Terms of Service
HeyKiddo LLC
[v. August 2023]
These Terms of Service constitute
an agreement between User and HeyKiddo. By
downloading, installing, registering to use, accessing and using the
Application (defined below), the User signifies consent to, and agrees to be
bound by, these Terms of Service. These Terms of Service govern all rights and
obligations regarding the use of the Application.
ACKNOWLEDGEMENT
By downloading, installing, registering
to use, accessing and using the Application, you acknowledge and agree that:
1.
No
Healthcare. HeyKiddo
is not a healthcare provider. HeyKiddo does not
provide or render any medical advice and does not engage in any mental health
diagnosis, treatment, or healthcare recommendations of any kind. HeyKiddo does not offer mental health consultations,
therapy sessions, or counseling services. The HeyKiddo™
App and all of its content is designed for general informational purposes only.
Thus, the use of the App (including access to and use of information and
content) does not create and is not intended to create a provider-patient
relationship as defined by state or federal law. Similarly, no therapist-patient,
counselor-patient or any other formal relationship is ever created between any
user of the HeyKiddo™ App and HeyKiddo.
HeyKiddo is not intended to replace or substitute
professional mental health services, or medical treatment. If you are (or
anyone you know is) experiencing mental health concerns, seek assistance from a
qualified mental health professional. In case of an emergency or crisis, contact
applicable emergency services.
2.
Use
of Content. All information and content
contained on, or available through, the App is for general information purposes
only and is not intended or implied to be a substitute for healthcare or
medical advice. HeyKiddo makes no representation and
assumes no responsibility for the accuracy of information or content contained
on, or available through, the App. All such information and content are for
general information purposes only. Users should always seek the advice of a qualified
health care professional with any questions or concerns regarding any individual
needs and any medical conditions. HeyKiddo encourages
all Users to consult with qualified professionals in connection with any
information read or accessed through the App. Most importantly, Users should
never ignore or disregard advice provided by a healthcare professional or delay
seeking medical treatment based upon any information or content available on,
or through, the App.
3.
Specific
Acknowledgement and Consent.
Each of the following are true and
accurate (and each constitute an eligibility requirement for registration to
use the App):
a.
you read and understand and
accept these Terms of Service;
b.
you have the authority to
agree to these Terms of Service and you are 18 years of age or older;
c.
your use is solely for your
personal, private and individual purpose;
d.
you will ensure your name,
contact details and related information inputted into the system (including
without limitation the data provided when a User
registers for an account) are accurate and up to date;
e.
you have the right and
authority to supply any and all data, including personal information about the Child
described below; and
f.
any data you supply,
including personal information will be governed by the Privacy Policy.
4.
No
Endorsement. HeyKiddo
does not recommend, endorse or make any representation about the efficacy,
appropriateness or suitability of any specific tests, practices, products,
procedures, treatments, opinions, healthcare providers or other information
that may be relevant for, or connected with any Child or adult's mental health
or health care. User's interactions with the App are not intended to replace
User's relationship with User's regular health care practitioners or primary
care physician. HEYKIDDO IS NOT RESPONSIBLE NOR LIABLE FOR ANY ADVICE, COURSE
OF TREATMENT, DIAGNOSIS OR ANY OTHER THIRD-PARTY INFORMATION, SERVICE OR PRODUCTS
THAT A USER OBTAINS OR ACCESSES THROUGH THE SERVICE.
If
you are under the age of 18, or if you are not eligible to register and use the
App for any reason, or do not agree to these Terms of Service, you may not
download, install, register for, access or use the Application. Notwithstanding the foregoing, a User may
use the App to engage with the User's Child. Therefore, although the Child may
not register for the App, the Child may use the App alongside the User without
violating these Terms of Service.
Definitions
"App" or "Application" means the software
tool called "HeyKiddo", designed to enable caregiving adults to
anticipate, detect and address social and/or emotional difficulties in the Child
(and teenagers and those with intellectual disabilities) they care for and to
further enable caregiving adults to gain insights to promote wellbeing.
"Child" means a person who is the User's Child,
relative, student or other charge. The term "Child" means and includes one
individual child or multiple children.
"User(s)" means the end user, who has downloaded the
Application and is authorized to access and use the Application.
"Third Party Partner" means any third party with
which HeyKiddo has entered a business relationship to
provide the App in conjunction with Third Party Products.
"Third Party Products" or "Third Party Service" means
any open source and freeware components licensed or utilized by HeyKiddo and any third-party software, tools or other
materials provided with, or incorporated into, or linked to the Application.
USE
OF THE APPLICATION
The Application is provided by download
through an applicable mobile application store. HeyKiddo
hereby grants the User a non-exclusive, non-transferable, non-sub-licensable,
revocable license to use the Application for non-commercial purposes, subject
to these terms.
(1) The User hereby agrees that it will only
use the Application for private, personal and individual uses;
(2)
User merely obtains a
limited, non-exclusive license to use the Application in accordance with these Terms
of Service and within the scope, duration and intended use requirements as
stated herein; and
(3) The User may install and use one object
code copy of the mobile application from either the Apple or Google marketplace
(as made available by HeyKiddo, in its sole discretion)
on a mobile device the User owns or controls.
(4)
HeyKiddo may make changes, impose
limits, and occasionally suspend or terminate the features, functions or certain
aspects of the Application. HeyKiddo may also update
the Application, which may not work properly if the User does not install
updates. HeyKiddo may launch new products, services
and features (with or without a fee) or remove any features or functionality,
from time to time.
Use
Restrictions. User shall not use the
Application for any purposes beyond the scope expressly granted in these Terms
of Service. User shall not at any time, directly or indirectly:
(1) copy,
modify, or create derivative works of the Application in whole or in part;
(2)
rent, lease, lend, sell, license, sublicense, assign, distribute,
publish, publicly display, transfer, or otherwise make available the
Application to anyone;
(3)
reverse engineer, disassemble, decompile, decode, adapt, or
otherwise attempt to derive or gain access to any software component of the Application,
in whole or in part; or alter, modify, enhance, make works derived from the
Application or attempt to generate or access the source code for the
Application (or other tools, software or products), whether by converting,
translating, decompiling, disassembling or merging any part of the Application
with any other software;
(4)
remove any proprietary notices from the Application or change the
name, trademarks, brands or logos embedded in, or used with, the Application;
(5)
permit or allow any damage, interference with, or other harm to HeyKiddo's network, servers, systems, or other
technological devices or any third-party network or system connected thereto;
(6)
use a robot, spider, scraper or other unauthorized automated means
to access HeyKiddo networks, servers, systems or
other technological devices or any third-party network or system connected
thereto;
(7)
use the Application in any manner or for any purpose that
infringes, misappropriates, or otherwise violates any intellectual property
right or other right of any person, or that violates any applicable law;
(8)
interfere with, or circumvent, any feature of the Application,
including any security or access control mechanism; and
(9)
store or transmit material in violation of third-party privacy
rights, use the Application to store or transmit viruses, worms, time bombs,
Trojan horses and other harmful or malicious code, files, scripts, agents or
programs or attempt to gain unauthorized access to the Application or its
related systems or networks.
(10)Further, User
represents that User is not located in a country that is subject to a U.S.
Government embargo, or that has been designated by the U.S. Government as a
"terrorist supporting" country; and User is not listed on any U.S. Government
list of prohibited or restricted parties.
User Responsibility and Registration. To access and use the App, the User is required
to register for an account. The User will be solely responsible for the
confidentiality of the login IDs and passwords. User is further solely
responsible and liable for (a) its use of the App; (b) all Content (as defined
below) it makes available, distributes or transmits through the Application;
(c) creating and maintaining accurate profile(s) solely of its Child; and (c)
compliance with all applicable laws. If the User believes that User's account
is no longer secure, then the User must immediately notify HeyKiddo
at suppport@hey-kiddo.com.
Connection to the Application. User shall be responsible, at its own expense, for procuring and
maintaining the telecommunications, networks, peripherals and other items
necessary to access the Application. User shall be solely responsible for all
aspects of Internet use and connectivity. As such, the Internet connection
required to use the Application, and any associated charges (e.g., mobile data
expenses) incurred by the use of the Application are the User's exclusive
responsibility and made solely at the User's expense. Transmitting and
receiving real-time updates to and from the Application, requires an online
connection between a cellular device and the Internet.
CONTENT AND INFORMATION
Content. Users may have the ability to upload, submit and post
information and content within the Application, such as information supplied in
response to questionnaires, information about a Child's emotional state, and
data about a Child's behavior, which content may be in any available format,
including any data, video, audio, photographs, location, images, text, replies,
comments, graphics, geo-data, and other materials or information ("Content").
Content can include, for example, a Child's academic schedule, interdisciplinary
meetings, emotional progress, and similar information.
By providing
Content, User represents and warrants that it is the owner
of the Content, or has the necessary licenses, rights, consents, and
permissions to submit the Content and to license to HeyKiddo
the right use and distribute the Content as described in these Terms of Service.
In particular, User represents and warrants that it is authorized to provide
all Content pertaining to Kiddos and that it is not violating any law or right
of any third party in doing so.
User, and not
HeyKiddo, is solely and completely responsible and
liable for all Content it submits or uses with the Application. Thus, the User
assumes sole responsibility for any Content and User alone is liable for the
consequences when User submits and/or posts Content. By providing Content in or
through the App, User grants HeyKiddo a worldwide,
non-exclusive, irrevocable, royalty-free, fully paid right and license (with
the right to sublicense) to host, store, transfer, display, perform, reproduce,
modify for the purpose of formatting for display, and distribute the Content,
in whole or in part, in any media formats and through any media channels now
known or hereafter developed.
As of the
Effective Date of these Terms of Service, the App does not provide a mechanism
for any User to download Content or any other information supplied by HeyKiddo.
Content Limitations: Users may not use the Application in any
manner (or add, submit, or transmit any Content in or to the App) that
contains, posts, shares, or transmits any material that:
(1)
is false, misleading,
libelous, private, or other disparaging content;
(2)
is improper or unlawful (or for
any illegal purpose or in violation of any local, state, national, or
international law);
(3)
is defamatory, offensive, obscene,
or otherwise objectionable or causes offense based upon one's race, religion,
ethnicity, gender, sexual orientation, nationality or disability (or harasses,
threatens, demeans, embarrasses, bullies, or otherwise harms anyone);
(4)
breaches the confidence or
privacy of any third-party's rights;
(5)
violates copyright, trademark,
patent, trade secret, moral right, privacy right, right of publicity, or any
other intellectual property or proprietary right;
(6)
has the purpose, intent, or
effect of harming minors, attempting to harm minors or contains sexually
explicit material or contains violence;
(7)
discloses any personally
identifiable information about a minor in any public forum or performs any
fraudulent activity including impersonating any person or entity, claiming a
false affiliation, accessing any other account without permission, or
falsifying User's or Child's age or date of birth (or slanders, defames,
libels, or invades the right of privacy, publicity, or other property rights of
any other person);
(8)
is misleading or
misrepresents the HeyKiddo's products or services; and/or
(9)
causes damage to HeyKiddo or brings HeyKiddo into
disrepute.
APP STRUCTURE AND ACCESS
Third-Party Products. The Application may contain or link to Third Party Products
under license to HeyKiddo and, in certain situations.
Third Party Products may require notices to other licensors and/or compliance
with additional Terms of Service. If applicable, such required Third Party
Product notices and/or additional terms are hereby incorporated by reference
into these Terms of Service. Further, HeyKiddo
may provide tools through the App that enable User to export
information, including Content, to third-party services. By using one of these
tools, User agrees that HeyKiddo may transfer that information to the applicable Third Party Service. Third Party Services are not under HeyKiddo's control, and, to the fullest extent permitted by
law, HeyKiddo is not responsible for any Third Party Service's use of User's exported information.
Suspension. HeyKiddo may temporarily suspend User's access to any
portion or all of the Application if: (i) HeyKiddo reasonably determines that (A) there is a threat
or attack on the Application; (B) User's use of the Application disrupts or
poses a security risk to the Application or to any other User or vendor of HeyKiddo; (C) User is using the Application for fraudulent
or illegal activities; (D) subject to applicable law, User has ceased to
continue its business in the ordinary course, made an assignment for the
benefit of creditors or similar disposition of its assets, or become the
subject of any bankruptcy, reorganization, liquidation, dissolution, or similar
proceeding; or (E) the provision of the Application to User is prohibited by
applicable law; (ii) any vendor of HeyKiddo has
suspended or terminated HeyKiddo access to or use of
any Third Party Services required to enable User to access the Application; or
(iii) User's failure to pay fees when due. HeyKiddo
will have no liability for any damage, liabilities, losses (including any loss
of data or profits), or any other consequences that User may incur as a result
of a suspension. Although HeyKiddo will not review Content, as described herein, HeyKiddo may, however, at any time and without prior
notice, screen, remove, edit, or block any User Content that in our sole
judgment violates these Terms or Conditions or is otherwise objectionable.
Push
Notifications.
When User installs the App, User agrees to receive
push notifications, which are messages a software application sends to Users on
User's mobile device when the app is not on. User can turn off notifications by
visiting User's mobile device's "settings" page.
Emails. Subject to the Privacy Policy, HeyKiddo
may send Users emails concerning its products and services, as well as those of
third parties. User may opt out of promotional emails by following the
unsubscribe instructions in the promotional email itself.
Apple. If the Users uses the Application on an Apple device, then the
User agrees and acknowledge that:
(1)
Apple, Inc. bears no duties or obligations to User under the
Terms, including, but not limited to, any obligation to furnish User with
maintenance and support;
(2)
User will have no claims, and User waives any and all rights and
causes of action against Apple with respect to the Application, including, but
not limited to claims related to maintenance and support, intellectual property
infringement, liability, consumer protection, or regulatory or legal
conformance;
(3)
Apple and Apple's subsidiaries are third party beneficiaries of
the Terms. Upon User's acceptance of the Terms, Apple will have the right (and
will be deemed to have accepted the right) to enforce these Terms against User
as a third-party beneficiary thereof.
Maintenance, Support, Modification. HeyKiddo has no obligation to provide
any type or level of support for the Application. To the extent HeyKiddo offers support, it will do so subject to published
policies, if any. HeyKiddo reserves the right to modify
or discontinue the App at any time (including by limiting or discontinuing any
features or the functionality of the App), temporarily or permanently, with or
without notice to Users. HeyKiddo will have no
liability for any change to the App or any suspension or termination of User's
access to or use of the App.
Monitoring Content. HeyKiddo
does not control and does not have any obligation to monitor User Content or
any content made available by third parties. User acknowledges and agrees that HeyKiddo reserves the right to, and may from time to time,
monitor any and all information transmitted or received through the App for
operational and other purposes. If at any time HeyKiddo
chooses to monitor the Content, HeyKiddo still
assumes no responsibility or liability for content or any loss or damage
incurred as a result of the use of Content. During monitoring, information may
be examined, recorded, copied, and used in accordance with the HeyKiddo Privacy Policy.
Automated Decision Making. The
App may contain technology that includes the ability to track usage, make
decisions, predict behavior, and draw certain analysis from User's responses
and navigation within the App. These automated decisions and profiling do not
contain any legally significant effects and do not involve the denial of or
approval for any services. However, should any User wish to opt-out of this
type of technology, the User must submit a request to support@hey-kiddo.com and
HeyKiddo will eliminate the use of such technology
for that User, which may include deleting the User's registration and
precluding access to and use of the App.
TERM AND TERMINATION.
Commencement: These Terms of Service shall
begin on the first date on which the User downloads, installs, accesses,
registers or uses the Application.
Termination
Period: These Terms of Service will remain in
effect unless and until the Application is terminated, as described below.
Cancellation
or Termination of Application: The User may terminate use of the
Application at any time and for whatever reason. User is not obligated to
advise HeyKiddo of such termination. However, if User
would also like for HeyKiddo to delete User's HeyKiddo account and User's personal information contained
in the account, please submit a request to support@hey-kiddo.com and provide User's
name, the username and the email associated with User's HeyKiddo
account. On receiving such a request, HeyKiddo will
use reasonable efforts to delete such information and will do so in accordance
with HeyKiddo's Privacy Policy, noting that information
may not be deleted immediately from any back-up systems. Notwithstanding the
foregoing, if Subscription Fees are not paid for more than ninety (90) days,
the account will be deemed inactive and all registrations and profiles will be
deleted. For more information, please read the Privacy Policy.
Termination by HeyKiddo: HeyKiddo retains the right to block
User's access to and use of the Application and discontinue use, at any time
and for any reason HeyKiddo deems appropriate, at its
sole and absolute discretion. Thus, HeyKiddo may terminate
these Terms of Service immediately without notice to User if: (i) User fails to comply with any term or condition of these
Terms of Service; and/or (ii) User is liquidated or dissolved, or becomes
insolvent, or suffers a receiver or trustee to be appointed for it, or makes an
assignment for the benefit of creditors or institutes or has instituted against
it any proceeding under any law relating to bankruptcy or insolvency or the
reorganization or relief of debtors; and/or (iii) the agreement between User
and HeyKiddo has terminated or been cancelled, such
as for failure to pay fees when due.
Effect of Termination. Upon termination of these Terms of Service for any reason, User's
right to access and use the Application shall be terminated and revoked and User
shall immediately discontinue use of the Application and User shall delete,
destroy, or return all copies of network passwords, links and other materials
providing access to the Application. Upon termination or cancellation of these Terms
of Service for any reason HeyKiddo will cease
performing any actions in connection with the Application such as support,
hosting, or access to the Application for, or to, the User. The sections of these Terms of Service pertaining to Termination, Ownership,
Warranties, Disclaimers and Limitation of Liability, and General Provisions
shall survive any termination of these Terms of Service.
OWNERSHIP AND CONFIDENTIALITY
HeyKiddo
Ownership.
HeyKiddo is the owner or licensee of all intellectual
property rights in and to the Application and all derivative works thereof,
including, without limitation all copyrights, trade secrets, patents, and
trademarks. User does not acquire any right, title or interest in or to the
Application except in accordance with these Terms of Service. HeyKiddo (or its licensors) shall hold all title, ownership
rights, and intellectual property rights to any modifications, updates, copies,
translations, improvements, adaptations or incorporations of the Application. For
avoidance of doubt, HeyKiddo owns all right, title
and interest in and to all visual interfaces, graphics, designs, compilations,
information, data, computer code (including source code or object code),
products, software, services, and all other elements of the App provided by HeyKiddo. HeyKiddo reserves all
rights not granted expressly in these Terms of Service.
User
Information: The
collection, maintenance and use of all personally identifiable and related
information about, or in connection with, Users and Child shall be governed by
the HeyKiddo's Privacy Policy. User
warrants that its collection of all data pertaining to any User is, and shall
remain, in accordance with all laws and that User has, and will continue to
have, all right to collect, maintain and use that data. The collection,
maintenance and use of data as described in this paragraph means and includes,
without limitation, obtaining data, importing data into the Application,
exporting data from the Application, identifying and transmitting information
about User and Child.
FEES AND PAYMENT
Fees. The
fees for access to and use of the App shall be in the amount set forth on the
form when User downloads the App from the applicable store, which may be
monthly, annually ("Subscription Fees")
without offset or deduction. No refunds will be issued. All fees shall be
payable in U.S. dollars. Users will be responsible for payment of any
additional fees or expenses imposed by User's payment card provider or the
payment processor. In the event a User has acquired the App through a Third Party Partner of HeyKiddo,
the User must insert the applicable code at the time of download to avail
itself of the discounts and other fee arrangements between HeyKiddo
and the Third Party Partner.
Payment. By providing payment information, the User
authorizes HeyKiddo to supply the information to the
payment processor and for the payment processor to charge the User for all
amounts due and payable immediately upon download of the App and either every
thirty (30) days or annually thereafter as applicable, with no additional
notice to or consent from the User. HeyKiddo also
reserves the right at any time to change its fees and payment procedures,
including its payment options and terms, either immediately upon posting
updated terms of service or by other notice to users generally. The User agrees
to immediately notify HeyKiddo (and the payment
processor, if applicable) of any change in billing address or other information
and the User recognizes that failure to maintain accurate payment information
may result in a loss of access to and use of the App (including all of the
Content and other information).
Payment
Questions. If User has any question about any fees or charges
to User's payment card, please contact us at support@hey-kiddo.com. We have the
sole discretion to determine how billing disputes between us will be resolved.
Payment Processor. Except as otherwise determined between HeyKiddo and a Third Party
Partner, all transactions will be completed through the use of a third-party
payment processor (such as Stripe), which is selected by HeyKiddo.
Users must submit a valid payment card (debit, credit) for use with the
applicable third-party payment processor. HeyKiddo
does not operate, own, or control the payment processor; thus, the use of a payment
card is governed by the agreement between the User and the payment processor
and/or the payment processor, if any. HeyKiddo may
change the third party processor from time to time
with or without notice to the User; provided, however, Users consent to the
transfer of the data for use by a different third party processor (as detailed
more fully in the Privacy Policy).
Taxes. If any purchase obligates HeyKiddo to collect a sales tax, use tax, or any other
equivalent tax ("Sales Tax"), HeyKiddo will collect
Sales Tax in addition to the Subscription Fees. If any User fails to remit the applicable
Sales Tax to HeyKiddo, the User will be responsible
for the payment of the Sales Tax (and any related penalties or interest) to the
appropriate tax authority and will indemnify HeyKiddo
for any liability or expense HeyKiddo may incur in
connection with the payment of Sales Taxes.
WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY.
THE APPLICATION AND ALL USE THEREOF IS ON AN "AS IS" AND "AS
AVAILABLE" BASIS. HEYKIDDO HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS,
EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATION, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
PURPOSE, FEATURES, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY,
PERFORMANCE, SECURITY OR ACCURACY. User assumes responsibility for the
selection of the Application to achieve the User's intended results, and for
the use and results obtained from the Application. HeyKiddo
is not liable for any damage to or loss of any programs, data, or other
information or any non-HeyKiddo-branded product,
embedded software or software not covered by this warranty.
Moreover, HeyKiddo does not warrant that
the App will operate in an uninterrupted or error-free manner, or that it will
always be available or free from all harmful components, or that it is safe,
secured from unauthorized access, immune from damages, free of malfunctions,
bugs or failures, including, but not limited to hardware failures, software
failures and software communication failures. HeyKiddo
does not disclaim any warranty or other right that HeyKiddo
is prohibited from disclaiming under applicable law.
Limitation of Liability. HEYKIDDO AND ITS AFFILIATES, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS, SUBSIDIARIES, DIVISIONS, SUCCESSORS, ASSIGNS, SHALL NOT BE LIABLE, REGARDLESS OF CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION, WHETEHER IN CONTRACT OR IN TORT, FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES OF ANY NATURE OR KIND WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF OR RESULTING FROM USE OF THE APPLICATION LOST OR CORRUPTED DATA OR THIRD PARTY DATA, LOST PROFITS OR LOST GOODWILL, FAILURE TO REALIZE SAVINGS OR FOR ANY CLAIM OR DEMAND AGAINST THE USER BY ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED (OR KNOWS OF OR SHOULD HAVE KNOWN OF) THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR IN ANY OTHER FORM OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE APP, OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE APP, OR FROM ANY FAULT, OR ERROR MADE BY HEYKIDDO'S STAFF OR ANYONE ACTING ON ITS BEHALF, OR FROM USER'S RELIANCE ON THE CONTENT OF THE APPLICATION OR FROM ANY COMMUNICATION WITH THE APPLICATION, OR WITH OTHER USERS ON OR THROUGH THE APPLICATION, OR FROM ANY DENIAL OR CANCELLATION OF USER'S ACCOUNT, OR FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF USER'S CONTENT. IN ANY EVENT, USER'S SOLE REMEDY WILL BE LIMITED TO CORRECTING SUCH ERRORS, OR MALFUNCTIONS, AND IN LIGHT OF THE RELEVANT CIRCUMSTANCES.
THE
AGGREGATE LIABILITY OF THE HEYKIDDO ENTITIES TO USER FOR ALL CLAIMS ARISING OUT
OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE
OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS
LIMITED TO THE GREATER OF: (a) THE AMOUNT USER HAVE PAID TO HEYKIDDO FOR ACCESS
TO AND USE OF THE APP IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE
GIVING RISE TO THE CLAIM AND (b) US$100.
INDEMNITY.
Indemnity. User shall indemnify and save
harmless, to the extent permitted by state statute, HeyKiddo
from and against any and all losses, damages, expenses or claims of any nature,
whatsoever, HeyKiddo may suffer or incur as a result
of User's Content and/or any breach by User of any provision of these Terms of
Service. This provision shall survive the termination of these Terms of Service
for any reason. We reserve the right, at our own
expense, to assume the exclusive defense and control of any matter otherwise
subject to indemnification by User (without limiting User's indemnification
obligations with respect to that matter), and in that case, User agree to
cooperate with our defense of those claims. We reserve the right to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by User (without limiting User's indemnification obligations)
and in that case User agrees to cooperate in the defense of those claims.
Infringement Indemnity. HeyKiddo
shall indemnify, defend or, at its option, settle any claim or suit against User
arising from a claim that the Application infringes any patent, trademark,
copyright or trade secret, and HeyKiddo shall pay any
final judgment entered against User in any such proceeding; provided HeyKiddo has sole control of such defense and/or
settlement, and User promptly notifies HeyKiddo and
provides HeyKiddo with reasonable assistance. If any
part of the Application is, or becomes, the subject of any such proceeding (or
is adjudicated to infringe), HeyKiddo may, at its
expense and option, do one of the following things: (i)
procure for User the right to use the Application; (ii) replace the Application
with other suitable software or programs; (iii) modify the Application to make
it non-infringing; or (iv) if none of the foregoing are commercially
reasonable, terminate these Terms of Service. Notwithstanding anything else
herein to the contrary, HeyKiddo shall have no
obligations under this section with respect to any claim to the extent it is
based upon the combination, operation or use of the Application with software
or hardware other than as specified by HeyKiddo, if
such infringement would have been avoided in the absence of such combination,
operation or use. This infringement indemnity does not apply to any Third Party Products.
GENERAL
PROVISIONS.
Entire
Agreement. The Terms of Service contained herein comprise the entire
agreement and understanding between HeyKiddo and User
and neither is bound by any representation or inducements not specifically set
forth herein. These Terms of Service supersedes any prior representations,
discussion, communications or presentations related to the Application. All
other agreements existing by and between the parties on or before the Effective
Date are hereby deleted in their entirety. All Users recognize and agree that
these Terms of Service apply to the Application and, therefore, different or
additional terms and conditions may apply to the HeyKiddo
website, HeyKiddo™ Huddle, research studies, and
other HeyKiddo™ products and services.
Severability,
Modification and Waiver. If any portion of these Terms of
Service is held to be void, invalid or otherwise unenforceable, in whole or
part, the remaining portions of these Terms of Service shall remain in effect. These
Terms of Service may be modified or amended by HeyKiddo
at any time and shall be effective upon the earliest of User's receipt of
notice or publishing of the updated Terms of Service. Disputes arising under
these Terms of Service will be resolved in accordance with the version of these
Terms of Service that were in effect at the time the dispute arose. A party's
failure to exercise any rights herein shall not constitute or be deemed a
waiver or forfeiture of such rights. If a party wishes to waive its rights
hereunder, it must provide written notification of its rights to the other
party.
Assignment. Except in the event of HeyKiddo's merger or sale of substantially all of its
assets or voting securities (or other similar transactions), neither these Terms
of Service nor any of the rights or duties hereunder may be assigned or
otherwise transferred by either party without the other party's prior written
consent. User may not assign or transfer these Terms or User's rights under
these Terms, in whole or in part, by operation of law or otherwise, without our
prior written consent. Any act that is inconsistent with the terms of this
section shall be null and void.
Notice.
All notices required hereunder will be in writing and will be deemed to have
been given when delivered by overnight courier or by electronic transmission
with confirmed receipt of delivery, and/or three (3) days after mailing by
certified or registered mail, postage prepaid, return receipt requested. All
such communications to the User should be addressed to the address of the
respective party set forth in the registration and if to HeyKiddo
to 8 The Green STE R, Dover, DE 19901.
Force
Majeure. Neither party shall be liable for failure to fulfill its
obligations under these Terms of Service (other than a failure to pay money) if
that failure is caused, directly or indirectly, by reasons beyond its
reasonable control, including flood, fire, civil disorder, government actions,
war, terrorism, embargoes, labor disputes/strikes or other natural calamity or
act of God.
Governing
Law. These Terms of Service shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without reference
to its choice of law rules.
No Legal Relationship. These
Terms of Service and User's use of the Application, including the submission of
Content, do not, and shall not be construed as creating any relationship,
partnership, joint venture, employer-employee, agency, or franchisor-franchisee
relationship in any way and of any kind between the parties hereto.
Arbitration.
The User agrees to submit any and all disputes arising out of or related to the
use of the Application to binding arbitration. To the maximum extent permitted
by applicable law, the User and HeyKiddo agree that
any disputes arising out of or related to User's use of the Application will be
resolved by binding arbitration pursuant to the Federal Arbitration Act. BY
ACCEPTING THESE TERMS, USERS WAIVE THE RIGHT TO A TRIAL BY JURY OR TO
PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. EACH USER AGREES
TO GIVE UP USER'S RIGHT TO GO TO COURT to assert or defend rights under this
agreement (except for matters that may be taken to small claims court). All
rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
User AND HEYKIDDO AGREE THAT EACH MAY BRING CLAIMS
AGAINST THE OTHER ONLY IN USER'S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF
OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further,
unless both User and HeyKiddo agree otherwise, the
arbitrator may not consolidate more than one person's claims and may not
otherwise preside over any form of a representative or class proceeding.