Terms of Use

Last Updated: December 07, 2009

1. Introduction

The terms and conditions of use (the “Terms of Use”) apply to the Smarty Education web site located at www.fishsmarty.com, related Fish Smarty merchandise and all associated activities (we call all that the “Site”). The Site is operated and owned by Smarty Education Limited (we usually call ourselves “Smarty Education”).

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SITE. BY USING THE SITE OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE TO THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE THE SITE.

IF YOU ARE A PARENT OR GUARDIAN AND YOU PROVIDE YOUR CONSENT TO YOUR CHILD'S REGISTRATION AND USE OF THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE IN RESPECT OF THEIR USE OF THE SITE.

Smarty Education reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes.

2. Use of Content

All materials which appear on the Site, including any text, graphics, user interfaces, visual interfaces, pictures, images, logos, sounds, music, artwork, trademarks, computer code or other materials (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, is owned, controlled or licensed by or to Smarty Education, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.

Except as expressly provided in these Terms of Use, no part of the Site and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Smarty Education’s express prior written consent.

You may use particular Content (such as drawings, outdoor games, and similar materials) purposely made available by Smarty Education for downloading from the Site, provided that you (a) not remove any copyright or proprietary notices in all copies of such Content, (b) use such Content only for your personal, non-commercial purpose and do not copy or post such Content on any networked computer or broadcast it in any media, (c) make no modifications to, and do not rent, lease, loan, sell, distribute, copy (except to create a single copy for your own back-up purposes), or create any derivative works based on the Site or the Content, in whole or in part, and, (d) not use the Content in an unlawful manner, and (e) not make any additional representations or warranties relating to such Content. Any business use, "re-mailing" or high-volume or automated use of Site is prohibited.

You acknowledge and agree that nothing in these Terms of Use shall have the effect of transferring the ownership of any copyrights, trademarks, slogans, service marks, trade names, trade dress, or other proprietary rights in the Site or Content or any part thereof to you or any third party nor to authorize you to create derivative works based on the Content. You undertake not to do any act or thing which is inconsistent with or which is likely in any way to prejudice such title.

3. Submissions

Please do NOT submit, post, upload, embed, display, communicate or otherwise distribute any text, messages, ideas or suggestions relating to products, services, marketing plans, ideas for toys, games or other products, or any other suggestions, notes, ideas, inventions, drawings, designs, models, sound recordings, voices, videos, your and/or other persons' names, stories, screenplays, profiles, usernames, original creative artwork, concepts, techniques or similar material and information (“Submissions”) in any form on or through the Site, or to Smarty Education or any of its employees.

Smarty Education wants to avoid the possibility of future misunderstandings when projects developed by us or under our direction might seem to others to be similar to their own creative work. We therefore ask that you not distribute any unsolicited submission. If, despite our request that you not send us your ideas, you still submit them, then regardless of what your letter says, the following terms shall apply to your submissions. You agree that: (1) your submissions and their contents will automatically become the property of Smarty Education, without any compensation to you; (2) Smarty Education may use or redistribute the submissions and their contents for any purpose and in any way; (3) there is no obligation for Smarty Education to review the submission; and (4) there is no obligation to keep any submissions confidential.

Except as expressly stated in these Terms of Use, the provisions of these Terms of Use apply equally to unsolicited Submissions and solicited Submissions.

4. Accounts

Certain features or services offered on or through the Site may require you to open an account (i.e. become a member) 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 subscription registration and account management processes. You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including your password, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential.

You also agree to promptly notify at Smarty Education of any unauthorized use of your username, password, other account information, or any other breach of security. You may be held liable for losses incurred by Smarty Education or any other user of or visitor to the Site due to someone else using your username, password or account as a result of your failing to keep your account information secure and confidential. You may not use anyone else’s username, password or account at any time without the express permission and consent of the holder of that username, password or account. Smarty Education cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.

In addition, you agree to exit (logout) from your account at the end of each session.

5. Rules of Conduct

When you use this Site, you must follow these Rules of Conduct:

- By using the Site you agree not to submit any Submissions that:

a) is threatening, harassing, racist, abusive, an invasion of a right of privacy of another person, or otherwise offensive;

b) is vulgar, violent, obscene, pornographic or otherwise sexually explicit;
c) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a Submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
d) is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
e) infringes or violates any right of a third party including: (1) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (2) right of privacy (you cannot include in your Submissions anything that contains personal information about yourself or another person of any kind without their express permission) or publicity; or (3) any confidentiality obligation;
f) is damaging to Smarty Education, Fish Smarty, and it's business partners;
g) contains a virus, malware, or other harmful component, or otherwise tampers with, impairs or damages the Site or otherwise interferes someone else's use of the Site; or
h) (1) does not generally pertain to the designated topic or theme of the relevant Public Forum; (2) violates any specific restrictions applicable to a public forum; or (3) is antisocial, disruptive, or destructive, including "flaming," "spamming," "flooding," "trolling," and "griefing" as those terms are commonly understood and used on the Internet.

- Never share your real name on the Site, or anyone else's. When using the Site, you also cannot make up stuff about yourself. Only give us your real info, and do not attempt to impersonate any person, fictitious or otherwise.

- Do NOT break the rules and do NOT cheat. If we consider you have violated the Rules of Conduct, these Terms of Use, or have otherwise broken the law or behaved inappropriately, we may terminate your account. We reserve the right to keep under observation any and all Submissions, and reserve the right to remove, modify, or to refuse to post any Submission. However, Smarty Education does not necessarily monitor any materials posted, transmitted, or communicated to or within the Site.

We cannot and do not assure that other users are or will be complying with the foregoing Rules of Conduct or any other provisions of these Terms of Use. Therefore, you hereby assume all risk of harm or injury resulting from any such lack of compliance.

6. Links to other sites and to Fish Smarty

This Site may contain links to other independent third-party web sites. Those links are provided solely as a convenience to our visitors. Such third parties are not under Smarty Education’s control, and Smarty Education is not responsible for and does not endorse the content of such third parties, including any information or materials contained on such third parties. You will need to make your own independent judgment regarding your interaction with those third parties. You should review any web site terms and conditions, privacy policies, and other disclosures that those sites provide before interacting with those third parties, or providing them with information about yourself.

Anyone linking to this Site must not imply or suggest affiliations to Fish Smarty or Smarty Education that do not exist, and the link may not refer to or portray Fish Smarty or Smarty Education in a false, misleading, derogatory or otherwise offensive manner.

7. Disclaimers

SMARTY EDUCATION DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. SMARTY EDUCATION CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. MOREOVER, SUBJECT TO APPLICABLE LAW, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SMARTY EDUCATION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT. SMARTY EDUCATION DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY SMARTY EDUCATION SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST SMARTY EDUCATION FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

Furthermore, the Content is not intended to be a substitute for professional medical advice. Always seek the advice of your physician with any questions you may have regarding a medical condition. If you think you may have a medical emergency, call your doctor or the applicable local emergency service immediately. Reliance on any information appearing on this Site is strictly at your own risk.

This Site 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.

The content of this Site are intended for educational and entertainment purposes only. Such content is not intended to, and do not, constitute legal, professional, medical or healthcare advice or diagnosis, and may not be used for such purposes. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. You should not act or refrain from acting on the basis of any content included in, or accessible through, the Site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer or professional licensed in the recipient's state, country or other appropriate licensing jurisdiction.

The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.

Smarty Education reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

8. Indemnity

You agree to indemnify and hold Smarty Education, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Smarty Education by any third party due to or arising out of or in connection with your use of the Site and your Submissions. 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.

9. Privacy and Personal Information

Smarty Education’s Privacy Policy applies to use of this Site, and its terms are made a part of these Terms of Use by this reference. To view Smarty Education’s Privacy Policy, please go to the Privacy Policy page. Additionally, by using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.

10. Membership fees

- Membership fees are non-refundable and non-transferable.
- Cost of future subscriptions may change after an initial membership period has expired. Smarty Education reserves the right to change membership prices at any time, and charge the new price for members wishing to renew their subscriptions.

11. Limitation of Liability

Except where prohibited by law, in no event will Smarty Education be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if Smarty Education has been advised of the possibility of such damages.

If, notwithstanding the other provisions of these Terms of Use, Smarty Education is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Site or any Content, Smarty Education’s liability shall in no event exceed the greater of (1) the total of any subscription or similar fees with respect to any service or feature of or on the Site paid in the six months prior to the date of the initial claim made against Smarty Education, or (2) $40 (whichever is less).

Smarty Education provides and maintains the Site on an "as is" and "as available" basis, and gives no warranty in connection with the Site, including that the Site will work for a particular purpose. Smarty Education does not promise that the site will always be available, or that it will work perfectly.

The limitations, exclusions and disclaimers in this section and elsewhere in these Terms of Use apply to the maximum extent permitted by applicable law.

Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.

12. Termination

These Terms of Use are effective until terminated by either you or us. You may terminate these Terms of Use at any time by discontinuing use of the Site and destroying all materials obtained from the Site and all related documentation and all copies and installations thereof, whether made under these Terms of Use or otherwise.

Smarty Education shall be entitled to terminate these Terms of Use and immediately remove, cancel or suspend access to and use of the Site for any reason, including if you break these Terms of Use, if the Site is bought by another company, or for any other reason. Upon termination, you must cease use of the Site and destroy all materials obtained from the Site and all copies thereof, whether made under these Terms of Use or otherwise.

Any fraudulent, abusive or otherwise illegal activity may also be grounds for termination of your account, at our sole discretion, and you may be reported to appropriate law-enforcement agencies.

13. General Provisions

These contractual conditions shall be analyzed and governed by the laws of Ireland without regard to its conflict of law provisions. If any of these Terms of Use shall be illegal, invalid or void for any reason it shall be considered severable and shall not affect the validity or application of the other provisions.

14. Questions

If you have questions or concerns about Smarty Education’s Terms of Use please use the Contact Us form on the Help page or write us:

Smarty Education Limited,
Unit 4 The Plaza,
Tyrellstown Town Centre,
Dublin 15,
Ireland