PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Welcome to Funler. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at email@example.com. “You” refers to you individually and you on behalf of any child authorized by you to use and access the Services.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the website at http://funler.com/, by sending you an email, and/or by some other means-
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from a child under 13 without obtaining verifiable consent from that child’s parent or guardian (“Parental Consent”), except for the limited amount of personally identifiable information we need to collect in order to obtain Parental Consent (“Required Information”). Until we have received Parental Consent, we will only use Required Information for the purpose of obtaining Parental Consent. If you are a child under 13, please do not attempt to send any personal information about yourself to us before we obtain Parental Consent, except for the Required Information in the context of the Parental Consent process. If you believe that a child under 13 has provided us with personal information (beyond the Required Information) without our obtaining Parental Consent, please contact us at firstname.lastname@example.org.
What are the basics of using Funler?
We currently offer two versions of mobile applications, the parent control application (Parent App) and the child learning and playing app (Child App). To use our Services, you may be required to sign up for an account for your child(ren) with the Child App, and for yourself with the Parent App, through which you are authorized to manage, control, monitor, and review your child(ren)’s activities in the Child App and communicate or otherwise interact with your child(ren) via our Services. Only you, as the parent of your children, can determine whether, and with whom, your child(ren) are authorized to communicate on our Services, as well as who, if anyone, such as other users of our Services, are authorized to view your child(ren)’s activities or profile on the Services.
To sign up for an account, you need to select a password and user name (“Funler User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Funler User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You may need to provide certain information of your child(ren) in order for us to tailor our Services to your needs. For example, you may need to provide the grade information in order to find the most suitable learning materials for your child(ren), or you may need to provide your child(ren)’s hobby or interest information so that we can provide the contents in which you child(ren) are most likely to be interested. You shall not disclose more information than reasonably necessary for your child(ren) to use our Services.
You represent and warrant that you are an individual of legal age to form a binding contract, that you are the parent or guardian of the child(ren) you permitted to use our Services, and that you agree to these Terms on behalf of your child(ren) who are permitted by you to use our Services.
You will only use the Services for your own personal and non-commercial use, and not on behalf of or for the benefit of any third party (except your child(ren) for their use of the Child App), and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
(a) Infringes or violates the intellectual property rights or any other rights of anyone else (including Funler);
(b) Violates any law or regulation, including any applicable export control laws;
(c) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) Jeopardizes the security of your Funler account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) Attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) Violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) Copies or stores any significant portion of the Content;
(j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services
(k) Acts in a manner that we, in our sole discretion, deem inappropriate for the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in Funler?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Funler’s) rights.
You understand that Funler owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
Do I have to grant any licenses to Funler or to other users?
Anything you or your child post, upload, share, store, or otherwise provide through the Services is your “User Submission.” For the Child App, only you, as the parent of your child(ren), is authorized to determine whether to allow your child(ren) to create any User submission, with whom your child(ren) can communicate on the Child App, and who of other users can review any User Submission created by your child(ren). The Child App does not authorize child(ren) to do anything with regard to a User Submission without obtain prior consent from you. For example, when you (the parent) authorizes your child(ren) to use our messaging tools to communicate with another user, your child(ren) could disclose the Children’s Personal Information to others. You grant us a license to collect, store, and distribute the Child’s Personal Information to that certain other users as expressly permitted by you.
For all User Submissions, you hereby grant Funler a license to translate, modify (for technical purposes, for example making sure your content is viewable on a mobile phone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal Funler account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Funler the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to one or more other users)(a “Limited Audience User Submission”), then you grant Funler the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant Funler the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Funler users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Funler’s business. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide, provided that when you delete your Funler account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Funler’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Finally, you understand and agree that Funler, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like Funler, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here. To learn more about the DMCA, click here.
Who is responsible for what I see and do on the Services?
Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
Funler has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Funler will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Funler shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Funler is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Funler, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
Will Funler ever change the Services?
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Does Funler cost anything?
Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
If you choose to enroll in such Paid Services, you will be charged a monthly subscription fee. The subscription fee for these Paid Services will be charged to you in advance, to the credit card you provided upon enrollment in the Paid Services. You must provide and promptly update all your payment information to keep it current, complete and accurate. Changes to such information can be done through your Account Settings. If you fail to provide any of the foregoing information, you agree that we may continue charging you for any use of Paid Services unless you have terminated your Paid Services as set forth below.
Unless you opt out of auto-renewal, which can be done through your Account Settings, any Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current rate. To change or resign your Paid Services at any time, go to Account Settings. If you terminate a Paid Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. However, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
We currently use a third-party payment processor (the “Payment Processor”) to bill you for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor.
Though many of our Services are currently free, Funler reserves the right to require payment of fees for certain or all Services. Funler may change the subscription fee upon notice to you, but such change will only take effect once your then-current term of the Paid Services has ended. If you do not wish to pay the new subscription fee, your only remedy shall be to cancel your enrollment in the Paid Services for the following term, prior to the expiration of your then-current term. Funler reserves the right to institute new charges at any time, upon notice to you, which may be sent by email or posted on our websites. Your use of the Services following such notification constitutes your acceptance of any new or increased charges.
How do Points or Gifts work?
The Child App allows your child(ren) to earn “points” through taking certain actions or achieving certain goals on the learning portion of the Child App (“Points”). Points can be converted to time allotted to child(ren) to spend on the playing portion of the Child App, which may contain games or videos (“Play Time”). You have the sole discretion to set the conversion rate between Point and Play Time. You also have the sole discretion to decide whether you will offer “gifts” or “rewards” to your child(ren) (“Gifts”), how much Points that certain gifts or rewards will cost, and what restrictions to place on the use of Gifts. You may choose a tangible product provided by third party merchants (e.g. Amazon) as the Gift, or you may reward Play Time as the Gift. Again, your interactions with third party merchants in connection with the Gifts, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party merchants. You agree that Funler shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
Points are not redeemable for cash, cannot be purchased for cash, have no cash value, and are not transferrable between users unless expressly allowed by us and only in accordance with applicable law. By using or engaging in the Points and/or Gifts process in any way, you expressly relieve and hold harmless Funler from any and all liability arising from such use or engagement. You understand and acknowledge that Points and Gifts are entirely your responsibility and that Funler shall not be responsible or liable for any loss or damage of any sort incurred as a result of your dealings with respect to Points and/or Gifts.
What if I want to stop using Funler?
Funler is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Funler has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Funler.
If you have deleted your account by mistake, contact us immediately at email@example.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
I use the Funler App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including the iPhone and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
(a) Both you and Funler acknowledge that the Terms are concluded between you and Funler only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that Funler, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Funler, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and Funler acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
(j) Both you and Funler acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
What else do I need to know?
Warranty Disclaimer. Neither Funler nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Funler or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY FUNLER (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL FUNLER (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO FUNLER IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold Funler, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Funler’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, [San Francisco County, California], or the [Northern District of California].
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Funler may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Funler agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Funler, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Funler, and you do not have any authority of any kind to bind Funler in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Application, you and Funler agree there are no third party beneficiaries intended under these Terms.
EFFECTIVE DATE: March 1, 2010
(Last Updated April 19, 2010)