Smore Terms of Service

Updated August 23, 2018

The Gist

We (the folks at Fireplace) run an online marketing and newsletter hosting service called Smore and would love for you to use it. Our basic service is free, and we offer paid upgrades for advanced features such as domain hosting and custom backgrounds. Our service is designed to give you as much control and ownership over what goes on your newsletters as possible and encourage you to express yourself freely. However, be responsible in what you publish. In particular, make sure that none of the prohibited items listed below appear on your site or get linked to from your site (things like spam, viruses, or hate content).


If you find a Smore newsletters that you believe violates our terms of service, please let us know.


(Note, this document is a modification of Wordpress.com's excellent Terms of Service, which are available under Creative Commons Sharealike license. This means you’re more than welcome to repurpose it for your own use, just make sure to replace references to us with ones to you).

Terms of Service

Introduction

The following terms and conditions govern all use of the Smore website (the “Website” or “Smore”) and all content, services and products available at or through the website (the “Services’). Our Website and Services are owned and operated by Fireplace, Inc. (”Fireplace”). The Website is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Smore's Privacy Policy) and procedures that may be published from time to time on this Site by Fireplace (collectively, the “Agreement”).


Please read this Agreement carefully before accessing or using the Website or Services. By accessing or using any part of the Website, using the Services, creating an account, or clicking on the “I accept” button you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this Agreement, then you must not access the Website or use the services. If these terms and conditions are considered an offer by Fireplace, acceptance is expressly limited to these terms. If you are under the age of 18, you represent that your parent or legal guardian has read, reviewed, and agreed to these terms. If you are a student under the age of 18 please speak to your parents and teacher about accessing a student account before proceeding here. If you are an educator or school you represent that you obtained permission from your students parent or guardian for your students to use the website through the “Classroom” feature. If you are accepting these Terms and using the Website and Services on behalf of a child, company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so.


IF YOU SUBSCRIBE TO THE PAID SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT FIREPLACE’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 3 BELOW.

PLEASE BE AWARE THAT SECTION 17 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.


If a user is found to violate this Agreement, Fireplace reserves the right to terminate or deny access to and use of the Website or Service to any individual or entity and is Fireplace's sole discretion, including but not limited to, the use of any individual features. Fireplace will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. Fireplace will have no obligation to provide a refund of any amounts previously paid.


We continuously make improvements and changes to the website or to its individual features. These updates may result in the complete removal, restriction, or new limits to certain parts of the service to you at any time, and without notice or liability, for example, restricting the ability to edit previously published newsletters. Fireplace has the right (though not the obligation) to terminate or deny access to and use of the Website to any individual or entity for any reason, in Fireplace's sole discretion, including but not limited to, the use of any individual features. Fireplace will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. Fireplace will have no obligation to provide a refund of any amounts previously paid.


Education Usage & Eligibility:


The Smore annual Educator account is only licensed for use by teachers, professors, or other educators and by their students under the educator's direct supervision in accordance with this the terms of this Agreement. If you are not a teacher, professor, or educator, you may not use the Smore annual Educator account.

1. Your Smore Account

If you create an account on the Website, you are responsible for maintaining the security and privacy of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection therein. You must keep your individual account and login credentials and passwords confidential and not authorize anyone else to use the Website or Services on your and/or their behalf. You must immediately notify Fireplace of any unauthorized uses of your account or any other breaches of security. Fireplace will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.

2. Responsibility of Contributors

By sharing any of your content, both publicly or in private and including but not limited to by email, social media, or the Mailing list feature, You agree to and accept responsibility of the content being shared and will NOT use or send any inappropriate messages, content, or anything considered “spam” as defined below. By using the Mailing list feature through the Website and Services, you agree to the email sending limits as well as maintaining the permitted number of total contacts, and assume full responsibility for any non-compliance, and as a result, denied access to any individual features or to the Website. Further, You accept the sharing features available through the Website and Services “as is” and take full responsibility for all sharing and email attempts that are undelivered, pending delivery, successfully delivered, or in any other status to your recipients.


If you publish a newsletter, comment on a newsletter, post material to the Website or Services, post links on the Website or Services, or otherwise make (or allow any third party to make) materials, including text, images, pictures, video, audio visual content, and other content available by means of the Website or Services (any such material, “Content”), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, linked or embedded content, or computer software. By making Content available, you represent and warrant that:

  • the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;

  • you have either own or have received all necessary rights to post or make available the Content in accordance with the terms of this Agreement;

  • you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;

  • the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;

  • the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);

  • the Content is not unlawful, obscene, pornographic, does not contain threats or incite violence, and does not violate the privacy or publicity rights of any third party;

  • your newsletter is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;

  • your newsletter is not titled in a manner that misleads your readers into thinking that you are another person or company. For example, your newsletter's URL or name is not the name of a person other than yourself or company other than your own; and

  • you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Fireplace or otherwise.


By submitting Content to the Website or Service, you grant Fireplace a world-wide, royalty-free, fully-paid, transferable, sublicensable and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of providing the Services. If you delete Content, Fireplace will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.


Without limiting any of those representations or warranties, Fireplace has the right (though not the obligation) to, in Fireplace's sole discretion (i) refuse or remove any content that, in Fireplace's reasonable opinion, violates any Fireplace policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Fireplace's sole discretion, including but not limited to, the use of any individual features. Fireplace will have no obligation to provide a refund of any amounts previously paid.

3. Payment and Renewal

General Terms

We offer both free and paid Services. All paid accounts are available on the Website as an “Upgrade.” By selecting an Upgrade you agree to pay Fireplace the monthly or annual subscription fees indicated for that Service. Payments will be charged on a pre-pay basis on the day you sign up for an Upgrade and will cover the use of that service for a monthly or annual subscription period as indicated.


Automatic Renewal


Your subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Fireplace’s then-current price for such subscription. Unless you notify Fireplace within three (3) business days prior to the end of the applicable subscription period that you want to cancel an Upgrade your subscription will automatically renew and you authorize us to collect the then-applicable monthly or annual subscription fee for such Upgrade (as well as any taxes) using any credit card or other payment mechanism we have on record for you. Upgrades can be canceled at any time in your account page. IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM; YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES.

3A. Upgrades and Downgrades

Following is a description of how Smore handles upgrades and downgrades for Pro subscribers, Smore subscribers with an already paid monthly or annual subscription.


Upgrades

When a paying customer decides to change their current plan to a more expensive plan, we will (i) cancel that customer’s then-current plan and refund them on a pro-rated basis, and charge them for the new plan in full.


For this example, let's assume that Alice subscribed to the Personal plan ($19/month) on January 1st, and that on January 15th she decides to upgrade to the Business plan ($49/month).


  1. We refund Alice for her 16 remaining days on the Personal plan (about $9.80).

  2. We charge Alice for one whole month of the Business plan ($49.00).

  3. On February 15th, her plan will auto-renew.

  4. Alice can cancel at any time, in which case her plan will not auto-renew and Smore will not charge her again.


By March 15th, Alice paid for 15 days of the Personal plan and one month of the Business plan.


Downgrades

When a paying customer chooses to change their plan from a more expensive plan to a less expensive (but still paid) plan, we will (i) permit that customer to continue to use their then-current plan for the remainder of the subscription term and not automatically renew such plan, and (ii) following the expiration of such term, charge that customer in full for their newly selected plan.


For this example, let's assume that Barbara subscribed to the Business plan ($49/month) on January 1st, and that on January 15th she decides to downgrade to the Personal plan ($19/month).


  1. Since Barbara already paid for a month of the Business plan (her billing period ends after one month, on February 1st), she will continue to enjoy the Business plan until February 1st.

  2. On February 1st, her plan will auto-renew, but instead of the Business plan she will now be on the Personal plan.

  3. Barbara will be charged $19 for one month of Personal service.


A downgrade from an annual subscription to a monthly subscription can only occur at the end of the annual subscription period. When a user decides to switch from any paid account to a Free account, that is called a cancellation.

3B. Refunds

Fireplace has a 30 day refund policy on your initial purchase and subscription payment. Fireplace will refund in full the initial subscription fees under the following conditions:

  1. The user had cancelled their paid account. You can confirm that your account has been cancelled and is a free account in the account page.

  2. The user asked for a refund either via emailing Smore support directly, or by submitting a support request through the site's Help button.

  3. Both (1) AND (2) happen within 30 days of initially subscribing to a Pro or Educator account.


After the cancellation period, the first 30 days of the first time subscription, all purchases are final and non-refundable including all renewal fees, except as expressly provided herein. Fireplace does not provide refunds or credits for Monthly or Annual accounts that are renewed, automatically or otherwise. If you are on a Monthly or Annual billing plan, you can cancel your subscription at any time and you will continue to have access to your Pro features on your account through the end of your billing period.


Pro account Upgrade fees

Upgrade fees will not be refundable. An upgrade fee is the fee charged when upgrading from a paid account to a more expensive paid account. The fee will be calculated as stated above in section 3A.


One-time charges and Add-on paid features

One-time charges such as newsletter credits and add-on paid features such as the Classroom feature are non-refundable. If you've made a purchase by accident or believe you deserve a refund for a one-time charge, please contact Fireplace support directly.


Currency conversion and extra charges

For technical reasons beyond Fireplace's control, it can only refund the original amount charged, in US Dollars. In some cases, credit card providers or banks may charge an additional fee, making the total expense larger than what Fireplace originally intended to charge. This may happen if the user is being billed in their home country's currency, for example. Fireplace is not responsible and is unable to refund these extra fees and charges.

4. Responsibility of Website Visitors

Fireplace has not reviewed, and cannot review, all of the material, including computer software, posted to the Website, and cannot therefore be responsible for that material’s content, use or effects. By operating the Website, Fireplace does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Fireplace disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.

5. Content Posted on Other Websites

We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which Smore links, and that link to Smore newsletters. Fireplace does not have any control over those non-Smore websites and webpages, and is not responsible for their contents or their use. By linking to a non-Smore website or webpage, Fireplace does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Fireplace disclaims any responsibility for any harm resulting from your use of non-Smore websites and webpages.

6. Copyright Infringement and DMCA Policy

As Fireplace asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Smore violates your copyright, you are encouraged to notify Fireplace. Without limiting the foregoing, if you believe that your work has been copied and posted on Website or Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Website or Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Fireplace’s Copyright Agent for notice of claims of copyright infringement is as follows: Shlomi Atar, 45 Rothschild Blvd Floor 6 Tel Aviv, Israel 6578403. Email address: shlomi@smore.com



Fireplace will terminate a visitor’s access to and use of the Website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Fireplace or others. In the case of such termination, Fireplace will have no obligation to provide a refund of any amounts previously paid to Fireplace.

7. Intellectual Property

This Agreement does not transfer from Fireplace to you any Fireplace or third party intellectual property, including with respect to the Website and Services, and all right, title and interest in and to such property will remain (as between the parties) solely with Fireplace. Fireplace, Smore, Smore.com, the Smore logo, and all other trademarks, service marks, graphics and logos used in connection with Smore, or the Website are trademarks or registered trademarks of Fireplace or Fireplace’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any Fireplace or third-party trademarks.

8. Advertisements

Fireplace reserves the right to display advertisements on your newsletters unless you have purchased a Smore Pro package.

9. Attribution

Fireplace reserves the right to display attribution links such as 'Powered by Smore' in your newsletter's footer, toolbar or sidebar. Footer credits and the Smore toolbar may or may not be removed depending on the upgrades purchased.

10. Domain Names

If you are registering a domain name, using or transferring a previously registered domain name, you acknowledge and agree that use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (“ICANN”), including their Registration Rights and Responsibilities.

11. Changes

Fireplace reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website or Services following the posting of any changes to this Agreement constitutes acceptance of those changes. Fireplace may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement or any supplemental terms and conditions made available by Fireplace.


12. Termination

Fireplace may terminate your access to all or any part of the Website or Services at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your Smore account (if you have one), you must delete your paid account following the instructions here, or for free users you may simply discontinue using the Website and the services provided by Smore. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

13. Disclaimer of Warranties

THE WEBSITE AND SERVICES ARE PROVIDED “AS IS”. FIREPLACE AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER FIREPLACE NOR ITS SUPPLIERS AND LICENSORS, MAKES ANY WARRANTY THAT THE WEBSITE WILL BE ERROR FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED. YOU UNDERSTAND THAT YOU DOWNLOAD FROM, OR OTHERWISE OBTAIN CONTENT OR SERVICES THROUGH, THE WEBSITE AT YOUR OWN DISCRETION AND RISK.

14. Limitation of Liability

In no event will Fireplace, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Fireplace under this agreement during the twelve (12) month period prior to the cause of action. Fireplace shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.

15. General Representation and Warranty

You represent and warrant that (i) your use of the Website and Services will be in strict accordance with the Fireplace Privacy Policy, with this Agreement and with all applicable laws, rules and regulations (including without limitation any local laws, rules or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your Content will not infringe or misappropriate the intellectual property rights of any third party.

16. Indemnification

You agree to indemnify and hold harmless Fireplace, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of: (i) your use of the Website, including but not limited to your violation of this Agreement; or (ii) your Content, including, without limitation, any claims that your Content infringes or misappropriates the intellectual property of any third party. This provision shall not apply to the extent prohibited by applicable law.


17. Dispute Resolution

Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Fireplace and limits the manner in which you can seek relief from us.

18. Applicability of Arbitration Agreement

You agree that any dispute or claim relating in any way to your access or use of the Website and Services, to any products sold or distributed through the Website, or to any aspect of your relationship with Fireplace, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Fireplace may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.

19. Arbitration Rules and Forum

The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us to: Shlomi Atar 45 Rothschild Blvd Floor 6 Tel Aviv, Israel 6578403. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Fireplace will pay them for you. In addition, Fireplace will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

20. Authority of Arbitrator

The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Fireplace. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

21. Waiver of Jury Trial

YOU AND FIREPLACE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Fireplace are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

22. Waiver of Class or Other Non-Individualized Relief

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in King County, Washington. All other claims shall be arbitrated.

23. 30-Day Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Shlomi Atar, 45 Rothschild Blvd Floor 6 Tel Aviv, Israel 6578403 or email shlomi@smore.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Fireplace username (if any), the email address you used to set up your Fireplace account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

24. Severability

Except as provided in subsection 17.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

25. Survival of Agreement

This Arbitration Agreement will survive the termination of your relationship with Fireplace.

26. Modification

Notwithstanding any provision in this Agreement to the contrary, we agree that if Fireplace makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Fireplace at the following address: Shlomi Atar, 45 Rothschild Blvd Floor 6 Tel Aviv, Israel 6578403

27. Miscellaneous

This Agreement constitutes the entire agreement between Fireplace and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Fireplace, or by the posting by Fireplace of a revised version. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website or Services will be governed by the laws of the state of Washington, U.S.A., excluding its conflict of law provisions. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Fireplace may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

Appendix: Changes

August 23, 2018: added a provision to section 16

July 19, 2018: Updated Intro, Downgrades section, Dispute resolutions, arbitration agreement.

February 2, 2018: Updated introduction to include educator usage & eligibility.

July 24, 2017: Updated section 1 clarify feature changes and Intro on website age policy.

November 21, 2016 : Updated sections 1, 3, 12 and Introduction.

April 30, 2015: Added section 3B detailing Fireplace's refund policy.

December 18, 2014: Changed plan names in section 3A.

March 12, 2013: Added upgrade and downgrade sections.

March 1, 2013: Initial terms published.