SMART amp™ Terms of Use

Last updated: August 15, 2016

Introduction
Thank you for using SMART amp™ ("services"). This Terms of Use ("Terms") document is a legal agreement between SMART Technologies ULC (together with its subsidiaries, collectively "SMART", "we", "us" or "our") and you.

If you are accepting these Terms on behalf of an organization (such as a school or school district) you represent and warrant that you have the authority to bind such organization, that such organization has delegated its authority to you for this purpose, and "you" in this agreement includes that organization. You also agree that you, and not SMART, are solely responsible for obtaining advance written consent from all parents or guardians whose children (minors under the age of 18) will be accessing these services and you agree to provide SMART with notice regarding any changes to any users’ parental consent.

These Terms incorporate by reference SMART’s Privacy Policy and thus, by agreeing to these Terms you are agreeing to our Privacy Policy. If you are a minor, your parent or guardian must agree to these Terms on your behalf. Please see the additional provisions that apply to minors under our Privacy Policy.

By using our services you are agreeing to be bound by these Terms. If you do not agree with these Terms you must not use SMART amp. These Terms also apply to SMART amp updates, patches and any related Internet or mobile based applications or services unless other terms accompany them.

SMART may modify these Terms, including our Privacy Policy, at any time by posting the updated Terms on this page. You are responsible for regularly visiting this page to obtain notice of any changes and to stop using SMART amp if you do not agree to the amended Terms. Your continued use of SMART amp following the posting of any changes to these Terms will indicate your assent to any such changes or amendments. If a revision, in our sole discretion, is material we may choose to notify you via a communication (such as a pop-up) within the service.

SMART grants and you accept a non-exclusive, non-transferable license to use SMART amp for educational purposes subject to the following terms and conditions:

Class Action Waiver
To the extent permitted by law, any and all proceedings to resolve or litigate a dispute must be conducted solely on an individual basis. Neither you nor SMART shall seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts, or proposes to act, in a representative capacity.

Cookies
We use cookies to enhance your experience. Portions of our service will not work or will create a sub-optimal user experience without cookies turned on. To find out more about the cookies we use please visit the Cookie Policy section of our Privacy Policy.

Creating an Account and Using the Services
This Subsection Applies to Schools:
As an account administrator SMART amp requires you to complete a registration process to create an account. A part of that process (the most important part according to our lawyers) is reading and then agreeing to these Terms and our Privacy Policy that binds you and your organization. If you do not agree to these Terms you must not create an account or use SMART amp. You further represent, warrant and agree that:

SMART has your consent to contact you, and is allowed to do this via the services, the e-mail address or phone number you use to create your account.
You are responsible for complying with all applicable privacy legislation.
If you are binding an educational agency or institution in the United States that meets the criteria set out in Family Educational Rights and Privacy Act ("FERPA"), and is therefore subject to FERPA, you will fully comply with it.
Prior to submitting any personally identifiable information to SMART or granting users access to SMART amp, you are solely responsible to obtain, and will obtain, all parental, guardian, teacher, or other consent required to provide the education content and records or other personally identifiable information of the users to SMART and its service providers (some of which are listed below). If you are in the United States you are responsible for complying with the Children's Online Privacy Protection Rule ("COPPA"), meaning that you must obtain advance written consent from all parents or guardians whose children will be accessing the services or submitting personally identifiable information through the Services. When obtaining consent, you must provide parents and guardians with a link to these Terms and our Privacy Policy and you must keep all consents on file and provide them to us if we request them. You will promptly notify SMART of any changes to any consents related to users of the services. You also agree to fully indemnify and save SMART harmless from and against any complaints, actions or legal proceedings initiated by any third person against SMART or its service providers, and all associated damages, awards, judgments and costs (including attorney fees) arising from your failure to obtain any such consents.
Assignment of user identification credentials is determined by you and will be based on Google login identity systems login credentials within certain set parameters. You are responsible to manage the identity system as well as which of your users are permitted "administrator", "teacher" or "student" access. As such, you are responsible to ensure those assigned "teacher" or "administrator" roles understand what student and other information can and cannot be shared with or through the services.
You are responsible to monitor and manage: (i) any opt-outs of parental, guardian or other consent that would require removal of a student, teacher or other individual from our services or require a change in the way SMART can collect or use a user’s information; (ii) use of SMART amp, and (iii) any delivery of student data or educational records from you to SMART. In doing so, you shall manage user ID’s and access to ensure compliance with such opt-in or opt-out selection, including in providing SMART with user login credential information and updates regarding opt-out or opt-in preferences. You will only collect and distribute information on minors with express parental consent as set forth herein.
You are contracting with SMART to perform data functions for which you would otherwise use your own computers and employees to perform and thus, in providing these data functions for you, SMART is under your direct control with respect to the use and maintenance of education records and SMART is merely a data processor; you are the data controller. As such, you hereby direct SMART to release your and your user’s information to our service providers (for the purpose of providing the service) and we may require additional direction from you should one of your users, or a parent or guardian request a copy of their information. Additionally, you may be required by the laws in your jurisdiction to enter into a data processor agreement with SMART. If so, please contact us to as we would be happy to execute such an agreement.
You accept the terms of service of our Safe Harbor compliant third party providers:
1. Google, Inc.
  1. Google Drive: http://www.google.com/policies/terms/
  2. Google Apps for Education: http://www.google.com/apps/intl/en/terms/education_terms.html
2. Amazon.com, Inc.
  1. Amazon Web Services: http://aws.amazon.com/terms/
You understand that our service providers will be storing your and your users’ information in their applicable data centers that are generally physically located in your geographic region, but almost always include the United States.

SMART shall be entitled to change (substitute or augment) the above service providers from time to time, provided that any such replacement, substitute or additional provider be required to maintain similar protective measures with respect to education records, such as obtaining an assurance of Safe Harbor compliance or a similar commitment to confidentiality. To the extent SMART is providing information to such third party (and such information is not independently in the possession of this third party through you or users of the services directly), SMART shall require that any such third party acknowledge that information shared with it be considered personally identifiable information or confidential information and not be used for any purpose other than in aiding in the provision of the services described herein, and will not be further redistributed beyond such purpose.

You agree that the information that you supply to SMART will be true, current, accurate and complete, and you agree not to: (i) provide the name of another person; (ii) choose a username that may be deemed offensive; or (iii) choose a username for the purposes of deceiving or misleading other users as to your true identity. You agree to maintain and promptly update your registration data as necessary to keep it true, current, accurate and complete. If, after investigation, SMART has reasonable grounds to suspect that any registered user's information is untrue, inaccurate, not current or incomplete, SMART may suspend or terminate that registered user's account and prohibit any and all current or future use of the service (or any portion of it) by that user.

SMART is concerned about the privacy and safety of all its users, and in particular, of minors. For this reason, if you believe that a minor may have provided us personal information beyond what is requested when signing up, or the required parental or guardian consent has not been obtained, please contact us immediately at privacy@smarttech.com.

This Subsection Applies to Students:
IF YOU ARE A MINOR, YOUR PARENT OR GUARDIAN MUST AGREE TO THESE TERMS ON YOUR BEHALF. IT IS YOUR RESPONSIBILITY TO CONFIRM WITH YOUR TEACHER, OR PARENT, OR GUARDIAN THAT YOUR SCHOOL HAS OBTAINED YOUR PARENT OR GUARDIAN’S EXPRESS CONSENT TO USE OUR SERVICES.

YOUR PERSONAL INFORMATION WILL BE COLLECTED, USED AND DISCLOSED AS REQUIRED IN ORDER FOR SMART TO PROVIDE THE SERVICES TO YOU, AND FOR NO OTHER PURPOSE. YOUR PERSONAL INFORMATION WILL BE PROCESSED AND STORED WITH GOOGLE AND AMAZON IN THEIR APPLICABLE DATA CENTERS. OF COURSE, ANY PERSONALLY IDENTIFIABLE INFORMATION YOU PROVIDE WILL BE MANAGED BY SMART IN ACCORDANCE WITH ITS PRIVACY POLICY. If you would like your personal information removed from our services please refer to the Opting Out or Removing "Personal Information" section in our Privacy Policy. Please note however, if you wish to have your information removed or a copy of it we may first need approval from your school.

Disclaimer of Warranties and Limitation of Liability
THE SERVICE IS PROVIDED "AS-IS" AND ITS USE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMART AND ITS SUPPLIERS, LICENSORS, DISTRIBUTORS AND RESELLERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND NONINFRINGEMENT WITH REGARD TO SMART PRODUCTS AND ANY COMPONENT THEREOF, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. SMART DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT IS OR WILL BE INTERRUPTION FREE, DEFECT FREE OR WILL MEET YOUR NEEDS.

To the maximum extent permitted by applicable law, in no event shall SMART or its suppliers, licensors, resellers or distributors be liable for any special, incidental, indirect, exemplary, consequential or punitive damages whatsoever (including, without limitation, damages for any injury to any person or property, damages for loss of profits, business interruption, loss of business information, loss of privacy, damages for procurement of substitute goods or services, damages for loss of use, loss of data or personal information, damages for failure to meet any duty including the duties of good faith or of reasonable care, for negligence or any other pecuniary loss) arising out of the use of or inability to use the software or any component thereof or the provision of or failure to provide support services, whether based on contract, tort, negligence, strict liability or otherwise, even if SMART or its suppliers, licensors, resellers or distributors have been advised of the possibility of such damages. IN ANY CASE, SMART'S ENTIRE LIABILITY UNDER THESE TERMS SHALL NOT EXCEED THE FEES YOU PAID SMART FOR THE SERVICES IN THE PRECEDING TWELVE (12) MONTHS.

Export Restrictions
You agree that you shall comply with all domestic and international export laws and regulations. In particular, you agree that you shall not export or re-export our service (including components) or any direct product of the software to any country, person or entity subject to Canadian, American or your own country’s export restrictions.

Feedback
We do appreciate your suggestions but please be aware that any comments, feedback or ideas you share with us while not under a non-disclosure agreement shall be treated as non-confidential and you will, and do hereby, assign us all right, title and interest to them. This means we are free to use them for any purpose, without compensation, acknowledgment or other obligation of any kind to you.

Governing Law
This agreement is governed by and construed in accordance with the laws of Alberta, Canada. You irrevocably agree that any dispute, including litigation, involving this agreement or SMART must be brought in the courts in the City of Calgary, Province of Alberta. You shall not assert any claim that you are not subject to the jurisdiction of such courts, that the venue is improper, that the forum is inconvenient or any similar objection, claim or argument. This agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Notwithstanding this, you agree that SMART shall still be entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

Invalidity of Provisions
If any provision of these Terms is invalid or unenforceable under applicable law, that portion will be construed consistent with applicable law as nearly as possible, or failing that, deemed omitted, and the remaining provisions will continue in full force and effect. The failure by a party to exercise any right shall not operate as a waiver of such party's right to exercise such right or any other right in the future.
Any waiver or modification of these Terms by SMART must be in writing and signed by an authorized officer of SMART and they must expressly reference the applicable provisions of the Terms.

Moderators
SMART has no obligation to monitor Submissions or other materials. However, your moderators may monitor Submissions. Moderators are not obligated to pre-screen Submissions, monitor on a "real time" basis, or edit Submissions. As a user, you may see content that is offensive or objectionable and it is your responsibility to report it to your school, teacher and SMART.

SMART reserves the right to manage the Submissions in order to facilitate the orderly distribution of information through the service.

Reporting a Concern, Dispute or Take-Down Request
If you believe someone is violating these Terms you may report such abuse to privacy@smarttech.com. Additionally, you may request SMART remove any Submission you have made and, upon confirmation that the Submission is yours, SMART will try to remove the Submission.

SMART respects the intellectual property of others, and we ask you to do the same. Each user is responsible for ensuring that the materials they submit to the service do not infringe any third party copyright. SMART will promptly remove materials from the service if properly notified that the materials infringe a third party’s copyright. If you believe that any submission residing or accessible on or through the services infringes a copyright, please send a notice of copyright infringement containing the following information to SMART at the address below:

The applicable legislation in your jurisdiction, such as the Digital Millennium Copyright Act ("DMCA") in the United States, that you are relying on for your request.
Your contact information, including name, address, telephone number, and email address.
Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that SMART can locate the material.
Identification and description of the work or material that you claim has been infringed.
A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
A statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Your electronic or physical signature.
Send to:
SMART Technologies ULC
3636 Research Road N.W., Calgary, AB T2L 1Y1
Attn: Privacy Officer
Email: privacy@smarttech.com

Revoking Your License
If you do not comply with these Terms we may revoke your license and terminate this agreement upon written notice to you, and thereby terminate your access to the service. In such event, you must immediately stop using the services and, if applicable, destroy all your copies.

Security
You are responsible for maintaining the confidentiality of your passwords, account information and access. You are also entirely responsible for any and all activities (and any misuses) that occur under or that originate from your account (including temporary accounts established with temporary identification numbers), including activities committed by any friend, family, co-worker, employee, guest or anyone with access to your account. You agree to ensure that you exit from your account at the end of each session (if you use a shared computer) and to notify your school, and then SMART, immediately of any unauthorized use of your account or any other breach of security. Additionally, you could be held liable for losses incurred by SMART or another party due to someone else using your account or username. You may not use anyone else's account at any time, without the permission of the account holder.

SMART Exchange® Images
In addition to the Terms, you acknowledge that SMART supplied images, pictures, multimedia, SMART Notebook files or pages, backgrounds or themes forming all or part of SMART Exchange are subject to the following additional conditions:

You are permitted to use images that we provide only with SMART products.
You may access, copy, distribute, publish, and otherwise use unmodified images subject to the condition that you maintain any proprietary marking or notices on the image (such as ®, ™ or ©, and maintain a reference to the original author and/or the SMART logo or trademark to the extent that same was contained on the image, and further subject to the rest of these conditions.
You are not permitted to modify, adapt, reverse engineer, or otherwise alter images or the SMART Lesson Activity toolkit template (including flash) code.
Images that are SMART Notebook files, backgrounds, pages, themes, interactive files, or multimedia may be modified and used in accordance with these Terms.
You are not permitted to use the images in whole or in part for resale or any commercial purpose, whether or not incorporated into another product or offering, and whether the original SMART Exchange image or a derivative thereof.
You are not permitted to download the images in mass or bulk amounts, regardless of whether the intent is to use such content for commercial purposes; and are not to be (whether in original form or modified) offered, distributed, transmitted, or displayed, on or in a site, product, offering or service, including those competitive to SMART's offerings or otherwise.
Certain images (such as the 3D or Mixed Reality images) may not be fully or properly viewable without the use of the SMART Mixed Reality software, which may only be available under a separate license and associated license fee.

SMART Provided Content
While reasonable efforts have been made to ensure the information on our website and in our products is as accurate and up-to-date as necessary for the purposes for which it is to be used, the information does not represent a commitment on the part of SMART. SMART MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO ITS USE. Information published may contain references to products, programs or services that are not announced or available in all countries. Such references do not imply that SMART intends to make such products, programs or services available in any specific country. The information available is provided as a convenience only.

Images (such as SMART product images, for example) and all other content contained in our products that is not specifically offered for download by the users (such as through the SMART Exchange® website, for example) is the property of SMART or its licensees and you agree not to copy, publish, distribute, display or otherwise use such materials other than viewing them, without the express written permission of SMART.

Third Party Intellectual Property Notices
SMART amp contains third party code and some of these components have attribution statements and are made available subject to the terms of their respective licenses. You acknowledge and agree that it is your responsibility to read and comply with the terms and conditions of all such third party components: IP Document.

Third Party Offerings and Sites
Our products, primarily because of user Submissions, may contain or reference links to third party websites. Clicking on links contained in Submissions is done at your own risk. The inclusion of any link or reference to a third party service, product or promotion is not and does not necessarily imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by SMART of any information contained in any third party site.

If you decide to use third party services, you are responsible for reviewing and understanding the terms and conditions governing any third party services (including their privacy policies). You agree that the third party, and not SMART, is responsible for the performance of the third party services, your privacy, the information contained in such third party site and for your use or inability to use such third party site.

Trials
By agreeing to these Terms and Conditions, you consent that SMART or an authorized SMART representative may contact you (by phone, e-mail or mail) with information about SMART solutions, training, events and special offers. You can withdraw your consent at any time. To unsubscribe, visit https://smarttech.com/unsubscribe

User Provided Content (Submissions)
In these Terms, the expression "Submission" means content submitted by users, and includes, but is not limited to, any user contributed file, text, images, content, video, sound files, communications, opinions, links, software, data, and any other content any user provides. Users may contribute Submissions in a variety of manners including, but not limited to content upload pages or other methods of file content sharing, message boards, homework assignments, chats (discussion forums) blogs, calendar of events, audio and/or podcasts, video blogs, personal web pages, wiki pages and/or other message or communication facilities designed by our services to enable users to communicate or share materials with others.

You will retain any ownership rights that you may have in your Submissions. You do however, grant SMART a worldwide, irrevocable, perpetual fully paid-up, royalty free license, with an unrestricted right to sublicense, to translate, transmit, display, modify (for technical purposes) and copy such Submission for the purpose of enabling us to operate the services. You represent and warrant that you have the full legal right to post, upload, display, transmit, or otherwise use any Submission that you provide.

You acknowledge that all Submissions, whether publicly posted or privately transmitted, accessible through our products are the sole responsibility of the person from whom the Submission originated, and YOU ARE USING SUCH SUBMISSION AND ALL MATERIAL CONTAINED THEREIN AT YOUR OWN RISK. SMART does not control the Submissions provided by users, and can therefore not guarantee the accuracy, quality, integrity or ownership of such Submission. You acknowledge that you may be exposed to Submission material that you find offensive or indecent, or for which the underlying rights have not been properly obtained. You acknowledge that SMART assumes no responsibility for content posted by third parties which is available through our services or products, including Submissions. You are solely responsible for your use of the Submissions and any disputes you may have with other users, even though SMART may provide a method for users to advise of a dispute or complaint (please see the Reporting a Concern, Dispute or Take-Down Request section for additional information).

You may include hypertext links in Submissions to content hosted and maintained by third parties so long as the content on such websites, if posted in our services or products, would not violate our Terms. SMART exercises no control whatsoever over such other websites and web-based resources. SMART does not endorse or guarantee the accuracy of any Submission or other content in our services or products. You agree that SMART is not responsible for the accuracy or availability of any third party content, advertising, promotions, products or other materials accessible through our services or products and will not be liable for any damages incurred as a result of the Submission or use of any such content.

SMART reserves the right, but is under no obligation, to review any Submissions and to remove or refuse to remove or post any Submissions or links within Submissions in its sole discretion.

Should your license or account be terminated as set forth herein, you may immediately lose access to your account and any materials saved in your account; please backup any of your information or content that you do not want to lose.

While SMART strives to maintain your privacy (see our Privacy Policy), you should always use caution when giving out any personally identifiable information about yourself or submitting minor’s information in any Submission. Any Submissions that you make can potentially be obtained and used by others. SMART does not control or endorse the content, messages or information found in any Submissions in our services or products. SMART specifically disclaims any responsibility or liability with regard to the Submissions and any actions resulting from your participation in any Submissions.

SMART reserves the right in its sole discretion, but without obligation, to remove any Submissions containing phone numbers, street addresses or otherwise personally identifying information as it cannot verify such information or confirm the desire of said information to be posted by the individual to which this information pertains. SMART may, subject to a removal request from the affected individual, leave information of an identifiable individual posted if SMART believes such information to be business contact information intended for public access in such manner.

While in certain portions of some services or products, you are able to remove Submissions made by you or restrict access to them, you acknowledge that this license cannot be terminated or the waiver revoked by you once the Submission is made. For example, if other users have downloaded your Submission for creation of a lesson, they continue to have the right to use such Submission that was downloaded in accordance with these Terms even after you remove your Submission.

You shall not contribute or edit any Submission, unless:

you have the legal right to submit your Submissions, which includes, without limitation, that you are the author or licensee of any copyrighted content that you provide, and that you are legally permitted to contribute it in accordance with a license or arrangements with your employer or third parties for use consistent with the manner the Submissions will be used as permitted under these Terms;
where the Submissions are photographs, images, pictures or that are otherwise graphical in whole or in part, you warrant and represent that each person depicted in such images, if any, (and if a minor, the parent or guardian of the minor) has provided consent to the use of the images as set forth in these Terms, including, by way of example, and not as a limitation, the distribution, public display and reproduction of such Images; and
you believe that it is correct, non-offensive and legal and does not infringe any third party rights (including, without limitation, under anti-defamation laws).

You are expected to respect and interact with other users in the public forums as you would in any public arena and refrain from using offensive, harassing or otherwise inappropriate language in any Submission. You acknowledge that you are responsible for your interaction with other users.

Use of our services or products for any activity that violates local, provincial, national, international law, order or regulation, is a violation of these Terms.

You hereby authorize SMART to cooperate with (i) law enforcement authorities in the investigation of suspected criminal violations, and/or (ii) system administrators at Internet service providers or other network or computing facilities in order to enforce these Terms.

YOU ACKNOWLEDGE THAT A PARTY AGGRIEVED BY YOUR UPLOADING OF ANY CONTENT WHICH IS, INTER ALIA, A BREACH OF COPYRIGHT OR DEFAMATORY MAY TAKE LEGAL ACTION WHICH COULD RESULT IN YOUR PERSONAL INFORMATION BEING DISCLOSED AND YOU HAVING TO PAY COMPENSATION TO THE AGGRIEVED PARTY.

Term and Termination
This Subsection Applies to Schools:
The agreement, and its term, starts when your order for SMART amp is accepted. Terms are either one (1) year or (3) years and will not auto-renew. Consequently, you will be contacted prior to the term’s expiry to remind you about renewing the service.

You may cancel this service within the first thirty (30) days of your order’s acceptance and receive a refund. After the initial thirty (30) day period you may cancel this service and terminate this agreement with an advance forty-five (45) day written notice but you will not receive a refund. In other words, after the initial thirty (30) days, all fees paid are non-refundable and your termination shall not relieve you from any payment obligations that may have arisen prior to such termination.

Upon termination we will suspend your access to the services and you must immediately stop using SMART amp. Upon termination your data may be deleted so it is your responsibility to back up your data to your own computer prior to termination.

SMART may terminate this agreement in its sole discretion if you breach of any of your representations, warranties or obligations under this agreement.

The following sections shall survive the termination of this agreement: Introduction, GENERAL TERMS, Class Action Waiver, Disclaimer of Warranties and Limitation of Liability, Export Restrictions, Feedback, Governing Law, Invalidity of Provisions, Dispute or Take-Down Request, Security, SMART Exchange Images, SMART Provided Content, Third Party Offerings and Sites, User Provided Content (Submissions), Term and Termination and any other section that by its terms must survive the termination of this Agreement.

This Subsection Applies to Students:
If you no longer wish to be bound by this Agreement, you must stop using the services and provide sixty (60) day advance written notice to SMART and your teacher, or school as the case may be, of your intention to do so. Upon receipt of such notice, SMART may terminate or suspend your account. Please note that termination may not result in the deletion of your information and Submissions unless specifically requested by your parent or guardian or school, and to the extent required by applicable law.

HAVE A QUESTION FOR US? We would love to hear from you:

SMART Technologies ULC
Attention: Legal Department
3636 Research Road N.W.
CALGARY, AB CANADA T2L 1Y1
+1.403.245.0333