Please read these Terms and Conditions (“Terms”, “Terms and Conditions”) carefully before using the BAPA Plus mobile application (the “Service”) operated by Smarty Ears LLC (“us”, “we”, or “our”).
Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.
Smarty Ears LLC’s BAPA Plus includes two modes of purchases: Consumable and Subscription.
1.0 App store Subscription Terms:
Smarty Ears LLC’s BAPA Plus Subscriptions are an Auto-Renewable, subscription service which gives you complete access to unlimited administrations of BAPA on the iPad.
- Subscription prices vary depending on subscription selection: Monthly($5.99), or Yearly ($49.99).
- Payment will be charged to iTunes Account at confirmation of purchase
- Subscription automatically renews unless auto-renew is turned off at least 24-hours before the end of the current period
- Account will be charged for renewal within 24-hours prior to the end of the current period.
- Manage your subscription and/or turn off your auto-renewal by going to the your Account Settings after purchase
- Cancellation will not go into effect until the end of the monthly billing cycle
- All other iOS App Terms are detailed at section 21, below.
Consumable purchases (Per administration)
BAPA Plus includes three free administrations per device and alternative to subscription which is a pay per administration purchase. This option on BAPA Plus offers the ability to purchase 5 administrations sets, which allows you access to full use of the service without an expiration and without a renewable subscription.
At any time and without notice, Smarty Ears LLC reserves the right to (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel such Free consumables offer.
3.0 Fee Changes
Smarty Ears LLC, in its sole discretion and at any time, may modify the Subscription fees for the Subscriptions. Any Subscription fee change will become effective at the end of the then-current Billing Cycle.
Smarty Ears LLC will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective.
Your continued use of the Service after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.
Except when required by law, paid Subscription fees are non-refundable.
You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
- Intellectual Property
The Service and its original content, features and functionality are and will remain the exclusive property of Smarty Ears LLC and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Smarty Ears LLC.
- Links To Other Web Sites
Our Service may contain links to third party web sites or services that are not owned or controlled by Smarty Ears LLC
Smarty Ears LLC has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites.
You acknowledge and agree that Smarty Ears LLC shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
- System Requirements
Use of the Service requires one or more compatible devices, and wi-fi access or cellular data service access; separate fees may apply. Your use of the Service may be affected by certain combinations of hardware, software and/or wi-fi access.
We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.
If you wish to terminate your account, you may simply discontinue using the Service.
All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
You agree to defend, indemnify and hold harmless Smarty Ears LLC and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees), resulting from or arising out of a) your use and access of the Service, by you or any person using your account and password, or b) a breach of these Terms.
- Limitation Of Liability
In no event shall Smarty Ears LLC, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
Your use of the Service is at your sole risk. The Service is provided on an “AS IS” and “AS AVAILABLE” basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
Smarty Ears LLC its subsidiaries, affiliates, and its licensors do not warrant that a) the Service will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Service is free of viruses or other harmful components; or d) the results of using the Service will meet your requirements.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
- Governing Law
These Terms shall be governed and construed in accordance with the laws of Texas, United States, without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.
- iTunes Store iOS Apps Terms
By using the Services through Apple’s App Store (“iOS Products”), you agree that the following additional terms apply to your use of our iOS Products:
- 1 These Terms are not a legal agreement with Apple, Inc. (“Apple”). As between Touch Press and Apple, Touch Press (not Apple) is responsible for the iOS Products and the contents thereof.
- 2 The license to use the iOS Products under Section 5 above is limited to use (a) on iPhone, iPod touch, and iPad devices that you or your Organization own or control, separate from and in addition to any specific technical requirements for any iOS Product, and (b) as permitted by the Usage Rules set forth in the App Store Terms of Service.
- 3 Without limiting Section 9 above and solely as between Touch Press and Apple, you acknowledge that: (a) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Products; (b) Touch Press (not Apple) is responsible for addressing any claims of yours or any third party relating to the iOS Products or your possession and/or use of the iOS products, including but not limited to (1) product liability claims, (2) any claim that the iOS Products fail to conform to any applicable legal or regulatory requirement, and (3) claims arising under consumer protection or similar legislation; (c) in the event of any failure of the iOS Products to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iOS Products to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS Products, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Touch Press’s sole responsibility; and (d) in the event of any third party claim that the iOS Products or your possession and use of the iOS Products infringes that third party’s intellectual property rights, Touch Press (not Apple) will be responsible for any investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- 4 Apple and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right
(and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
If you have any questions about these Terms, please contact us.