Terms of Service

Last Modified: March 23 , 2023

1. Acceptance of the Terms of Service

These Terms of Service are entered into by and between you and Smarty Ears, LLC (“Smarty Ears”, “Company”, “we” or “us”). The following terms and conditions (collectively, “Terms of Service”) govern your access to and use of www.smartyearslearning.com (“Website”), including any content, functionality, and services offered on or through the Website, whether as a registered user, subscriber, or guest.

Please read the Terms of Service carefully before you begin use of the Website. By browsing, using the Website, or by clicking to accept, consent, or agree to the Terms of Service when this option is made available to You, You accept and agree to be bound and abide by these Terms of Service.

If you do not want to agree to these Terms of Service, you must not access or use the Website.

Like many consumer contracts, these Terms of Service contain a mandatory arbitration provision and waiver of jury trial rights. Please read Section 16 to learn more.

The services or products offered on this Website are offered and available for purchase by users who are eighteen (18) years of age or older. Any attempted purchase of a service or product by a minor from the Website may be referred to relevant authorities for prosecution and shall be considered automatically declined and void.

If you are in a jurisdiction or territory in which access to the Website or its content is illegal, you must not access or use the Website. Smarty Ears bears no liability for your violation of applicable laws and you assume the risk of use of the Website.

By using this Website, you represent and warrant that you are of legal age to form a binding contract with Smarty Ears and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.

2. Changes to the Terms of Service

Smarty Ears may revise and update these Terms of Service from time to time in its sole discretion. All changes are effective immediately upon posting to the Website and apply to all access to and use of the Website thereafter. Your continued use of the Website following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to read these Terms of Service frequently when you access this Website so that you are aware of any changes, as they are binding on you.

3. Accessing the Website

We reserve the right to withdraw or amend this Website, and any product or service we provide on the Website, in our sole discretion, without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users.

4. Changes to the Website

We may update the content on this Website from time to time, but its content is not necessarily complete or up to date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

5. Purchases and Automatic Renewal of Subscription Services

You will have the opportunity to purchase products or services from the Website. If you purchase a subscription, it will be automatically renewed and you will be charged until you cancel your subscription, in accordance with the terms disclosed to you here and at the time of purchase.

We reserve the right to accept or reject any order in our own discretion. In the event of acceptance of your offer, you will receive a confirming email at the email address that you provide to us during checkout.

5.1 Subscription Purchase

Your subscription purchase will be processed using the payment method you provide on the Website. Smarty Ears utilizes Stripe, Inc. for its third-party payment processing services.

If your purchase includes an automatically renewing subscription, your payment method will continue to be periodically charged for the subscription until you cancel. After your initial subscription commitment period, and again after any subsequent subscription period, your subscription will automatically continue for the price and time period you agreed to when subscribing, until you cancel.

To cancel a subscription, log in to the Website and go to the [Settings (or other page)]. If you cancel a subscription, you may continue to use the cancelled service until the end of your then-current subscription term. The subscription will not be renewed when your then-current term expires. All the data entered on the Website will be automatically deleted within 30 days from service cancelation and may not be recovered.

You may edit your payment method information by using the [account settings or other page]. If a payment is not successfully processed, due to expiration, insufficient funds, or otherwise, you remain responsible for any uncollected amounts and authorize Smarty Ears to continue billing your payment method, as it may be updated. This may result in a change to your payment billing dates.

In addition, you authorize Smarty Ears to obtain updated or replacement expiration dates and card numbers for your credit or debit card as provided by your credit or debit card issuer. The terms of your payment will be based on your payment method and may be determined by agreements between you and the financial institution, credit card issuer, or other provider of your chosen payment method. Certain users may be entitled to request a refund.

5.2 California Customers: Cancellation Rights

California subscribers may cancel a subscription, without penalty or obligation, at any time prior to midnight of the third business day following the date you subscribed. You may cancel your subscription within the allotted timeframe by contacting Customer Service at contact@smartyearsapps.com, or by mailing or delivering a signed and dated notice that states that you, the buyer, are canceling your agreement, or words of similar effect. Please also include your name and the email address, phone number, or other unique identifier you used to sign up for your account. This notice shall be sent to: Smarty Ears, LLC, ATTN: CANCELLATION DEPARTMENT, P.O. Box 1134, Rowlett, Texas 75030. In accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at Consumer Information Division, 1625 North Market Blvd., Suite N112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

5.3 Refunds

Generally, all purchases are final and nonrefundable and there are no refunds or credits for partially used periods, unless the laws applicable in your jurisdiction provide for such refund.

6. Intellectual Property Rights

The Website and its contents, features, and functionality, including, but not limited to, all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof, are owned by Smarty Ears, its licensors, or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. These Terms of Service permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website.

All third-party intellectual property (including word marks, logos, and icons) referenced on the Website remain the property of their respective owners. Smarty Ears’ display or use of third-party trademarks does not indicate any relationship, sponsorship, affiliation, or endorsement between Smarty Ears and the owners of these trademarks. Nothing on the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any third-party trademark. Any references on the Website to third party trademarks is solely to identify the corresponding third-party goods and/or services and shall be considered nominative fair use under the trademark law.

7. Copyright Infringement

Smarty Ears respects the intellectual property of others and expects our users to do the same. We take complaints of copyright infringement seriously and will respond to notices of alleged copyright infringement that comply with applicable law.

This Website qualifies as a Service Provider within the meaning of 17 U.S.C. § 512(k) of the Digital Millennium Copyright Act (“DMCA”). Accordingly, it is entitled to certain protections from claims of copyright infringement under the DMCA, commonly referred to as the safe harbor provisions. To that end, and in accordance with the DMCA, 17 U.S.C. § 512, Smarty Ears has implemented procedures for reporting instances of copyright infringement.

7.1 Reporting Claims of Copyright Infringement

If you are a copyright holder, or its authorized representative, and believe in good faith that content residing or accessible on or through the Website infringes your copyrighted work, you may submit a notice of copyright infringement by sending written notice of copyright infringement to our designated agent (“Agent”) electronically at contact@smartyearsapps.com or via mail to:

Smarty Ears, LLC
ATTN: Customer Service
P.O. Box 1134
Rowlett, Texas 75030

Your notice of copyright infringement should provide the following information:

A direct link to any copyrighted work that you claim has been infringed and clear description of the copyrighted work that you claim has been infringed (if multiple copyrighted works are covered by a single notification, you may provide a representative list of such works);
A description of the material on our Website that you claim is infringing;
Information reasonably sufficient to permit us to locate the allegedly infringing material (please be as detailed as possible and provide web addresses (URLs) leading directly to the material);
Your contact information, including your address, telephone number, postal address, and an e-mail address;
A statement that you have a good faith belief that use of the copyrighted materials in the manner asserted is not authorized by the copyright owner, its agent, or the law;
A statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf;
A statement that the information in the written notice is accurate; and
Your physical or electronic signature (typing your full legal name is sufficient).

Please do not send any other information to our Agent. Please note that if You fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, Your DMCA Notice may not be effective. If you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, You may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

If notice is effective, we may forward the notice of copyright infringement or information contained therein, as well as the Complainant’s contact information, to the Servicer who posted the allegedly infringing content. Additionally, if we remove or disable access to the content pursuant to a valid DMCA notice, Smarty Ears will immediately notify the Servicer that the content has been removed or disabled.

7.2 Counter-Notification Procedures

If you believe that material you posted on the Website was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter-Notice must include the following:

Your physical or electronic signature;
An 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 disabled;
Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address);
A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten (10) business days of receiving the copy of your Counter-Notice.

Please be aware that if you knowingly and materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

7.3 Repeat Infringers

It is also the policy of Smarty Ears, in appropriate circumstances and in its sole discretion, to suspend or terminate the accounts of users who are repeat copyright infringers.

8. Prohibited Services

You may use the Website solely for lawful purposes and in accordance with these Terms of Service. You agree not to use the Website:

· In any way that violates any applicable federal, state, local, or international law or regulation, including, without limitation, any laws regarding the export of data or software to and from the US or other countries.
· For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
· To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter” or “spam,” or any other similar solicitation.
· To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity, including, without limitation, by using e-mail addresses associated with any of the foregoing.
· To infringe the intellectual property rights of others.
· To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability.

Additionally, you agree not to:

· Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
· Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
· Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
· Use any device, software, or routine that interferes with the proper working of the Website.
· Introduce any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful to the Website or its servers or databases.
· Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
· Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
· Otherwise attempt to interfere with the proper working of the Website.

9. Information About You and Your Visits to the Website

All information we collect on this Website is subject to our Privacy Policy: https://smartyearslearning.com/privacy-policy/. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

10. User Content

We, including third-party partners and our affiliates, may ask you for Feedback (as further defined below) on your experience with the Website and the services or products offered thereon. Smarty Ears shall become the owner of any reviews, comments, suggestions, or other feedback regarding the Website or services or products offered through the Website posted to the Website or on Smarty Ears’ social media pages (collectively, “Feedback”), and it may share Feedback with any of its affiliates. Smarty Ears will not be required to treat any Feedback as confidential and will not be liable for any Feedback posted on the Website or elsewhere. Without limitation, Smarty Ears will have exclusive ownership of all present and future existing rights to the Feedback and will be entitled to use of the Feedback for any commercial or other purpose whatsoever, including to advertise and promote Smarty Ears, without compensation to you or any other person sending the Feedback.

To the extent that you decide to post any content (“User Content”) on the Website or on Smarty Ears’ social media pages, you agree that your User Content will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have written permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Smarty Ears all of the license rights granted herein. You acknowledge that you are responsible for whatever material you submit, and that you have sole responsibility for the Feedback, including its legality, reliability, appropriateness, originality, and copyright. Smarty Ears may refuse to accept or transmit User Content and shall have the right to delete, edit, modify, reformat, excerpt, or translate any of your User Content.

11. Links from the Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and we accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of service for such websites.

12. Right of Termination

We may suspend or cancel your access to the Website, at our sole discretion, without notice or refund to you if you violate these Terms of Service. Your license to use Smarty Ears’ Website automatically terminates upon your termination from access. All provisions of these Terms of Service that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability. You acknowledge and understand that our rights regarding any content you submitted to the Website before your access being terminated, including Feedback, shall survive termination.

13. Disclaimer of Warranties

SMARTY EARS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
The Website and our services are provided “as is” and the Company does not make any representations about the content or features of our Website or our services or products.

14. Limitation on Liability

IN NO EVENT WILL SMARTY EARS, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF SERVICE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THE LIABILITY OF SMARTY EARS, AND USER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, SHALL NOT BE GREATER THAN THE TOTAL OR PRORATED MONTHLY AMOUNT YOU HAVE PAID UNDER THIS AGREEMENT WITHIN THE FOUR (4) MONTHS PRECEDING THE LOSS OR DAMAGE.

Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some, or all, of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights.

15. Indemnification

You agree to defend, indemnify, and hold harmless Smarty Ears, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees, including reasonable attorneys’ fees, arising out of or relating to your violation of these Terms of Service and incorporated Policies or your use of the Website, including, but not limited to, any infringement of a third-party’s intellectual property rights, any misuse of the products, materials, or services, any use of the Website’s content, services, and/or products other than as expressly authorized in these Terms of Service or your use of any information obtained from the Website.

16. Dispute Resolution

In an effort to accelerate resolution and reduce the cost of any Dispute related to, or arising out of, these Terms of Service and incorporated Policies, you agree to first attempt to negotiate in good faith any Dispute informally for at least sixty (60) days with Smarty Ears before either party institutes any arbitration. The negotiation period begins upon receipt of written notice by the party raising the Dispute. Notice may be sent via electronic mailing to contact@smartyearsapps.com or via registered mailing to Smarty Ears, LLC, P.O. Box 1134, Rowlett, Texas 75030. You consent to receipt of notice from Smarty Ears via electronic mailing to your email address provided to Smarty Ears during checkout on the Website.

If the Dispute cannot be resolved by negotiations, either party may elect to have the Dispute finally and exclusively resolved by submission to binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. This arbitration provision limits your and Smarty Ears’ ability to litigate claims in court and to have the Dispute heard by a jury. You and Smarty Ears are waiving the right to trial by jury. Arbitration shall be commenced and conducted by JAMS, pursuant to its Comprehensive Arbitration Rules (available on the JAMS webpage). Arbitration proceedings shall be instituted in the state of Texas, county of Dallas.

17. Governing Law

These Terms of Service will be governed and interpreted pursuant to the laws of Texas, United States of America, notwithstanding any principles of conflicts of law. You specifically consent to personal jurisdiction in Texas in connection with any dispute between you and us arising out of these Terms of Service or pertaining to the subject matter hereof. No arbitration, lawsuit, or other proceeding shall be instituted in any forum but for the state of Texas, county of Dallas.

18. Waiver and Severability

No waiver of or by Smarty Ears of any term or condition set forth in these Terms of Service or Policies shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Smarty Ears to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.

If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service and Policies will continue in full force and effect.

19. Entire Agreement

These Terms of Service, along with any posted policies on the Website, constitute the sole and entire agreement between you and Smarty Ears and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Website and services thereon.

20. Assignment

The Terms of Service and Policies are not assignable, transferable, or sublicensable by You except with Smarty Ears’ prior written consent. Any assignment in violation of this section shall be null and void. Smarty Ears may assign, transfer, or delegate any of its rights and obligations hereunder without your consent.

21. Special State Terms

For subscribers residing in North Carolina: You may review the North Carolina Buyer’s Rights here.

For subscribers residing in Arizona, California, Connecticut, Illinois, Iowa, Minnesota, New York, North Carolina, Ohio, Rhode Island, and Wisconsin:
Your Right to Cancel—You may cancel your subscription, without penalty or obligation, at any time prior to midnight of the third business day following the date you subscribed. In the event that you die before the end of your subscription period, your estate shall be entitled to a refund of that portion of any payment you had made for your subscription which is allocable to the period after your death. In the event that you become disabled (such that you are unable to use our Services) before the end of your subscription period, you shall be entitled to a refund of that portion of any payment you had made for your subscription which is allocable to the period after your disability by providing the company notice at contact@smartyearsapps.com or at the address provided in Section 22 below.

22. Questions, Comments, and Concerns

This website is operated by Smarty Ears, LLC, P.O. Box 1134, Rowlett, Texas 75030. Feedback, comments, requests for technical support and other communications relating to the Website should be directed to: contact@smartyearsapps.com or by registered mail at the appropriate address below: