Terms of Service
Dated: February 21st, 2017.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CHECKING THE “I AGREE TO THE TERMS OF SERVICE” CHECKBOX WHEN CREATING AN ACCOUNT, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between Y2kidz, Inc., a Delaware Corporation (“Y2Kidz”) and the person entering into this Agreement (“Customer”). This Agreement is effective as of the date Customer checks a box in a web form or takes another affirmative step to enter into this Agreement (the “Effective Date”). Customer’s use of and Y2Kidz’s provision of Y2Kidz’s Service (as defined below in Section 1.6) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
- DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.
- “AUP” means Y2Kidz’s Acceptable Use Policy currently posted at https://y2kidz.com/aup/.
- “Child” or “Children” means a minor that has signed up for the Service and indicated that Customer is Child’s legal parent or guardian. Where used as a singular it shall mean the plural and vice versa; these Terms of Service are meant to govern the use of the Service by all children under Customer’s supervision or control.
- “Child Data” means any data in electronic form inputted or collected through the Service by the Child or Children.
- “Customer Data” means data in electronic form inputted or collected through the Service by or from Customer, including the Child Data.
- “Term” is a time period for which the Customer has paid for the Service.
- “User” means any individual who uses the Service on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- THE SERVICE.
- Use of the Service. During the Term, Customer may access and use the Service pursuant to: (a) the terms of any outstanding Order, including such features and functions as the Order requires; and (b) Y2Kidz’s policies posted on its Website at https://y2kidz.com/tos, https://y2kidz.com/aup, https://y2kidz.com/privacy, as such policies may be updated from time to time.
- Service Uptime. Y2Kidz provides no guarantee of a specific uptime of the service, and Customer agrees that Customer has no remedy for lack of availability of the Service, except that if uptime in a given month is less than 95%, then Customer is eligible for a refund in that month equal to the amount paid by the Customer for that month’s Service multiplied by the fraction of downtime in the month.
- Service Revisions. Y2Kidz may revise Service features and functions at any time, including without limitation by removing or adding features and functions.
- Use Of Child-Generated Content. Customer grants Y2Kidz a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works based upon, publicly perform, make available and otherwise exploit content created by the Children, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the Services and on third-party sites and platforms such as Facebook, YouTube and Twitter), in any number of copies and without limit as to time, manner and frequency of use, without further notice to Customer, with or without attribution, and without the requirement of permission from or payment to Customer or any other person or entity. This license does not extend to any information such as name, address, email, or other personally-identifiable information.
- SERVICE FEES. Customer shall pay Y2Kidz the fee described on the order page (the “Subscription Fee”) for the Term. Y2Kidz will not be required to refund the Subscription Fee under any circumstances. The Subscription Fee is a required part of compliance with the Children’s Online Privacy Protection Act (“COPPA”), and by providing the payment in conjunction with agreement to these Terms Of Service, Customer consents to the Children’s use of the Service. By signing up for a subscription, Customer agrees that Customer’s subscription will be automatically renewed and, unless Customer cancels his or her subscription, Customer authorizes Y2Kidz to charge Customer’s payment method for the renewal term.
- CUSTOMER DATA & PRIVACY.
- Use of Customer Data. Unless it receives Customer’s prior written consent (including such consent as is given in the license in 4.1), Y2Kidz: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Service; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Y2Kidz’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Y2Kidz may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Y2Kidz shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
- Monitoring of Data. Y2Kidz has the right but not the obligation to monitor, screen, post, remove, modify, store and review content created or submitted by users including Customer and the Children, or communications sent through the Service, at any time and for any reason, including to ensure that the content or communication conforms to these terms, without prior notice. Y2Kidz is not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by users.
- Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, Customer assumes such risks. Y2Kidz offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
- Data Accuracy. Y2Kidz shall have no responsibility or liability for the accuracy of data uploaded to the Service by Customer, including without limitation Customer Data and any other data uploaded by the Child.
- Data Deletion. Y2Kidz may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
- Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, Y2Kidz may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)
- CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
- Acceptable Use. Customer shall comply with the Acceptable Use Policy. Customer shall not: (b) use the Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Service; (c) provide Service passwords or other log-in information to any third party; (d) share non-public Service features or content with any third party; or (e) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Y2Kidz may suspend Customer’s access to the Service without advance notice, in addition to such other remedies as Y2Kidz may have. Neither this Agreement nor the AUP requires that Y2Kidz take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Y2Kidz is free to take any such action it sees fit.
- Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information, as well as that of the Child or Children. Customer shall notify Y2Kidz immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop said breach.
- Compliance with Laws. In its use of the Service, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
- Users & Service Access. Customer is responsible and liable for: (a) the Child’s use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the Service through Customer’s account, whether authorized or unauthorized.
- IP & FEEDBACK.
- IP Rights to the Service. Y2Kidz retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all graphics, user interfaces, logos, and trademarks reproduced through the Service. This Agreement does not grant Customer any intellectual property license or rights in or to the Service or any of its components. Customer recognizes that the Service and its components are protected by copyright and other laws.
- Feedback. Y2Kidz has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Y2Kidz, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Y2Kidz’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Y2Kidz’s products or services.
- REPRESENTATIONS & WARRANTIES.
- Customer represents and warrants that: (a) he or she is the parent or guardian of the Child or Children, and that the Child or Children are under 12 years of age; (b) he or she has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (c) he or she has accurately identified him- or herself and it has not provided any inaccurate information about itself to or through the Service.
- Warranty Disclaimers. CUSTOMER ACCEPTS THE SERVICE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) Y2KIDZ HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) Y2KIDZ DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) Y2KIDZ DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
- INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Y2Kidz and Y2Kidz Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's (or Customer’s Children’s) alleged or actual use of, misuse of, or failure to use the Service, including without limitation: (a) claims related to the use of the Service by persons over the age of 12; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information by Customer or Children; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the Service through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Y2Kidz’s negligence. Customer’s obligations set forth in this Article 8 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Y2Kidz will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Y2Kidz Associates” are Y2Kidz’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
- LIMITATION OF LIABILITY.
- Dollar Cap. Y2KIDZ’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $2000.
- Exclusion of Consequential Damages. IN NO EVENT WILL Y2KIDZ BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF Y2KIDZ IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, Y2Kidz’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Y2Kidz’s liability limits and other rights set forth in this Article 9 apply likewise to Y2Kidz’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
- Term & Termination.
- Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for such time as the Customer maintains an account with the Service, and pays any dues or payments as required for access to the service.
- Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in 3 days unless the other party first cures such breach.
- Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Service and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7.2 (Warranty Disclaimers), 8 (Indemnification), and 9 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
- Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Y2Kidz employee or contractor will be an employee of Customer.
- Notices. Y2Kidz may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to 6828 Sherwick Drive, Berkeley CA 94705, and such notices will be deemed received 72 hours after they are sent.
- Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
- Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Y2Kidz’s express written consent. Except to the extent forbidden in this Section 11.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Alameda, California.
- Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
- Technology Export. Customer shall not: (a) permit any third party to access or use the Service in violation of any U.S. law or regulation; or (b) export any software provided by Y2Kidz or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Service in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
- Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
- DMCA Notice
Notifications of claimed copyright infringement and counter notices must be in English and sent to the designated agent:
Akinji Donaldson, 4096 Piedmont Ave #516, Oakland, CA 94611-5221, USA
Y2Kidz will respond expeditiously to claims of copyright infringement committed using the Service that are reported to Y2Kidz’s Designated Copyright Agent, identified above, in accordance with the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”) or, as applicable, other laws. These notices must include the required information set forth in 17 U.S. Code § 512(c)(3).
- BINDING ARBITRATION AND CLASS ACTION WAIVER
- Customer and Y2Kidz agree to arbitrate all disputes between Customer and Y2Kidz or its affiliates. “Dispute” includes any dispute, action or other controversy between Customer and Y2Kidz concerning the Service or these terms, whether in contract, tort, warranty, statute or regulation, or other legal or equitable basis. Customer and Y2Kidz 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, Customer or Y2Kidz 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. Customer must send any notice of dispute to Y2Kidz, 4096 Piedmont Ave #516, Oakland, CA 94611-5221, USA Attention: Legal/Arbitration Notice. Y2Kidz will send any notice of dispute to Customer at the contact information Y2Kidz have for Customer. Customer and Y2Kidz 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, Customer or Y2Kidz may commence arbitration. Customer may also litigate a dispute in small claims court if the dispute meets the requirements to be heard in small claims court, whether or not Customer negotiated informally first.
- If Customer and Y2Kidz do not resolve a dispute by informal negotiation or in small claims court, the dispute shall be settled by binding arbitration before a single neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. CUSTOMER IS GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY. Arbitration will be administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and its Supplementary Procedures for Consumer Related Disputes. For more information, visit www.adr.org or, in the United States, call 800-778-7879. Arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator may award damages to Customer individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy Customer’s individual claim.
- Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, at the conclusion of the arbitration Y2Kidz will reimburse Customer for all filing, AAA, and arbitrator’s fees and expenses. If the arbitrator issues Customer an award that is greater than the value of Y2Kidz’s last written settlement offer made before an arbitrator was selected (or if Y2Kidz did not make a settlement offer before an arbitrator was selected), then Y2Kidz will pay Customer the amount of the award or US $1,000, whichever is greater, and pay Customer’s attorney, if any, the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that Customer or Customer’s attorney reasonably accrue for investigating, preparing and pursuing Customer’s claim in arbitration. Y2Kidz waives any right to seek an award of attorneys’ fees and expenses in connection with any non-frivolous arbitration between Customer and Y2Kidz.
- If Customer is a resident of the United States, arbitration will take place at any reasonable location convenient for Customer. For residents outside the United States, arbitration shall be initiated in Alameda County, California, United States of America, and Customer and Y2Kidz agree to submit to the personal jurisdiction of the federal or state courts located there, in order to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither Customer nor Y2Kidz will seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.