Welcome to The Foos, which is owned and operated by codeSpark, Inc. (“Company” or “We” or “Us”) These terms are the binding legal agreement (the “Terms”) governing all users of the websites (the “Sites”), applications (“Apps”) and products and services that link to these Terms (the “Services”). In addition to these Terms, your agreement with Us includes the specific policies and additional terms that apply to any Services you use. If you do not agree to all of these terms, please do not use the Services. BY REGISTERING AN ACCOUNT, PURCHASING A SUBSCRIPTION, OR ACCESSING AND USING ANY OF THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS.

Privacy Policy

Use of the Services is subject to the Privacy Policy, located at: http://codespark.com/privacy. Throughout the Site and in all of the documentation, whenever we refer to the “Agreement” we mean these terms, including the Privacy Policy and other policies posted on the Site or provided in connection with the Services.

Ability to Accept Terms

If you are under the age of 18, you must have a parent, legal guardian or authorized school official of at least 18 years of age (“Adult User”) set up the account and agree to these Terms. Parents, legal guardians and authorized school officials affirm that they are fully able and competent to enter into the Terms and agree to these Terms.

Changes

We are constantly developing the Services. This means that we may change or discontinue any aspect of the Services without notice or liability to you. In addition, we may change all or part of the Agreement at any time, including these terms. We will post changes to these terms on the Site. YOUR CONTINUED USE OF THE SERVICES WILL CONSTITUTE ACCEPTANCE OF THE CHANGED TERMS.

Accounts

Each account must be set up by a designated Adult User. The Adult User is responsible for payments and all use on the account, including to protect the confidentiality of account information and passwords. Please notify Us if you have lost control of your account ID or password or you suspect there is unauthorized activity in your account. Subscriptions. For certain types of accounts, We charge a fee, such as a subscription or purchase fee. For existing subscribers, as a subscriber you may receive access to certain sections, features and functions of the Services that are not available to trial members. We currently offer monthly, annual and lifetime subscription options.

“Monthly” subscriptions are paid in monthly installments. For each month that your monthly subscription is active, you acknowledge and agree that We are authorized to charge the same credit card as was used for the initial subscription fee or other payment method in the amount of the then current monthly subscription fee. The monthly renewal subscription fees will continue to be billed to the Payment Method you provided, automatically until cancelled.

“Yearly” subscriptions are paid for by an upfront one-time payment with automatic annual renewal. “Yearly” subscriptions are paid for by an upfront one-off payment with automatic annual renewals respectively. You acknowledge and agree that We are authorized to charge the Payment Method used for the initial annual or two year subscription fee at the rate secured at the time of purchase.

Our “Lifetime” subscription is paid for by a one-off upfront payment.

You can become a subscriber by purchasing a subscription to the Services on the Sites, and within the Apps, where allowed by the App marketplace partners. By activating a paid subscription account, except where you have purchased a lifetime membership (where there is only a one time charge) you agree that we may renew your subscription automatically and you authorize Us to charge you upon the monthly or annual renewal as the case may be for the subscription term, unless you cancel your account prior to its renewal date through the cancellation procedures described on the platform where you purchased. Your credit card (or other method of payment if originally used) will be charged each year, month or other applicable period at the then-current applicable price. We may offer promotional trial subscriptions to access the Services for free or at discounted prices. If you sign up for a trial subscription, your rights to use the Services are limited to the terms of such trial and will terminate or renew according to those terms.

Prices

We may change the amount of such fees at any time at the end of your subscription period, provided that, we will first notify you by email or via posting on our website. Please note that we do not provide price protection or refunds for existing subscribers.

Cancellation

The cancellation procedures will be set forth on the platform where you purchase. For example, if you purchased a subscription through the Apple iTunes Store or our iPhone application, you may cancel automatic renewals by selecting Manage App Subscriptions in your iTunes Account settings and selecting the subscription you want to modify. If you purchased a subscription through the Google Play store you may cancel automatic renewals in account settings under Subscriptions in the Google Play app, or according to the current process outlined by Google Play. If you purchase a subscription through a bundle subscription partner, you may cancel according to the process outlined by the bundle subscription partner. You may also cancel by providing us notice at the address below at least 30 days prior to your renewal period. Please note that if you purchase a subscription through the Apple iTunes Store or our iPhone application, the sale is final, and is not subject to any refunds. Purchases made through Google Play can be refunded within 2 hours of when the purchase is made by going into your account order history and selecting the subscription you want to modify and clicking refund.

For cancellations, You must cancel your Monthly subscription before it renews each month in order to avoid billing of the next month’s subscription fee. You must cancel your Yearly subscription before it renews in order to avoid billing of the renewal subscription fee. Refunds cannot be claimed for any partial subscription period or once the next subscription period is charged.

Credit Card Charges

Subscriptions are in US dollars. Our third party payment provider can accept payments in multiple currencies and will convert and deposit funds in US dollars, subject to a conversion fee.

You agree to promptly notify Us of any changes to the credit card or other payment method you provided while subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions purchased by you. In the course of your use of the Services, We and our payment service provider may receive and implement updated credit card information from your credit card issuer in order to prevent your subscription from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to Us and our payment service provider at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the updated service. Should you desire to do so, please contact your credit card issuer.

Gift Subscriptions

The Site offers you the option to provide a Gift Certificate to the App to your favorite teacher or nephew. A “Gift Certificate” is a gifted subscription usually provided in the form of a redemption code issued by codeSpark to enable the purchased subscription to the Apps by the gift recipient (i.e. annual or lifetime). Payment can be made by credit cards and payment vehicles we accept online. A Gift Certificate is redeemable only on the Site and can only be used to redeem a pre-purchased subscription of our App/Game. To redeem a Gift Certificate, you must enter your redemption code at www.thefoos.com/redeem. Promotional offers for Gift Certificates may have specific terms and restrictions that apply.

Gift Certificates are non-transferable and may not be re-sold or bartered. Gift Certificates are not redeemable for cash (except where required by law) and cannot be used toward the purchase of a new Gift Certificate. All Gift Certificates will be honored until redeemed. Lost or stolen Gift Certificates are replaced only if we can verify the proof of purchase. The provisions of these Terms apply to Gift Certificates purchases, except where prohibited by law.

Terms for Gift Subscriptions

6 month, 12 month and lifetime subscriptions are available. For Lifetime subscription gift purchases, we will ship to the gift recipient a free Glitch plush toy (US addresses only). 30 day money back guarantee is available for 6 months and 12 months, but there are no refunds for lifetime purchases. Gift Certificates are non-transferable and may not be re-sold or bartered or redeemed for cash (except where required by law). All Gift Certificates will be honored until redeemed. Lost or stolen Gift Certificates are replaced only if we can verify the proof of purchase. We reserve the right to modify or end this offer at any time. Void where prohibited or restricted by law.

Things Not to Do

• Give false or misleading information to Us or anyone else in connection with your use of the Services, including giving false information in an account registration.
• Access or scrape the Site by any automated means unless you are a search engine crawling the Site for the sole purpose of creating a publicly accessible search index; or bypass any technical protections or throttling that we institute.
• Copy, modify, create derivative works from, or distribute any content from our Services; or copy, display or use the trademarks in any way; or use the Services for any purpose not explicitly authorized in the Agreement.
• Use the Services for any revenue generating endeavor, commercial enterprise, or other purpose other than for personal, non-commercial use.
• Link to the Site using any HTML techniques that display the Site within a frame, partial window, popup, pop-under, or any other non-standard linking method, or redistribute content from the Site except as expressly authorized by Company.
• Anything we ask you not to do.

User Generated Content/Take Downs

• For all content created by users (“UGC”), We reserve the right to remove any UGC temporarily or permanently if We are notified by a player, parent or a third party, or if we otherwise become aware that any such content or any part of it breaches this terms or otherwise violates our policies including due to any of the following:
• It breaches the intellectual property rights or any other rights of any third party;
• It breaches any applicable law;
• It is pornographic, inappropriate, or otherwise breaches our rules;
• It contains any virus, malware, other harmful software or may have an adverse impact on Us;
• While we do not accept any obligation to monitor, screen, review, flag, filter, moderate or remove any UGC, though we reserve the right to review and monitor as necessary.

If you have any concerns that UGC breaches any of these requirements, or other basis by which you want us to takedown content, then please contact us at: info@codespark.com.

Limited License to Use the Services; Company Rights;

Subject to your compliance with these Terms, We hereby grant you permission to use the Services solely for your personal, non-commercial use, and in case of schools, solely for educational use (i.e. teachers may use the Services for educating their students only without charging any fees). Company retains all right, title and interest in the Services, including all technology and processes, enhancements or modifications thereto, trademarks, service marks, site design, text, video, graphics, logos, images and icons, as well as the arrangement thereof. You acknowledge that the Services contain proprietary content, information and material protected by applicable intellectual property and other laws, including but not limited to copyright laws. Except for rights expressly granted in the Agreement, nothing in the Agreement grants you any right, title or license. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited.

Third Party Trademarks and Content

Use of any third party trademarks or third party content on or in connection with the Services does not constitute affiliation with or endorsement of these third parties. Nothing in the Agreement grants you any license to third party trademarks or content, which shall remain the property of their respective owners.

Indemnity, Disclaimers and Limits on Liability

COMPANY PROVIDES THE SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED, OR STATUTORY. COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATIONAL CONTENT, AND NON-INFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES. COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT ANY DEFECTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THIS DISCLAIMER IS MADE TO THE FULLEST EXTENT PERMITTED BY LAW.

IN NO EVENT WHATSOEVER SHALL COMPANY, ITS AFFILIATES, OR SUPPLIERS OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME, (ARISING UNDER TORT, CONTRACT, OR OTHER LAW) REGARDLESS OF SUCH PARTY’S NEGLIGENCE OR WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT THE DOWNLOAD OF ANY MATERIALS IN CONNECTION WITH SERVICES IS DONE AT YOUR DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. COMPANY NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SERVICES. IF, NOTWITHSTANDING ANY PROVISIONS OF THESE TERMS, COMPANY 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 ANY SERVICES, COMPANY’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY FEES PAID BY YOU TO COMPANY IN THE SIX MONTHS PRIOR TO THE DATE THE CLAIM IS ASSERTED FOR ANY SERVICE OR FEATURE RELEVANT TO THE CLAIM, OR (2) US$100.00. COMPANY’S LIABILITY HEREUNDER IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

You will indemnify, defend, and hold harmless Company, its affiliates, officers, directors, shareholders, employees, contractors, licensors, licensees, agents, and representatives (the “Covered Entities”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) (“Liabilities”) incurred by any Covered Entity in any way arising out of or relating to the Services and any failure to comply with this Agreement. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with the defense of such claim.

General

We do not want to receive information that is confidential or proprietary. If you send us feedback, suggestions, content or ideas of any kind, including potential improvements to the Services, we may use such suggestions, content and/or ideas for any or all purposes, with no compensation or attribution to you.

This Agreement will not be construed against either party as the drafter.

You are responsible for being informed about and complying with all laws, rules and regulations that apply to your use of the Services.

Your registration and use of the Services constitutes consent to receiving electronic communications from Us. You agree that any such communications from Us satisfies any legal requirements, such as that notice be provided to you in writing. You also consent to receiving promotional messages, offers, surveys, and requests electronically. If you no longer want to receive non-transactional communications, you may unsubscribe at any time.

As stated above, the Agreement includes these terms and any additional terms you enter into with Company. The Agreement is the entire agreement between you and Company and it replaces any other agreement between us on this subject. Aside from the right of Company to make changes, any amendments to the Agreement must be in a writing signed by both parties.

You cannot assign the Agreement without the written agreement. We can assign the agreement to any entity that agrees to be bound by the terms of the Agreement.

The Agreement is governed by California law, excluding its choice of laws principles. The exclusive venue for any litigation arising from or related to the Services shall be the courts of Los Angeles County, California, except for any optional arbitration as described next. Excluding claims for equitable relief, if the total amount in dispute is less than $5,000, either party may elect to resolve the claim through binding arbitration by initiating arbitration through an established provider that is agreed by the parties. The arbitration must be conducted under the following rules: (a) at the choice of the party seeking relief, the arbitration shall be conducted by telephone, online, or solely on written submissions; (b) no party or witness will make any personal appearance unless the parties agree otherwise; and (c) the winning party may have the arbitrator’s award entered as a judgment in any court of competent jurisdiction. Any claims (in court or in arbitration) must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding. This Agreement does not allow class of collective arbitrations even if the arbitration procedures or rules would. The arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

If any part of the Agreement is invalid, illegal or unenforceable, that condition will not affect any other provision of the Agreement. A delay or failure to require performance of any provision will not constitute a waiver of any rights and will not impede the ability to enforce that provision later.

CODESPARK, INC., 130 W. UNION STREET, PASADENA, CA 91103: INFO@CODESPARK.ORG
DATED DECEMBER 31, 2016