Terms of Service
GOOD PARENTS, INC.
TERMS OF SERVICE
Last Revised: March 10, 2019
In addition to access to our Website and mobile applications (“Application”), we provide a range of related services to our Users (collectively “Services”). These Terms of Service (“User Terms”) are a legally binding agreement between Good Parents and the User and it governs your access to and use of Kiddo and our Services.
THE KIDDO IS NOT INTENDED TO DIAGNOSE OR TREAT ANY MEDICAL OR HEALTH ISSUES. IF YOUR CHILD IS EXPERIENCING ANY HEALTH ISSUES PLEASE SEEK PROFESSIONAL MEDICAL HELP AND REFRAIN FROM RELYING ON ANY INFORMATION DISSEMINATED FROM KIDDO. YOU ARE FULLY RESPONSIBLE FOR ANY HARM THAT RESULTS FROM YOUR USE OR YOUR CHILDREN’S OR THRID PARTIES’ USE OF THE KIDDO.
THIS AGREEMENT GOVERNS YOUR USE AND ACCESS OF THE WEBSITE, APPLICATION AND SERVICES. PLEASE READ THESE USER TERMS AND ANY RELATED DOCUMENTS CAREFFULLY AND ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE USER TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
IF YOU DO NOT AGREE WITH THE TERMS SET FORTH HEREIN, DO NOT REGISTER OR USE KIDDO OR OUR SERVICES. IF YOU USE AND ACCESS KIDDO AND THE SERVICES, YOU ARE BOUND BY THESE USER TERMS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, OUR STORAGE OF YOUR PERSONAL INFORMATION IS NOT AN ELECTRONIC HEALTH RECORD AND WE DO NOT COMPLY WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, AS AMENDED FROM TIME TO TIME (“HIPAA”). PLEASE DO NOT PROVIDE US WITH ANY PROTECTED HEALTH INFORMATION (“PHI”), AS DEFINED IN HIPAA.
If you have any questions about our Terms of Service, please send us an email at email@example.com.
Our Products and our Services are currently available for purchase and use in the United States of America (“US”) and elsewhere in the world except in the Economic European Region (“EER”). the European Union (“EU”) and Switzerland (Collectively “Europe"). We are currently not authorized to sell our Products and Services in Europe and, as such, we do not sell our Products and Services in Europe. We will revise these User Terms when we are able to sell our Products and Services in Europe. Please look at these User Terms regularly.
3. USE OF OUR SERVICES
Persons under the age of 13 are not permitted to access or use the Services unless their parent or legal guardian give written consent and we are able to verily such consent in accordance with applicable law. Additionally, you cannot access or use Services if you are unable to sign a contract under applicable law or have been suspended or removed by us from the Services.
In order to access and use our Services and Products, you will be asked to establish an account (“Account”) on our Website or Application, whichever may be applicable. To establish an Account, you will be asked to provide certain registration details and other information including a user name and password, name, date of birth and other metrics (such as height, weight, allergies, disorders etc.) of the child using the Product (collectively “Account Information”). Parents may customize our Products and Services for use by their Children. You represent and warrant that the Account Information will at all times be correct, current and complete. You must treat such Account Information as confidential. You agree not to disclose such Account Information to any other person or entity. You agree not to provide any other person/third-party with access to your Account or your Account Information. You are responsible for any purchase of Products by any third-party placed with your Account Information. You agree to defend, indemnify, and hold us harmless for any purchases, other activity or third-party claims that result from the use of your Account or your Account Information by any other person, whether or not authorized. You agree to defend, indemnify, and hold us harmless for any harm that results from your use, your children’s use or third parties’ use of our Products and Services. You agree that you are fully liable for your use, your children’s use of third parties’ use of our Products and Services.
You agree to notify us immediately of any unauthorized access to or use of your Account or your Account Information or other breach of the Website or the Application’s security. You agree that we have the right to disable your Account and delete your Account Information, at any time if, in our opinion, you have violated any provision of these User Terms including, without limitation, the terms of this Section. You agree to cooperate with us if the security of our Services is compromised by you or another person through the use of your Account or Account Information. You acknowledge that we reserve the right to withdraw or amend your access to Kiddo and Services in our sole discretion without notice.
5. PARENTS’ RESPONSIBILITY
6. USER CONTENT
You hereby grant Good Parents a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in the User Content, in any media now known or not currently known in order to perform and improve upon Kiddo and the Services.
For the purposes of these User Terms, “User Content” means all content submitted, posted, uploaded, published, or transmitted on or through the Website, Application, or through the use of Kiddo by any User, including but not limited to the Account Information, health and activity data, location information, photographs, profile information, descriptions, postings, reviews, and payments made through the Website and/or the Application, but excluding Good Parents content.
7. SERVICE RESTRICTIONS
You agree that the Services, including but not limited to the Website, the Application, graphics, trademarks, and editorial content, contain proprietary content, information and material, are owned by Good Parents and/or its licensors, including our customers, brands and agencies, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for your permitted use of the Services or in any manner that is inconsistent with these User Terms.
You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, Trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Good Parents is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using the Services.
8. KIDDO SERVICES
Our Services are intended for personal, non-commercial use. Good Parents grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable access and use of Kiddo Services and Products, to access and view the User Content, and to access and use the Website and Application. You may not resell or otherwise transfer our Products or Services to third parties without our prior written consent.
Except to the extent permitted by law, you may not perform, attempt to perform or encourage or assist others in performing any of the following while accessing or using Kiddo: (1) use, display, mirror, or frame Kiddo or Services or any individual element within Kiddo or Services, including the layout and design of any page, without Good Parent’s express written consent; (2) use Good Parents’ name, any Good Parents trademark or logo, or any Good Parents proprietary information without Good Parents’ express written consent; (3) access or tamper with non-public areas of Kiddo or Services, Good Parents’ computer systems, or the technical delivery systems of Good Parents’ providers; (4) test the vulnerability of any Good Parents system or breach any security or authentication measures; (5) circumvent any technological measure implemented by Good Parents or any of Good Parents' providers or any other third party (including another user) to protect Kiddo and Services; (6) access the Services or User Content through the use of any mechanism other than through the use of an Account; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that Good Parents provides to you or any other part of Kiddo or Services.
You agree to defend, indemnify, and hold us harmless from any harm which results from your breach of any of the restrictions set forth in this Section 8.
We reserve the right, at our sole discretion, to change or modify these User Terms at any time. In the event, we modify these User Terms, such modifications shall be binding on you only upon your acceptance of the modified User Terms. We will inform you about the modifications via email or comparable means within 15 days of such modification. We will also post the modified version on this page. Your continued use of the Kiddo and the Services shall constitute your consent to such changes. Good Parents may change, modify, suspend, or discontinue any aspect of Kiddo and the Services at any time without notice or liability.
10. ACCESS & PROHIBITED USE
You may use the Kiddo and the Services only for lawful purposes and in accordance with these User Terms. You warrant, represent and agree that you will NOT to use Kiddo and/or the Services:
In a way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States of America or other countries).
To send, knowingly receive, upload, download, use or re-use any material which does not comply with these User Terms.
To impersonate or attempt to impersonate Good Parents, a Good Parents employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
To engage in any other conduct that restricts or inhibits anyone’s use of Kiddo and the Services, or which, as determined by us, may harm Good Parents or our customers or expose them to liability.
In any manner that could disable, overburden, damage, or impair the Website or the Application or interfere with any other party’s use of Kiddo and/or the Services.
To introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage or disrupt Kiddo and/or the Services.
To introduce any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
Decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to Kiddo and/or the Services.
Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
Promote any illegal activity, or advocate, promote or assist any unlawful act.
Impersonate any person or misrepresent your identity or affiliation with in our registration process.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD GOOD PARENTS, ITS RELATED COMPANIES AND THEIR EMPLOYEES, AGENTS, OR CONTRACTORS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS OF VIOLATIONS OF THIS SECTION AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF OR RESULTING FROM SUCH INVESTIGATIONS BY ANY OF THE FOREGOING PARTIES OR LAW ENFORCEMENT AUTHORITIES.
11. THIRD-PARTY INTERACTIONS
Our Website and/or Application may contain links to third-party websites, third-party applications, and third-party advertisements (“Third-Party Websites & Advertisements”). However, we are not responsible for any Third-Party Websites & Advertisements. Good Parents provides these Third-Party Websites & Advertisements only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites & Advertisement, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that these User Terms govern the relationship between you and us and not with the App Store. We, not the App Store, are solely responsible for Kiddo and the Service, including the Application, the content thereof, maintenance, support services and warranty thereof, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application.
If you rely on any User Content or the Services, you do so solely at your own risk. Our goal is to provide helpful and accurate information on your child on the Services, but we make no endorsements, representations, or warranty of any kind about any User Content, information, or services. The accuracy of the data collected and presented through the Services and use of Kiddo is not intended to match that of medical devices or scientific measurement devices. You are solely liable for any harm that result from your use, your children’s use, or third parties’ use of the Kiddo and/or Services.
We are not responsible (and explicitly disclaim any liability) for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through Kiddo and Services. Use of Kiddo and Services should not replace your or your child’s good judgment and common sense.
13. MEDICAL DISCLAIMER
The Kiddo and Services are not intended to diagnose, treat, cure, or prevent any disease. If your child has a medical or heart condition, consult his/her doctor before using Kiddo and Services, engaging in an exercise program, or changing your diet. If your child experiences a medical emergency, stop using Kiddo and Services and consult with a medical professional. We are not responsible (and explicitly disclaim any liability) for any health problems that may result from products, programs, or events you learn about through Kiddo and Services. If your child engages in any exercise program or health regime you receive or learn about through Kiddo and Services, you agree that you do so at your own risk and are voluntarily participating in these activities.
Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. To reduce irritation, follow four simple wear and care tips: (1) keep it clean, (2) keep it dry, (3) don’t wear it too tight, and (4) give your wrist a rest by removing the band for an hour after extended wear. For more information visit our Website. If you notice any skin irritation, soreness, tingling, numbness, burning, or stiffness in your child’s hands or wrists while or after wearing the product, remove your device and please discontinue use. If any symptoms persist longer than 2-3 days after removing the device, consult your child’s doctor. You are responsible for any harm that results from your use, your children’s use or third parties’ use of the Kiddo or our Services.
14. EMAILS, TEXT MESSAGES & MOBILE PHONE CONSENT
Text Messages. You understand and agree that you may receive information and push notifications from Good Parents via text messaging or through the Application. You hereby consent to receive communications via the Application, text message, or for calls to your mobile number. You acknowledge that you may receive additional charges or fees from your wireless provider for these communications, including text message charges and data usage fees, and you acknowledge and agree that you are solely responsible for any such charges and fees and not us. You may ask us to stop (or opt-out) the transmission of these communications at any time and we will do so.
Email Subscription. You can always unsubscribe from our commercial or promotional emails and we will do so. But you may still send you transactional and relational emails about your Account and your Purchases.
Push Notification. You can opt out of receiving push notifications through the Application. Please note that opting out of receiving push notifications may impact your use of the Kiddo and/or Services.
In the event that any information is disclosed to you through your access to Kiddo and/or the Services related in any way to Good Parents and Good Parents’ business and its customers which we deem to be confidential and proprietary, you agree to promptly notify Good Parents about such disclosure and hold such information in the strictest of confidence. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about Kiddo and/or the Services ("Submissions"), provided by you to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You shall indemnify, defend and hold Good Parents and our officers, employees, managers, directors, customers and agents (the “Good Parents Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against Good Parents Indemnified Parties arising from any of the following: (i) a breach of these User Terms; (ii) your, your children’s, your invitee’s or your agent’s negligence, gross negligence or willful misconduct; (iii) incorrect information provided by you in your Account or elsewhere ; or (iv) a failure by you, your children, your invitees or your agents to comply with applicable laws and regulations.
17. DISCLAIMERS OF WARRANTIES
Your access to and use of the Kiddo and/or the Services or any content are at your own risk. You understand and agree that the Kiddo and/or the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis except as set forth in our Limited Warranty. Without limiting the foregoing, to the maximum extent permitted under applicable law, GOOD PARENTS DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT EXCEPT AS SET FORTH IN OUR LIMITED WARRANTY. Good Parents makes no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any content; (iii) the deletion of, or the failure to store or to transmit, any content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from Wise or through the Services, will create any warranty or representation not expressly made herein.
18. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOOD PARENTS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GOOD PARENTS EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID GOOD PARENTS, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT GOOD PARENTS HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
YOU AND, AND, ON BEHALF OF YOUR CHILDREN, INVITEES, AND AGRENTS, YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE KIDDO AND/OR ACCESSING THE SERVICES AND THE WEBSITE. YOU, ON BEHALF OF YOUR CHILDREN, INVITEES, AND AGENTS, YOU HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY GOOD PARENTS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY CLAIMS, DISPUTES, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) YOUR ACCESS TO OR USE OF THE WEBSITE, OR THE SERVICES (II) YOUR USE OF THE SERVICES OR YOUR CHILD’S USE OF KIDDO, INCLUDING, WITHOUT LIMITATION, FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM THE USE OF THE WEBSITE OR THE SERVICES, (III) VIOLATION OF THESE USER TERMS, INCLUDING, WITHOUT LIMITATION, YOUR BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES, (IV) CLAIMS, OR ANY DECISION BY A COURT, ARBITRATOR, OR GOVERNMENT AGENCY, THAT WISE IS OBLIGATED TO PAY ANY WITHHOLDING TAXES, SOCIAL SECURITY, UNEMPLOYMENT OR DISABILITY INSURANCE OR SIMILAR ITEMS IN CONNECTION WITH ANY PAYMENT RECEIVED BY YOU UNDER THE USER TERMS, (V) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY RIGHT OF PRIVACY OR INTELLECTUAL PROPERTY RIGHTS, (VII) YOUR VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION, (VIII) YOUR WILLFUL MISCONDUCT, OR (IX) ANY OTHER PARTY’S ACCESS AND USE OF THE SERVICE WITH YOUR UNIQUE USERNAME, PASSWORD OR OTHER APPROPRIATE SECURITY CODE.
19. COPYRIGHT INFRINGEMENT/DMCA NOTICE
If you believe that any content on our Website or Application violate your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c) (“DMCA Takedown Notice”) must be provided to our designated Copyright Agent. It is our policy to terminate the accounts of repeat infringers.
Your physical or electronic signature;
Identification of the copyrighted work(s) that you claim to have been infringed;
Identification of the material on our services that you claim is infringing and that you request us to remove;
Sufficient information to permit us to locate such material;
Your address, telephone number, and e-mail address;
A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
The Good Parents Copyright Agent to receive the DMCA Takedown Notices is the CEO, Good Parents, Inc. Attn: DMCA Notice, Good Parents, Inc. Suite 1105, 795 Folsom Street, San Francisco, CA 94107. You acknowledge that for us to be authorized to take down any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
If you transfer Kiddo to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use Kiddo or Services under your Account and will need to register for a separate Account with Good Parents and accept these User Terms. Upon termination of these User Terms, your Account and your right to use the Services will automatically terminate.
Sections 7, 12, 15-22, 25- 28 and any other section, which by its context is intended to survive, shall survive any termination or expiration of this Agreement.
These User Terms are only for your benefit. You shall have no right to assign these User Terms or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
22. TERMS OF SALE & THE EULA
Your purchase of any Products is governed by the Terms of Sale, in addition to being subject to the Terms of Service. The Software embedded in the Product (and any updates thereto) (“Kiddo Software”) is licensed and governed by the End User License Agreement. You will be required to sign an End User License Agreement with us or an Authorized Reseller and a Bill of Sale for the Products before we can begin to provide you Services.
23. ANTI-BRIBERY AND EXPORT COMPLIANCE
You agree not to promote, approach or use, distribute, transfer, provide, sub-license, share with, or otherwise offer Kiddo and/or the Services in violation of any Laws or these User Terms, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) the Services to any destination, person, entity or end use prohibited or restricted under US law without prior US government authorization to the extent required by regulation, including without limitation, any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the EAR or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by regulation.
24. RELATIONSHIP OF PARTIES
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, agent/servant. The User has no power or authority to bind Good Parents to any obligation, agreement, debt or liability. The User shall not hold itself out as an agent or representative of Good Parents.
25. FORCE MAJEURE
Neither Good Parents nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, food preparation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
26. GOVERNING LAW
This Agreement shall be governed by the law of the State of Delaware, without respect to its conflicts of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Delaware, for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 27.
27. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH GOOD PARENTS, LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, AND PROHIBITS YOU FROM PARTICIPATING IN CLASS ACTIONS, AND REQUIRES YOU TO WAIVE YOUR RIGHTS TO A TRIAL BY JURY.
a. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Good Parents agree (a) to waive your and Good Parents’ respective rights to have any and all Disputes arising from or related to this Agreement, use of Kiddo and Services, resolved in a court, and (b) to waive your and Good Parents’ respective rights to a jury trial. Instead, you and Good Parents agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
b. No Class Arbitrations, Class Actions or Representative Actions
You and Good Parents agree that any Dispute arising out of or related to these User Terms or the Website, Services or Kiddo is personal to you and Good Parents and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Good Parents agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Good Parents agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
c. Federal Arbitration Act
You and Good Parents agree that these User Terms affect interstate commerce and that the enforceability of this Section 27 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
d. Notice; Informal Dispute Resolution
You and Good Parents agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Good Parents shall be sent by certified mail or courier to Good Parents, Inc., Attn: Legal, Suite 1105, 795 Folsom Street, San Francisco, CA 94107. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Good Parents’ account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Good Parents cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Good Parents may, as appropriate and in accordance with this Section 27, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND GOOD PARENTS AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR GOOD PARENTS WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND GOOD PARENTS WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Good Parents agree that (a) any arbitration will occur in San Francisco, California, (b) arbitration will be conducted confidentially by a single arbitrator 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, and (c) that the state or federal courts of the State of Delaware, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
f. Authority of Arbitrator
As limited by the FAA, these User Terms and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these User Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA rules. discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.
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. We will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
g. Rules of AAA
The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these User Terms, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section 27 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 27 will remain valid and enforceable. Further, the waivers set forth in Section 27 are severable from the other provisions of these User Terms and will remain valid and enforceable, except as prohibited by applicable law.
i. Opt-Out Right
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION 27 BY WRITING TO: GOOD PARENTS, INC., RE: OPT-OUT, GOOD PARENTS, INC. SUITE 1105, 795 FOLSOM STREET, SAN FRANCISCO, CA 94107. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 26.
PLEASE NOTE THAT BY USING THE WEBSITE, APPLICATION, THE SERVICES AND/OR THE KIDDO YOU ARE AGREEING TO BE BOUND BY AND TO COMPLY WITH THE USER TERMS DESCRIBED HEREIN. IF YOU DO NOT AGREE TO THESE USER TERMS, PLEASE DO NOT USE OUR WEBSITE, APPLICATION, THE SERVICS, AND/OR KIDDO AND EXIT IMMEDIATELY.