SAFERKID TERMS OF SERVICE
Last Modified: December 23, 2019
Section 1. General
Welcome to SaferKid!
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “DISPUTE RESOLUTION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “DISPUTE RESOLUTION” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND SAFERKID WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF, CLASS MEMBER OR PRIVATE ATTORNEY GENERAL IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Section 2. Acceptance of and Agreement to Terms
You may use the Services only if you are not barred from using the Services under applicable law. By using the Services, you represent and warrant that you are of legal age to form a binding contract with SaferKid and meet all of the foregoing eligibility requirements; provided, that if you under the age of 13 and are using the Child App on behalf of the Parent App, the user of the Parent App acknowledges and accepts these terms on behalf of the user of the Child App. If you do not meet all of these requirements, you must not access or use the Services. If you access our Services, you are agreeing to these Terms.
We do not represent that our Services are governed by or operated in accordance with the laws of other nations, or that our Services, or any portion of them, is appropriate or available for use in any particular location. If you choose to access or Services, you do so at your own risk, and you are responsible for complying with all local laws, rules and regulations.
We have technical, administrative and physical safeguards in place to help protect against unauthorized access to, use and disclosure of the PII and other information we maintain. Access to this information is authorized only for those who have a business need for such access.
Our system automatically records information created by any use of the Services. That information or Log Data (as defined below) may include details such as the user’s Internet protocol address, browser type, operating system, the referring web page, pages visited, location, your mobile carrier, device and application IDs, search terms and cookie information. We receive Log Data when users interact with our Services. Such interaction may occur when users visit, sign into, or interact with our Services, our email notifications. We use Log Data to provide our Services and Content and to measure, customize and improve our Services and the Content.
We will do our best to keep the PII data we maintain secure. However, no program is totally secure. Therefore, we cannot guarantee that our safeguards will prevent every attempt at unauthorized access or use, or the disclosure of any PII. If you become aware of a security breach, please notify us immediately at firstname.lastname@example.org
Section 4. Changes to Terms or Services
We may revise and update these Terms from time to time in our sole discretion. All changes are effective within fifteen (15) days following either our dispatch of a notice to you or our posting of the revised and/or updated Terms on the Services and apply to all access to and use of the Site thereafter. However, any changes to the dispute resolution provisions set out in the “Dispute Resolution” section below will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Services.
Your continued use of the Services following the posting of these revised Terms means that you accept and agree to the changes.
Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, in our sole discretion.
Section 5. Accessing the Site and Account Security
We reserve the right to withdraw or amend the Services or material we provide on the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users.
You are responsible for both:
- Making all arrangements necessary for you to have access to the Services; and
- Ensuring that all persons who access the Services through your internet connection are aware of these Terms and comply with them.
Section 6. Using Our Services
Via the Services, you as a parent or legal guardian of a child under the age of 18 (your “Child”) can elect certain types of features with respect to your monitoring of your Child’s activities on his or her mobile device (each a “Target Device”), including alerts letting you know what applications your Child currently has or new applications your Child installs on the Target Device (“SaferAlert”), screen-time management and content blocking (“Parent Superpowers”), text message monitoring, web browsing history, phone call history and, on iOS only, phone contacts monitoring (collectively, “SaferText”). You can also review the risk factors SaferKid has identified for applications flagged through SaferAlert and tips about how to talk to your child about those risks. SaferKid leaves the parenting decisions about how your Child uses those applications to you. By downloading and installing the Services on the Target Device or configuring the Target Device to communicate with the Services, as applicable, you represent and warrant:
- You are the parent or legal guardian of the Child user of the Target Device;
- You will only install and use the Services on and in connection only with mobile devices that you own;
- You consent to SaferKid’s accessing the Target Devices for the purpose of providing you with SaferAlert, Parent Superpowers and/or SaferText; and
Section 7. Content and Content Rights
For purposes of these Terms, “Content” means the features, functionality and contents of the Services (including but not limited to (i) all text, graphics, images, music, software, audio, video, and the design, selection, and arrangement thereof, works of authorship of any kind and information or other materials that are posted, generated, provided or otherwise made available through the Services and (ii) all services, software, algorithms, designs, objects, documentation, know-how, code, data, art, graphics, animation, photographs, images, sound effects, audio and/or audio-visual elements, downloadable materials, look-and-feel, design, layout, organization, presentation, user interface, navigation and stylistic convention of the Site and our Apps).
SaferKid and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by U.S. and international copyright, trademark, patent, moral rights, trade secret, and other intellectual property or proprietary rights laws. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
All trademarks, trade names, copyrights, logos and service-marks (collectively, the “Marks”) related to our intellectual property are our exclusive property. Unauthorized use of any of the Marks or of any word, term, name or symbol that is likely to cause confusion or mistake with respect to the user’s connection or association with us, or our approval or sponsorship of the user’s products or services, or that is likely to dilute any of our Marks is strictly prohibited by law. All third party trade names, trademarks, logos and service marks, if any, that appear on the Services are the property of their respective owners.
You do not acquire any ownership interests in any Content on the Services or the Marks by accessing, browsing or otherwise using the Services. You may not copy, reproduce, modify, distribute, transmit, display, perform, publish or otherwise exploit, through any means or media, any of the Marks or the Content on the Services.
These Terms permit you to use the Services for your personal, non-commercial use only. Subject to your compliance with these Terms, SaferKid grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Services, except as follows:
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials;
- You may store files that are automatically cached by your Web browser for display enhancement purposes;
- You may print or download one copy of a reasonable number of pages of the Site for your own personal, non-commercial use and not for further reproduction, publication, or distribution; and
- You may download a single copy of our Apps to your computer or mobile device solely for the personal, non-commercial use of you or the authorized user, provided you agree to be bound by our end user license agreement for such Apps.
You must not:
- Modify copies of any materials from any Service;
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from any Service;
- Copy, modify or create derivative works based on the Apps;
- Distribute, transfer, sublicense, lease, lend or rent the Site or any Apps to any third party;
- Reverse engineer, decompile or disassemble the Site or any Apps; or
- Make the functionality of the Apps available to multiple users through any means.
You must not access or use for any commercial purposes any part of the Services.
If you wish to make any use of material on the Services other than that set out in this Section, please address your request to: email@example.com.
If you print, copy, modify, download, or otherwise use or provide any other person or entity with access to any part of the Services in breach of these Terms, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Services or any Content is transferred to you, and all rights not expressly granted herein are reserved by SaferKid. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
SaferKid’s name, the terms SaferKid, SaferText, Parental Superpowers, SaferKid’s logo, the SaferText logo, Parental Superpowers logo and all related names, logos, product and service names, designs and slogans are trademarks of SaferKid or its affiliates or licensors. You must not use such marks without the prior written permission of SaferKid.
Section 8. Rights and Terms for Apps and Mobile Networks
Subject to your compliance with these Terms, SaferKid grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the Apps on any mobile device or computer that you own or control and to run such copy of the Apps solely for your own personal, non-commercial purposes. SaferKid reserves all rights in and to the Apps not expressly granted to you under these Terms.
When you access the Services through a mobile network, your network or roaming provider’s messaging, data and other rates and fees may apply. Downloading, installing or using certain Services may be prohibited or restricted by your network provider and not all Services may work with your network provider or device.
You agree to comply with all U.S. and foreign export laws and regulations to ensure that the Apps and any technical data related thereto and any direct product thereof is not exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Apps you represent and warrant that: (i) you are 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties or end uses.
Section 9. General Prohibitions and SaferKid’s Enforcement Rights
You may use the Services only for lawful purposes and in accordance with these Terms. You agree not to do any of the following:
- Use, display, mirror or frame the Services or any individual element within the Services, SaferKid’s name, any SaferKid trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without SaferKid’s express prior written consent;
- Access, tamper with, or use non-public areas of the Services, SaferKid’s computer systems, or the technical delivery systems of SaferKid’s providers;
- Probe, scan or test the vulnerability of any SaferKid system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by SaferKid or any of SaferKid’s providers or any other third party (including another user) to protect the Services or Content;
- Access, monitor, download or copy, or permit another person or entity to access, monitor, download or copy the Services or Content through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, scrapers, data mining tools or other automated means or manual process) without SaferKid’s express prior written permission;
- Use any meta tags or other hidden text or metadata utilizing a SaferKid trademark, logo URL or product name without SaferKid’s express prior written consent;
- Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not expressly permitted by these Terms;
- Copy, decipher, decompile, disassemble, reverse-engineer, attempt to derive the source code of, modify or create derivative works of any of the software used to provide the Services or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Impersonate or misrepresent SaferKid, a SaferKid employee, another user, any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing) or your affiliation with any person or entity;
- Violate any applicable law or regulation;
- Engage in any other conduct that could disable, overburden, damage, or impair the Services, or that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by SaferKid, may harm SaferKid or users of the Services, or expose them to liability;
- Attempt any of the foregoing or otherwise attempt to interfere with the proper working of the Services; or
- Encourage or enable any other individual to do any of the foregoing.
Section 10. Purchases
There is Content on this Site or an App which is available only if you create an Account. When any of the Services require you to open an Account or otherwise provide user or registration information, including any username and password (“User Information”), you must complete the registration process by providing us with complete, truthful and accurate information. When you create an Account, you alone are responsible for maintaining the strict confidentiality of any username and password relied upon to gain access to your Account, and for the use by you and any other person or entity that accesses the Services by use of your User Information, whether or not that access was authorized by you. You must notify us immediately of any suspected or actual unauthorized use of your Account or User Information, and of any and all other security breaches.
Certain features of the Services (the “Paid Features”) may require you to purchase a recurring Subscription (“Subscription”).
When you purchase a Paid Feature or a Subscription (each, a “Transaction”), you expressly authorize us (or our third party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including but not limited to your credit card number, the expiration date of your credit card and your address(es) for billing and delivery (such information, “Payment Information”). You represent and warrant that the Payment Information is accurate, that you are authorized and have the legal right to use all payment method(s) represented by any such Payment Information and that you will notify us of changes to the Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method, or if applicable, your account with the App Provider, for the type of Transaction you have selected (plus any applicable taxes and other charges disclosed at the time of purchase). We reserve the right to utilize third party credit card updating services to obtain current expiration dates on credit cards.
ALL PURCHASES ARE FINAL. YOU WILL NOT BE ABLE TO CANCEL A PURCHASE AND/OR RECEIVE A REFUND OF YOUR PURCHASE PRICE AT ANY TIME. If something unexpected happens in the course of fulfilling your order, we reserve the right to cancel your order for any reason, and if we cancel your order we’ll refund any payment you may already have remitted to us.
You may purchase a Subscription to access certain features of the Services. If you purchase a Subscription, you agree that your Subscription will be automatically renewed (subject to the following paragraph “Cancelling Subscriptions”) and, unless you cancel your Subscription, you authorize us to charge your payment method for each renewal term at the then-current rate, plus any applicable taxes and other charges disclosed at the time of purchase (“Subscription Fee”) using the Payment Information you have provided or through your account with the applicable App Provider. The period of auto-renewal will be the same as your initial Subscription period unless otherwise disclosed to you at the time of sale. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or SaferKid. We may also periodically authorize your payment method in anticipation of applicable fees or related charges. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or the Subscription in accordance with these Terms. From time to time, we may offer a free trial subscription for a Service. If you register for a free trial subscription, we will begin to bill your account when the free trial subscription expires, unless you cancel your subscription before that time.
You may cancel your Subscription at any time. PLEASE NOTE, HOWEVER, THAT ALL SALES ARE FINAL. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can either (i) email us at firstname.lastname@example.org and follow any instructions, if any, we provide to you in response to your cancellation request, or (ii) initiate a cancellation through your Account settings within the Services by sending a cancellation request through the HELP option. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your cancellation will be effective immediately, but SaferKid will allow you to access the Subscription features until the most recently paid-up Subscription period ends, and then will terminate your access. Cancelling your Subscription won’t cancel your Account. See the “Termination” section below for information on terminating your Account.
Section 11. Reliance on Information Posted
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.
The Services may include content provided by third parties, including materials provided by third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, other than the content provided by SaferKid, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of SaferKid. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
The Services may contain links to third-party websites or resources, which are provided for your convenience only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
Section 12. Termination
Upon any termination, discontinuation or cancellation of Services or your Account, the following provisions will survive: “Content and Content Rights,” “Termination,” Warranty Disclaimers,” “Indemnity,” “Limitation of Liability,” “Dispute Resolution,” “General Terms” and “Feedback.”
Section 13. Geographic Restriction
We administer, control and operate the Site from our location in Hawaii in the U.S. The Services and Content are accessible world-wide. However, some of its features or functions may not be available or appropriate for use outside of the U.S. and/or may not be available to all persons or in all geographic locations. We make no representation that our Services and/or Content are appropriate or authorized for use in all countries, states, provinces, counties, localities or other jurisdictions. Your access and use of the Services and Content may not be legal in your jurisdiction. If you choose to access, browse or use the Services and/or Content, you do so on your own initiative and at your own risk, and you are responsible for compliance with all applicable laws and other restrictions, if, and to the full extent that, such laws and restrictions are applicable.
The Services and Content provide information of a general nature only. You are responsible for determining whether it applies to your specific situation. We specifically disclaim any liability concerning any action that any individual may take based on any information or guidance provided by our Services and Content.
Section 14. Warranty Disclaimers
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SAFERKID NOR ANY PERSON OR ENTITY ASSOCIATED WITH SAFERKID MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE UPTIME OR UNINTERRUPTED ACCESS, THE AVAILABILITY, ACCURACY OR USEFULNESS OF ANY OR ALL CONTENTS, OR THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER SAFERKID NOR ANYONE ASSOCIATED WITH SAFERKID REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER(S) THAT MAKE(S) IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, SAFERKID HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You acknowledge and agree that there are risks inherent to transmitting information over and storing information on the Internet and that we are not responsible for any losses of your data, confidentiality or privacy in connection therewith.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
Section 15. Indemnity
You agree to defend, indemnify, and hold harmless SaferKid, its subsidiaries, affiliates, licensors, service providers, and its and their respective officers, directors, equityholders, employees, contractors, agents, licensees, licensors, representatives, suppliers, distributors, successors, and assigns (collectively, the “SaferKid Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Services, including, but not limited to any use of the Content and any services other than as expressly authorized in these Terms, or your use of any information obtained from the Services.
Section 16. Limitation of Liability
EXCEPT AS STATED ELSEWHERE HEREIN, NEITHER SAFERKID NOR ANY SAFERKID PARTIES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES AND WHETHER CAUSED BY TORT, BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. Some states or jurisdictions do not allow the exclusion or limitation of consequential or incidental damages and, in such states or jurisdictions, our liability shall be limited to the fullest extent permitted by applicable law.
IN NO EVENT SHALL WE BE LIABLE FOR ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY US OR ON BEHALF OF ANY USER ON OR THROUGH THE SITE OR ANY APP (INCLUDING ANY USER GENERATED SUBMISSIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF SAFERKID AND THE SAFERKID PARTIES AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID TO SAFERKID FOR THE APPLICABLE SERVICE OUT OF WHICH LIABILITY IS ALLEGED TO HAVE ARISEN.
The limitation of liability set out above does not apply to liability resulting from SaferKid’s gross negligence or willful misconduct.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Section 17. Dispute Resolution
To the fullest extent permitted by applicable law, you release SaferKid and the SaferKid Parties from any and all responsibility, liability, claims, demands and/or damages (actual, statutory and consequential) of every kind an nature, known and unknown, arising out of or in any way connected with the following: (i) any dispute, claim or other controversy arising therefrom or related thereto, whether in contract, tort, warranty, statute or regulation, or other legal or equitable basis (each, a “Dispute” and collectively, “Disputes”) between users, including those between you and other users; (ii) third party sites, applications and services, including Content found on such sites and services; (iii) disputes concerning any use of or action taken using your Account by you or a third party; (iv) claims relating to the unauthorized access to any data communications or Content stored under or relating to your Account, including unauthorized use or alteration of such communications or your Content.
If you have a Dispute with one or more users of the Services, or with any party who provides advertising or third-party services, on or through the Services, or with any party who provides a website or app link to or on the Services or from third party content which is posted on the Services, you release us and the SaferKid Parties from all claims, demands and damages (incidental, direct, indirect, punitive, statutory, exemplary, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such Dispute. If you have a Dispute with any third party in any way pertaining to the Services and/or Content, you release us and the SaferKid Parties from any and all claims, demands and damages (incidental, direct, indirect, punitive, statutory, exemplary, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such Dispute. You also waive and relinquish all rights and benefits you have or may have, under Section 1542 of the California Civil Code or any federal or state statute or principle of common law of any state of the U.S., or any political entity or nation, province or local law or regulation of like effect, to the full extent you may lawfully do so, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
You agree not to file any action or lawsuit inconsistent with the foregoing release.
If any court of competent jurisdiction finds the above arbitration and/or class action waiver provisions invalid or inapplicable, you agree to the exclusive jurisdiction of the federal and state courts located in the U.S., in the state in which you reside, and the related appellate courts, in any related action or proceeding.
All matters relating to the Services and these Terms, and any Dispute shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).
Any legal suit, action, or proceeding arising out of, or related to, these Terms or the Services shall be instituted exclusively in the federal courts of the U.S. or the courts of the state in which you reside, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms in your country of residence or any other relevant country.
Binding Arbitration and Class Action Waiver.
YOU AND SAFERKID AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLASS MEMBER OR PRIVATE ATTORNEY GENERAL IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate the claims of more than one party, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable as applied to any Dispute asserted by any individual, then the entirety of the arbitration provision set forth herein shall be null and void.
You and SaferKid agree to arbitrate all disputes between you and SaferKid or its affiliates, except Disputes relating to the enforcement of SaferKid’s or its affiliates’ intellectual property rights. You and SaferKid empower the arbitrator with the exclusive authority to resolve any Dispute relating to the interpretation, applicability or enforceability of these Terms or formation of this contract, including the arbitrability of any Dispute and any claim that all or any part of these Terms are void or voidable.
In the event of a Dispute, you or SaferKid must send to the other party a notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving the notice, the facts giving rise to the Dispute and the relief requested. You must send any notice of Dispute via email to email@example.com or via mail to 590 Lipoa Parkway, Suite 110, Kihei, HI 96753. You and SaferKid will attempt to resolve a Dispute through informal negotiation within sixty (60) days from the date the notice of Dispute is sent. After sixty (60) days, you or we may commence arbitration. You may also litigate a dispute in small claims court if the Dispute meets the requirements to be heard in small claims court. Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide SaferKid with written notice of your desire to do so by email at firstname.lastname@example.org or regular mail at 590 Lipoa Parkway, Suite 110, Kihei, HI 96753 within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”).
If you don’t provide SaferKid with an Arbitration Opt-out Notice within such thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth above. If you timely provide SaferKid with an Arbitration Opt-out Notice, proper venue will be the state and federal courts located in the Los Angeles, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide SaferKid with an Arbitration Opt-out Notice, YOU ACKNOWLEDGE AND AGREE THAT YOU AND SAFERKID ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.)
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitration will be resolved by a single attorney or retired California judge or justice, in each case, experienced in commercial and business affairs, and who has served as an arbitrator in at least fifteen (15) commercial arbitration proceedings, and pursuant to the then applicable AAA Rules, with the arbitrator also to decide all issues regarding the existence, scope and enforceability of this mandatory, final and binding arbitration agreement. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure.
Unless you and SaferKid otherwise agree, the arbitration will be conducted in the state or province where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and SaferKid submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. SaferKid will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses in connection with any non-frivolous arbitration between you and SaferKid.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, SaferKid will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
During the arbitration, the amount of any settlement offer made by you or SaferKid shall not be disclosed to the arbitrator.
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if SaferKid changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com within thirty (30) days of the date such change became effective, as indicated in the “Last Modified” date above or in the date of SaferKid’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and SaferKid in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Section 18. General Terms
Limitation on Time to File Claims.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Waiver and Severability.
No waiver by SaferKid of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of SaferKid to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.
If any part of these Terms is determined to be invalid or unenforceable under applicable law, including the warranty disclaimers and liability limitations stated elsewhere herein, then the invalid or unenforceable provision(s) will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms shall continue in full force and effect.
You agree that we may assign any of our rights, and/or transfer, sub-contract or delegate any of our obligations under these Terms and such assignment will be binding upon and inure to the benefit of our successors and assigns. Your agreement to these Terms is personal to you as a user, and so you may not transfer or assign your rights and obligations under these Terms to any third party without our prior written consent.
These Terms constitute the entire agreement between you and SaferKid and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and SaferKid, with respect to your use of the Services, and all matters relating to your access to, and/or use of the Services.
A printed version of these Terms and of any notice given in electronic form shall be admissible in any and all judicial or administrative proceedings based upon or relating to these Terms to the same extent as other business documents and records originally generated and maintained in printed form.
Any notices or other communications provided by SaferKid under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The headings in these Terms are for reference only and shall not affect the interpretations of these Terms.
No party, nor any of the parties’ respective attorneys, shall be deemed the drafter of these Terms for purposes of interpreting any provision hereof in any judiciail or other proceeding that may arise between the parties.
Third Party Beneficiary.
Except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to these Terms. For the purposes of clarity, the SaferKid Parties are intended to be and are considered third party beneficiaries of these Terms.
Section 19. Feedback
We welcome feedback, comments, requests for technical support, suggestions for improvements to the Services and other communications relating to the Services (“Feedback”) should be directed to firstname.lastname@example.org. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Section 20. Contact Information
The Services are operated by SaferKid, Inc. at: 590 Lipoa Parkway, Suite 110 Kihei, HI 96753.