Last revised: May 11, 2011
Acceptance of Terms
1. License. KIDzOUT has the sole authority and discretion to license to you the Application, which license is also governed by the terms of the Licensed Application End User License Agreement found under "Terms of Service" in the iTunes Store for Applications on Apple platforms and "Terms of Service" in the Android Market on Android platforms. These TOS amend and supplement those agreements. We reserve the right to change, modify, and update the Application at any time for any reason, without notice to you. We reserve the right to refuse service to anyone and to discontinue the KIDzOUT Services at any time. We also reserve the right to deny your access to the Application due to your unprofessional conduct or practices, complaints about you from other Users or members of the public, and other reasons which we consider, at our sole discretion, to be harmful or disruptive.
2. User Signup. We provide the Application for your personal use. You download the Application via the iTunes App Store or Android Market. You are subject to the policies and terms of service, and other related policies and procedures, of the iTunes App Store or Android Market. You are not required to register with us separately in order to download the Application or to use the KIDzOUT Services. We do not charge you for downloading the Application; however, we reserve the right to charge for the Application, or certain features enabled by the Application, at a future date, which we would do by advance written notice to you.
In consideration of your use of the Application, you represent that you are of legal age to agree to these Terms of Service and form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You are responsible for maintaining the confidentiality of your personal information residing in your computer or wireless device (collectively, "User Devices"), and are fully responsible for all activities that occur using your User Devices. You agree to immediately notify us of any unauthorized use of the Application or any other breach of security. We cannot and will not be liable for any loss or damage arising from any unauthorized use of the Application or your User Devices.
3. Your Representations and Covenants. Your use of the Application and KIDzOUT Services is strictly subject to the following code of conduct at all times. By using the Application, you represent and covenant that you will not:
- Transmit files, content, photographs, videos, personal or technical data or any other type of information (collectively, "Content") which is false, inaccurate, misleading, defamatory, or libelous;
- Transmit any Content that you have no rights to, or for which transmission by you would constitute infringement of third party intellectual property rights;
- Transmit identification documents or sensitive financial information of yourself or any other person;
- Transmit any viruses, malicious code, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another's computer or property, or transmit any harmful or illegal technology;
- Bully, intimidate, or harass any User or member of the public;
- Transmit Content that is hateful, threatening, pornographic, or that contains nudity or graphic or gratuitous violence;
- Use the Application to do anything fraudulent, unlawful, misleading, malicious, or discriminatory;
- Engage in any unruly, disruptive, unprofessional, or offensive conduct while using the Application;
- Violate any laws, third party rights, or any of our Policies (as defined below);
- Engage in unlawful multi-level marketing, such as a pyramid scheme, using the Application;
- Transmit unauthorized commercial Content or commercial communications (such as spam) using the Application;
- Collect third party or our content or information, or otherwise access the Application, using automated means (such as harvesting bots, robots, spiders, or scrapers) without permission;
- Do anything that could disable, overburden, or impair the proper working of the Application or KIDzOUT Services, such as a denial of service attack;
- Facilitate or encourage any violations of these TOS; and
- Use our copyrights or trademarks (the KIDzOUT name, the KIDzOUT logo), or any confusingly similar marks (other than as part of your normal use of the Application), without our written permission.
We may remove and/or block transmission of any content or information that you transmit using the Application if we believe it violates the above. We may also, at our sole discretion, with immediate effect and without advance notice, restrict or terminate your access to the Application, upon your breach of any of the above representations and covenants. All judgments concerning the applicability of the above terms to your activity shall be at our sole and exclusive discretion.
4. Usage of the KIDzOUT Services. You acknowledge that KIDzOUT may establish general practices and limits concerning use of the KIDzOUT Services at any time, at our discretion, including without limitation the maximum amount of information that can be submitted by an account, the maximum disk space that will be allotted on our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the KIDzOUT Services in a given period of time. You further acknowledge that we reserve the right to modify these general practices and limits from time to time.
6. Release of Claims. WE PROVIDE THE APPLICATION FOR YOUR PERSONAL USE AND WE DO NOT INTERFERE WITH OR ACCEPT RESPONSIBILITY FOR COMMUNICATIONS AND RELATIONSHIPS BETWEEN USERS. IN THE EVENT YOU HAVE A DISPUTE WITH ANOTHER USER, YOU HEREBY RELEASE US (AND OUR DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE ß1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
7. Intellectual Property Rights. "KIDzOUT", and all other trademarks, service marks, slogans, tag lines, graphics and logos used in connection with KIDzOUT, the Application, or the Site are trademarks or registered trademarks of KIDzOUT, Inc. or its affiliates. Other trademarks, service marks, graphics and logos used in connection with the site or platform may be the trademarks of other third parties. Your use of the Site and the Application in no way grants you any right or license to reproduce or otherwise use any of our trademarks, third-party trademarks, or any content developed by us or by third parties, except for the normal use of such marks as part of your authorized use of the Application.
9. Termination. These TOS are terminable at any time by either party. If you terminate these TOS, you agree to no longer access or use the Application or KIDzOUT Services and to delete all copies of the Application from any device in your possession. Should you choose to re-access the Application in the future, your use will be deemed as your acceptance of the TOS in effect at the time when you re-access the Application.
10. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE OUR SITE AND SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. OUR AGGREGATE LIABILITY ARISING OUT OF THESE TOS OR THE APPLICATION WILL NOT EXCEED TWENTY DOLLARS ($20). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
11. Disclaimer of Warranties. WE ARE PROVIDING THE APPLICATION AND THE SITE TO YOU "AS IS". WE DO NOT GUARANTEE THAT YOUR USE OF THE APPLICATION OR THE SITE WILL BE SAFE OR SECURE. USE OF THE APPLICATION OR THE SITE IS AT YOUR OWN RISK. WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION OR THE SITE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION AND THE SITE, THAT THE FUNCTIONS CONTAINED IN THE APPLICATION OR THE SITE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION OR THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE APPLICATION OR THE SITEWILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE APPLICATION, THE SITE, OR ANY OF OUR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Indemnification. You agree to indemnify, defend and hold harmless, KIDzOUT, Inc., its affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers, to and from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these TOS or of any applicable law by you, or due to or arising out of (i) the data or content you submit, post, transmit, distribute, publicize or otherwise make available through the Application or (ii) any of your actions when using the Application. We reserve the right to assume, at our sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
13. Governing Law. These TOS will be governed by and construed in accordance with the laws of the State of Wyoming, as applied to agreements entered into and to be performed entirely within Wyoming between Wyoming residents, without regard for conflict of laws principles.
14. Venue; Agreement to Exclusive Jurisdiction; No Obligation for User Disputes. You agree that you will resolve any claim, cause of action or dispute you have with us arising out of or relating to these TOS or the use of the Application or KIDzOUT Services exclusively in a state or federal court located in Laramie County, Wyoming. You agree to submit to the personal jurisdiction of the courts located in Laramie County, Wyoming for the purpose of litigating all such claims.
We are not responsible for addressing any disputes between any Users. In the event of a concern, claim or dispute, Users shall communicate directly with the other party in resolving such concern, claim or dispute. In the event we receive complaints about a User, we will investigate the complaint at our sole discretion and may direct the User to respond to the other party directly.
15. Notices. Unless specifically provided otherwise, all notices to us under these TOS must be provided by certified U.S. mail at the sending party's expense. We may provide notice to you by push notification in the Application. Notice sent by mail shall be deemed given three (3) days after the date of mailing. Our address for notices is: P.O. Box 730 Buffalo, WY 82834, Attn: KIDzOUT Legal Department.
17. Amendments. We reserve the right, at our sole discretion, to change, modify or otherwise alter these TOS at any time. You can find the most recent version of these TOS at http://www.kidzout.com/tos.html, with the date of last modification noted above. Such modifications shall become effective immediately upon the posting thereof. Therefore, we encourage you to check the date of these TOS whenever you use the Application or KIDzOUT Services to check if they have been updated. You must review these Terms of Service on a regular basis to keep yourself apprised of any changes. If you do not agree to the revised TOS, your sole recourse is to immediately stop all use of the Application. Your continued use of the Application or KIDzOUT Services following the posting of modifications will constitute your acceptance of the revised TOS. Should you have any questions regarding the use of the Application, please contact us at: firstname.lastname@example.org. None of our employees or agents have the authority to vary any of our Policies or these TOS.
18. Waiver. The failure to act with respect to a breach by the other party or by others does not waive a party's right to act with respect to subsequent or similar breaches.
19. Assignment. You will not transfer any of your rights or obligations under these TOS to anyone else without our consent. All of our rights and obligations hereunder are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
20. Legal Enforcement. We reserve the right to take steps that we believe are reasonably necessary or appropriate to enforce or verify compliance with any part of these TOS. You agree that we have the right without liability to you to disclose any of your personal information to law enforcement authorities, government officials and or a third party as we believe is reasonably necessary or appropriate to enforce or verify compliance with any part of these TOS. In addition, we may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to Users from that jurisdiction, and are consistent with generally accepted international standards. We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating these TOS. This may include sharing information with other companies, lawyers, courts or other government entities. Nothing in these TOS shall prevent us from complying with applicable laws.
21. Third Party Beneficiary Rights. These TOS do not confer any third party beneficiary rights.
22. Survival. The following sections shall survive the termination of these TOS: Sections 3 through 26.
23. Headings. Headings are for reference purposes only and do not limit the extent or scope of the corresponding Section.
24. Severability. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of these TOS shall continue in full force and effect.
25. Entire Agreement. These TOS and all Policies incorporated herein constitute the entire agreement between the parties with respect to the use of the Application, Site and services hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, whether oral or written, with the exception of any additional terms and conditions you are required to accept if you choose to use any of our additional services.
26. Special Provisions Applicable to Users Outside the United States. The following provisions apply to users outside the United States: You consent to having your personal data transferred to and processed in the United States. If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department's list of Specially Designated Nationals you will not engage in commercial activities using the Application.