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SmarterChild End User Agreement

Please review the following End User Agreement (the "End User Agreement") carefully before subscribing to or using the SmarterChild Service (the "Service"). Additional terms and conditions of use applicable to specific portions and/or aspects of the Service may also be posted or accessed through the Service, and, together with this End User Agreement, govern your use of those areas or aspects. This End User Agreement, together with any such additional terms and conditions, are hereinafter referred to as the "Agreement."

This Agreement is a legal document between Colloquis, Inc., ("Colloquis, Inc.") and you. Please also read our Privacy Policy.

This Agreement governs your use of the Service. Your use of the Service is conditioned on the acceptance without modification of all the terms, conditions and notices contained in this Agreement, and use of the Service by you constitutes your acceptance thereof and your agreement to comply with these rules. If you do not accept all of the terms of this Agreement, you MUST exit the Service immediately and refrain from using the Service.

You can access this Agreement at any time by going to www.smarterchild.com/terms.shtml.

If your access to the Service is made available to you through an AOL® instant messaging service, you represent and warrant that you are current member in good standing of the AOL Service through which you are accessing the Service (e.g., AOL Service, AIM® Service or ICQ® Service), and have complied and will continue to comply with, and accept all applicable terms of such service (including without limitation all disclaimers set forth by the provider of such service therein) therefore (the "AOL Policies"). You can access the terms of service for each service as follows: http://www.aol.com/copyright.html and http://www.aol.com/info/privacy.html. AOL reserves the right to terminate your access to any AOL service without notice, if, in either AOL's sole discretion, there has been a violation of the AOL Policies.

Your failure to follow the Service's rules, whether contained in this Agreement or in supplemental notices displayed or accessible at various points in the Service, may result in termination of your access to the Service, without notice, in addition to any other remedies Colloquis, Inc. may have.

1. General

The Service is comprised of an interactive agents provided by Colloquis, Inc. that contains information, software, advertising and other content and information accessible through the Service, including, without limitation, all design, text, audio, images, data, graphics, links and other content and material (collectively, the "SmarterChild Content") that are owned by or licensed to Colloquis, Inc. and are protected by copyright, trademark and/or other proprietary rights of Colloquis, Inc. and its third party suppliers or licensors.

2. Use of the Service by You

You MUST be at least 13 years old to use the Service. If you are the parent of a child under 13 and you wish to block your child's access to the Service, please click here.

Your right to use the Service is personal to you. You shall not authorize others to use the Service. Subject to the terms and conditions set forth in this Agreement, you are granted a limited, non-exclusive, personal and non-transferable license to use the Service and receive the SmarterChild Content for your own personal and non-commercial use. Except for the licenses granted herein, you have no right, title or interest in or to the Service or any SmarterChild Content and Colloquis, Inc. retains all rights not expressly granted herein.

The SmarterChild Content and the Service are for your individual and personal use only. You shall not in any way make commercial or other unauthorized use, by publication, re-transmission, distribution (whether through an instant messaging service or otherwise), performance, copying, caching or otherwise, of the SmarterChild Content, except as permitted by the Copyright Act or other applicable law. In addition, you shall not create an Internet link to or frame of the Service or a mirror of any SmarterChild Content contained thereon, or accessible from or through, the Service on any other server- or Internet- or WAP/wireless-based device.

Other than connecting to Colloquis, Inc.'s servers using instant messaging technology, you shall not attempt to gain access to Colloquis, Inc.' servers by any means including, without limitation, by using administrator passwords or by masquerading as an administrator while using the Service or otherwise.

You agree not to use the Service to:

• upload, post, e-mail, transmit through instant messaging or otherwise any content or materials or take any action that: (i) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or racially, ethnically or otherwise objectionable; (ii) constitutes junk mail or spam or the instant messaging equivalents thereof; or, (iii) constitutes unauthorized advertising;
• harm minors in any way;
• impersonate any person or entity, including, but not limited to, an Colloquis, Inc. officer, employee, representative or agent, or falsely state or otherwise misrepresent your affiliation with a person or company;
• upload, post, e-mail or transmit through instant messaging or otherwise any content or materials that you do not have a right to transmit under any law or under contractual or fiduciary relationships or that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
• upload, post, e-mail, transmit through instant messaging or otherwise any material that contains software viruses or any other computer code, files or programs (including but not limited to any time bombs, Trojan horses, worms, scripts or other computer programming routines) that may damage, interfere with, intercept or expropriate any system, data or information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment including but not limited to the Service;
• interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
• violate, whether intentionally or unintentionally, any applicable federal, state, local, foreign or international law or any regulation or agreement having the force of law;
• collect or store personal data about other users of the Service; or
• reproduce, duplicate, copy, distribute, transmit, sell, resell or exploit for any commercial purpose any portion or use of or access to the Service or the SmarterChild Content.

3. SmarterChild Service

Colloquis, Inc. believes that the SmarterChild Content and other information you access through the Service is accurate and timely, but Colloquis, Inc. does not pre-screen or control the SmarterChild Content and, as such, does not warrant, endorse or guarantee the accuracy, integrity, timeliness or quality of any SmarterChild Content. Any SmarterChild Content or information placed on the Service or accessible through the Service by you represents the views of the person or entity originating such SmarterChild Content and does not represent the views of Colloquis, Inc. You understand that by using the Service, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will Colloquis, Inc. be liable in any way for any content, including, but not limited to, for any errors or omissions in any SmarterChild Content, or for any loss or damage of any kind incurred as a result of the use of any SmarterChild Content. You agree that you must evaluate, and bear all risks associated with, the use of any SmarterChild Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any SmarterChild Content created by, submitted to or provided by Colloquis, Inc. through the Service.

Although Colloquis, Inc. does not pre-screen SmarterChild Content, you acknowledge that Colloquis, Inc. and its designees shall have the right (but not the obligation) in their sole discretion to refuse, move or remove any SmarterChild Content that is available via the Service. Colloquis, Inc. reserves the right, in its sole discretion and for any or no reason, to restrict, suspend, or terminate your access to all or any part of the Service, including without limitation any or all of the SmarterChild Content, without prior notice or liability. Colloquis, Inc. may in its sole discretion change, suspend, or discontinue any aspect of the Service at any time and for any or no reason, including the availability of any feature, database, or SmarterChild Content, without prior notice or liability.

4. Third Party Sites

The Service may contain or provide links to sites on the Internet that are owned and operated by third parties (each an "External Site") and are accessible through the Service. You acknowledge and agree that Colloquis, Inc. does not endorse and is not responsible for the availability of, or the content located on or through, any External Site, including, without limitation, any link contained in an External Site or any changes to an External Site. You should contact the webmaster for any such External Site if you have any questions or concerns regarding such links or the content located on such External Site.

5. Third Party Merchants

You acknowledge that the Service may contain links to sites on the Internet or allow access to services which are owned, operated and provided by third party merchant partners of Colloquis, Inc. ("Merchant Partners"). You agree that:

• prices for products or services offered by Merchant Partners are completely within the control and discretion of such Merchant Partners and may be changed at any time without notice to you. Colloquis, Inc. does not and cannot endorse or guarantee the availability, quality or reliability of any products or services for sale by Merchant Partners, including payment and delivery of any such goods or services and any other terms, conditions, warranties or representations associated with such dealings; and
• Colloquis, Inc. does not and cannot accept, process or fulfill your orders from Merchant Partners and assumes no liability or responsibility for the acceptance, processing or fulfillment of your orders from Merchant Partners.

6. Third Party Advertisers

Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service (each a "Third Party Advertiser"), including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Colloquis, Inc. does not endorse any Third Party Advertiser, its services or goods, and Colloquis, Inc. shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.

7. Use of Material Submitted by You

Colloquis, Inc. maintains the privacy of material submitted by you, including queries, personal profiles or other content or information ("Your Content"), as set forth in our Privacy Policy. You acknowledge and agree that Colloquis, Inc. may preserve Your Content and may also disclose Your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any of Your Content violates the rights of third parties; or (d) protect the rights, property or personal safety of Colloquis, Inc., its users and the public.

8. Copyrights and Trademarks in General; Copyright Complaints

All contents of the Service are copyright ©2000-2004 Colloquis, Inc. The names of actual companies, products and/or services referenced in the Service may be the trade names, trademarks or registered trademarks of Colloquis, Inc., its third party suppliers or Merchant Partners or other third parties. All rights not expressly granted herein are reserved.

Colloquis, Inc. respects the intellectual property of others, and we ask our End Users to do the same. Colloquis, Inc. may, in appropriate circumstances and at its discretion, terminate the access of users, subscribers and account holders who infringe the copyright rights of others. If you believe that your work has been copied and is accessible through the Service in a way that constitutes copyright infringement, or that the Colloquis, Inc. Service contains links or other references to another online location or service that contains material or activity that infringes your copyright rights, you may notify Colloquis, Inc. by providing Colloquis, Inc.'s copyright agent the information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. 512. Colloquis, Inc.'s agent for notice of claims of copyright infringement through or regarding this Service can be reached as follows:

BY FAX: 212.625.1360
BY E-MAIL: info@smarterchild.com

9. Indemnification

You agree to indemnify and hold harmless Colloquis, Inc. and its affiliates, employees, agents, licensors, co-branders or other merchant or strategic partners and all other representatives of Colloquis, Inc. from any and all claims and liabilities (including attorneys' fees) that may arise out of or from: (i) any of Your Content that you submit to, or transmit through, the Service; (ii) your use of the Service; (iii) your connection to the Service; (iv) your violation of any of the terms and conditions of this Agreement; (v) your unauthorized use of material obtained through the Service or any SmarterChild Content; (vi) your violation of any rights of another; or (vii) any such acts arising through your use of the Service. Colloquis, Inc. reserves the right to assume exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Colloquis, Inc.'s defense of such claim.

10. Additional Rules

Colloquis, Inc. reserves the right, in its sole discretion, to change, add to or modify all or any part of this Agreement at any time, effective immediately upon the posting thereof at www.smarterchild.com. You are responsible for regularly reviewing this Agreement. If at any time you find that the terms and conditions of this Agreement are no longer acceptable, you should immediately cease all use of the Service, so please check this page regularly.

11. Term

The term of this Agreement commences when you accept the terms and conditions of this Agreement and continues until either you or Colloquis, Inc. terminate the Agreement. Any violation by you of any of the terms and conditions hereof shall immediately terminate this Agreement and any licenses granted herein. In addition, Colloquis, Inc. reserves the right to terminate this Agreement at any time and for any or no reason without prior notice or liability.

12. Disclaimer of Warranty and Limitation of Liability

YOU ASSUME FULL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE AND THE INTERNET. ACTIVEBUDDY, INC., ITS LICENSORS, MERCHANT PARTNERS AND/OR ITS RESPECTIVE AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS AND ACCURACY OF THE SMARTERCHILD CONTENT AND/OR INTERNET ACCESS OR THE SERVICE, INFORMATION PROVIDED BY OR THROUGH THE SERVICE, OR THE SERVICE FOR ANY PURPOSE, OR THAT THE SERVICE AND THE SMARTERCHILD CONTENT WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ACTIVEBUDDY, INC., ITS LICENSORS, MERCHANT PARTNERS, ITS AFFILIATES OR AGENTS MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE OR THE CONTENT. THE SERVICE AND THE CONTENT ARE PROVIDED AND DISTRIBUTED ON AN "AS IS" BASIS. NONE OF ACTIVEBUDDY, INC., ITS AFFILIATES, LICENSORS, AND AGENTS MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF: MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHERWISE, WITH RESPECT TO THE SERVICE; AND ANY CONTENT OR ANY PRODUCTS OR SERVICES SOLD THROUGH THE WEB SITE AND/OR INTERNET. NEITHER ACTIVEBUDDY, INC., ITS MERCHANT PARTNERS, LICENSORS, NOR ITS AFFILIATES OR AGENTS WARRANTS THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE WEB SITE AND/OR INTERNET WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU.

NEITHER ACTIVEBUDDY, INC., ITS LICENSORS, MERCHANT PARTNERS, ITS AFFILIATES OR AGENTS, NOR THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICE (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF OPPORTUNITY, TRADING LOSSES AND DAMAGES THAT MAY RESULT FROM INACCURACY, INCOMPLETENESS, INCONVENIENCE, DELAY, INTERRUPTIONS OR LOSS OF THE USE OF OR ACCESS TO THE SMARTERCHILD CONTENT OR THE SERVICE, OR FOR ANY FAILURE OF THE SERVICE OR ANY EXTERNAL SITE TO RECEIVE, RECORD OR PROCESS ANY INFORMATION OR ORDERS PROPERLY AT ANY TIME OR DURING ANY PERIOD OF TIME, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE OR TO ANY "FORCE MAJEURE" (I.E., FLOOD, EARTHQUAKE OR OTHER ACTS OF GOD, COMMUNICATIONS OR POWER FAILURE, OR PR EQUIPMENT OR SOFTWARE MALFUNCTIONS) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

FOR ALL CLAIMS RELATING TO ACTIVEBUDDY, INC. UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, IN NO EVENT SHALL ACTIVEBUDDY, INC.'S TOTAL LIABILITY HEREUNDER EXCEED THE FEE, IF ANY, PAID BY YOU FOR THE SERVICE.

SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF ACTIVEBUDDY, INC., ITS AFFILIATES AND THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

13. Miscellaneous

This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to conflict of law principles, and the parties hereto irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in New York, New York. Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph. You agree that no joint venture, partnership, employment or agency relationship exists between you and Colloquis, Inc. as a result of this Agreement or use of the Service. Colloquis, Inc.'s performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Colloquis, Inc.'s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by Colloquis, Inc. with respect to such use. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. Unless otherwise specified herein, this Agreement constitutes the entire agreement between you and Colloquis, Inc. with respect to the Service, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Colloquis, Inc. with respect to the Service. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as othr business documents and records originally generated and maintained in printed form. Colloquis, Inc. may assign its rights under this Agreement without notice to you. Sections 1, 3, 4, 5, 6, 7, 8, 9, 12 and 13 shall survive any termination of this Agreement and/or your use of the Service or any portion thereof, as well as any other provisions that by their terms or sense are intended to survive.

If you don't agree to the terms contained in this Agreement in their entirety, please exit the Service now and refrain from use of the Service.