any disclosure of Personally Identifying Information by any students via QwertyTown. You further agree to delete any such content on QwertyTown, as appropriate.
• (vi) by using QwertyTown and allowing children to access the Service, you consent to their participation in all related activities;

* “To ensure that children can access educational content at school, the FTC has clarified in educational materials that teachers can act on behalf of parents to provide consent for purposes of COPPA.” [Implementing the Children’s Online Privacy Protection Act, Report to Congress, FTC, Feb. 2007] See also the FTC’s How To Protect Kids’ Privacy Online, A Guide for Teachers, http://www.ftc.gov/bcp/edu/pubs/consumer/tech/tec10.pdf.

7. Public Forums And Communication

“Public Forum” means an area, site or feature offered as part of QwertyTown that provides the opportunity for users to Distribute Submissions for viewing by one or more QwertyTown users, including a chat area, message board, instant messaging, mobile messaging, social community environment, profile page, conversation page, blog, and e-mail function (including electronic greeting cards and send-a-friend e-mails).

You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any Submission to a public Forum. We cannot guarantee the security of any information you disclose through any of these media; you make such disclosures at your own risk.

You are and shall remain solely responsible for the Submissions you Distribute on or through QwertyTown under your username or otherwise by you in any Public Forum and for the consequences of submitting and posting same. We have no duty to monitor any Public Forum.

Also, you should be skeptical about information provided by others, and you acknowledge that the use of any Submission posted in any Public Forum is at your own risk. For example, we are not responsible for, and we do not endorse, the opinions, advice or recommendations posted or sent by users in any Public Forum and we specifically disclaim any and all liability in connection therewith.

We owe you no obligation, and therefore may refuse, to post, deliver, remove, modify or otherwise use or take any action with respect to Submissions you Distribute.

8. Cooperation; Removal of Submissions

We reserve the right, but disclaim any obligation or responsibility, to (a) refuse to post or communicate or remove any Submission from QwertyTown that violates these terms of use (including the Rules of Conduct) and (b) identify any user to third parties, and/or disclose to third parties any Submission or personally identifiable information, when we believe in good faith that such identification or disclosure will either (i) facilitate compliance with laws, including, for example, compliance with a court order or subpoena, or (ii) help to enforce these terms of use (including the Rules of Conduct) and/or our contest, sweepstakes, promotions, and game rules, and/or protect the safety or security of any person or property, including QwertyTown. Moreover, we retain all rights to remove Submissions at any time for any reason or no reason whatsoever.

9. Disclaimers

THE CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO QWERTYTOWN OR ANY THIRD PARTY SITES OR SERVICES LINKED TO FROM QWERTYTOWN IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT QWERTYTOWN OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).

QwertyTown may contain the opinions and views of other users. Given the interactive nature of these sites, we cannot endorse, guarantee, or be responsible for the accuracy, efficacy, or veracity of any content generated by our users.

10.  Indemnification

You are responsible for maintaining the confidentiality of your username(s), password(s), and account(s), as well as all activities that occur under your account(s). You hereby agree to indemnify, defend, and hold us, our licensors, licensees, distributors, agents, representatives and other authorized users, and each of the foregoing entities’ respective resellers, distributors, service providers and suppliers, and all of the foregoing entities’ respective officers, directors, owners, employees, agents, representatives and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities, and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these terms of use or claims arising from your use of QwertyTown and/or your account(s). You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

11.  Limitation of Liability

YOUR USE OF THE SERVICE IS ENTIRELY AT YOUR SOLE RISK. SECOND NATURE LEARNING, LLC, AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, LICENSORS, MEMBERS, AND AGENTS INCLUDING YOUR SCHOOL OR INSTITUTION SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WHICH YOU MAY INCUR IN CONNECTION WITH (A) THE USE OF, OR INABILITY TO USE, THE SERVICE, (B) THE USE OF, OR INABILITY TO USE, QWERTYTOWN OR CONTENT, OR (C) THE CONDUCT OR ACTIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF QWERTYTOWN OR ANY OR ANY OTHER PERSON OR ENTITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND AS A CONSEQUENCE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO OUR SERVICE.

WE MAY TERMINATE YOUR FURTHER ACCESS TO QWERTYTOWN OR CHANGE QWERTYTOWN OR DELETE CONTENT OR FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON.

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF USE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

12.  Jurisdictional And Venue Issues

You agree that any action at law or in equity arising out of or relating to these Terms of Use, the Services or QwertyTown shall be filed, and that venue properly lies, only in state or federal courts located in the Borough of Manhattan, New York, New York, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. We make no representation that Content on QwertyTown is appropriate or available for use in any particular location. Those who choose to access QwertyTown do so on their own initiative and are responsible for compliance with all applicable laws including any applicable local laws.

13.  Termination and Cancellation

You may terminate your registration at any time by having a parent or legal guardian contact your school. Your school will forward to us the request to terminate you from our Service. The termination of your access to our Service is your only remedy with respect to any dispute that you may have with us or your school regarding your use of the Service. We will attempt to process all cancellation requests within five business days after we receive the request from your school. If we determine, in our sole discretion, that you are not in compliance with this Terms of Use, we reserve the right to terminate your access to our system and Service at any time. Upon any termination, we may immediately deactivate or delete your access to our Service and make any content you posted unavailable to you.

14.  Amendment

At any time, we may amend these terms of use (including by modification, deletion and/or addition of any portion thereof). If we make a material amendment to these terms of use, we will notify you of such amendment by sending you an e-mail at the last e-mail address that you provided us, and/or by posting notice of such amendment on the Site covered by these Terms of Use. Any such amendment to these Terms of Use will be effective immediately following either our dispatch of an e-mail notice to you or our posting of notice of the changes on the Site, whichever takes place earlier. Please note that, at all times, you are responsible for updating your personal information to provide us your current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any other reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of any amendment described in the notice.

15.  General Provisions

These Terms of Use shall be governed by and construed in accordance with the laws of the State of New York and the laws of the United States, without giving effect to any principles of conflicts of law. If any provision of these terms of use shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms of use and shall not affect the validity and enforceability of any remaining provisions. No waiver of any provision of these terms of use by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these terms of use shall not constitute a waiver of such right or provision. In these terms of use, the word “including” is used illustratively, as if followed by the words “but not limited to.” YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR QWERTYTOWN MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

16.  Claims of Copyright Infringement

In compliance with the Digital Millennium Copyright Act (“DMCA”), we have established the procedure outlined below to address alleged copyright infringement on the Service. If you believe that your work has been copied and has been posted to this Service in a way that constitutes copyright infringement, you may provide us with notice of your complaint by providing us with the following information in writing:

• the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf;
• identification of the copyrighted work that you claim has been infringed;
• identification of the material that is claimed to be infringing, with information about its location reasonably specific to permit us to locate the material;
• your name, address, telephone number, and email address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• a statement, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.

To be effective, your notification must be in writing and include the above information.

We may, in our sole discretion, reserve the right to refuse additional content from members who have posted allegedly infringing material, and/or delete the material, or to terminate such member’s access to the Service.

After receiving a notification, we will process and investigate the notification and will take appropriate actions under the DMCA and other applicable intellectual property laws. Upon receipt of a notification that complies or substantially complies with the DMCA (as set forth above), we will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity, and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. We will promptly take reasonable steps to notify the member that is the subject of the notification that it has removed or disabled access to such material.

If you are subject to a notification, you may provide us with a counter notification by providing us the following information in writing:

• your physical or electronic signature;
• identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
• a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
• your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which we may be found and that you will accept service of process from the person who provided the initial notification of alleged infringement.

Upon receipt of a proper counter notification under the DMCA (as set forth above), we will promptly provide the person who provided the initial notification with a copy of the counter notification and inform that person that it will replace the removed material or cease disabling access to it in ten (10) business days. Additionally, we will replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14) business days following receipt of the counter notice, unless we first receive notice from the person who submitted the initial notification that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Service.

17.  Terms of Use

These Terms of Use shall apply to all non-paid subscription guests and users, paid subscription users, and Teacher Accounts.