Last Updated Date: December 4, 2017
1.1. Acceptance; Authority. By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Website or App, you agree to these Terms. If you do not agree, or do not have all requisite authority and consent to be bound by the Terms (as further described below), you may not access or use the Website, App, GoKid Connect or the Services in any way.
1.2. Disclaimer. The Services enable users to arrange and schedule transportation and/or logistics services with friends, family members and other people that users voluntarily and independently select. GOKID DOES NOT SCREEN USERS IN ANY WAY AND DOES NOT MAKE RECOMMENDATIONS FOR DRIVERS OR RIDERS FOR CARPOOLS. USERS OF THE SERVICES INDEPENDENTLY DETERMINE WHO THEY ELECT TO CARPOOL WITH AND BEAR FULL RESPONSIBILITY AND ACCEPT ALL LIABILITY RELATING THERETO. YOU ACKNOWLEDGE THAT GOKID DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER.
1.3. Types of Users. The Services are available to different types of Users, who will have different types of accounts with different tools, functionalities and restrictions. For example, the Services may be accessed by parents and legal guardians (collectively, “Parents”) to set up carpools for their families; by authorized representatives working within an educational institution or other organization, such as a school, school district, or employer (collectively “Organizations”) that license the Services on behalf of Parents; and by children, who may view their accounts if set up by a Parent, but they may not set up or make changes to carpools (“Children”).
1.4. Additional Terms. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.
1.5. Eligibility. By registering for or using the Services in any way, you represent and warrant that you meet all eligibility criteria set forth in these Terms, including all age and authorization requirements listed below. We may, in our sole discretion, refuse to offer the Services to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access the Services is revoked where these Terms or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
1.5. Modifications. Please regularly check the Website, App, or GoKid Connect, as applicable, to view the then-current Terms. When changes are made, GoKid will make a new copy of the Terms available through the Services, and we will update the “Last Updated” date at the top of the Terms. If we make any changes to the way Family Data (defined below) is collected, used or shared by the Services, we will also send an e-mail to the applicable accountholder using the contact information we have on file with additional information regarding the collection of such data and available options regarding data collection and use, before the data is used in any manner inconsistent with the terms initially provided to Users. For other changes, the Terms are subject to change by GoKid in its sole discretion at any time. If you do not agree to any change(s) after receiving a notice of such change(s), please stop using the Website and/or the Services and please contact us to have your account deleted. Otherwise, your continued use of the Website, App, GoKid Connect, and/or Services constitutes your acceptance of such change(s). Any changes to the Terms will be effective immediately for new Users of the Services.
2.1 Use of the Services. The Website, App, GoKid Connect, and Services, and the information, data and content made available therein or thereon (“Content”) are protected by copyright and other intellectual property and proprietary rights laws throughout the world. Subject to the Terms, GoKid grants you a limited license to access, view, download, print or reproduce certain portions of the Services, as designated by GoKid, for the sole purpose of using the Services for your (or your Families’ or Organization’s) non-commercial purposes.
2.2. Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website, App, GoKid Connect, or Services; (b) you shall not use framing techniques to enclose any trademark or logo on the Website, App, GoKid Connect or Services; (c) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Website, App, GoKid Connect or Services except to the extent the foregoing restrictions are expressly prohibited by applicable statutory law; (d) you shall not use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Website, App, GoKid Connect or Services; (e) except as expressly stated herein, no part of the Website, App, GoKid Connect or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, provided that you may reproduce or print certain Content made available through the Website, App, GoKid Connect or Services, as designated by GoKid, on behalf of your Families who have existing Accounts; and (f) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Website, App, GoKid Connect or Services. Any future release, update or other addition to the Website, App, GoKid Connect or Services shall be subject to the Terms. GoKid, its licensors, suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Website, App, GoKid Connect or Services terminates the licenses granted by GoKid pursuant to the Terms.
3.1. Account Types. In order to access certain features of the Services, you must have a registered account for the Services (“Account”). Accounts are categorized as “GoKid” (available through the App) and “GoKid Connect”, available through the GoKid Connect portal. Within those accounts, there are Parent and Child accounts. Only a Parent may enter information necessary to set up a Child account. Children with an account may view carpool information, but not change Account or carpool information.
3.2. Eligibility. If you are a Child under age 18, you may only use the Services under the supervision of an adult, in which case the adult shall be deemed the User and shall be responsible for all activities. You agree that you are the Parent of any users younger than 13 years of age that you add to your Account, and that you consent to their use of the Services.
3.3. Registration Data. If you sign up for the Services or an Organization signs up on your behalf, you will receive an email advising you that you may opt out. If you are registering for a GoKid Connect account, you will receive a personalized token to register your information. Account registration requires you (or an Organization on your behalf) to submit to GoKid certain personal information, such as a Parent’s name, address, and mobile phone number, and those of your family members on whose behalf you set up Accounts. In registering for the Services, you (a) agree to provide all necessary information about yourself and your Family, Organization or other organization (“Registration Data”); (b) represent and warrant that all Registration Data is true, current, and complete; and (c) agree to maintain and promptly update the Registration Data to keep it true, current, and complete. Your failure to maintain accurate, complete, and up-to-date Registration Data, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or GoKid’s termination of this Agreement.
3.4. Responsibility. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone outside your family, and you agree to notify GoKid immediately of any unauthorized use of your password or any other breach of security. You agree not to create or access an Account using a false identity or any false or inaccurate information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time, unless otherwise permitted by GoKid in writing. You agree not to create an Account or use the Services if you have been previously removed by GoKid, or if you have been previously banned from any of the Services.
3.5. GoKid Connect Accounts for Organizations
3.5.1. Administrator Accounts. Currently, GoKid offers a type of Account to access the Services on behalf of an Organization: “Administrator” Accounts. This is a limited Account that provides a “dashboard” to view Parent information (e.g., emails) within the Organization; it cannot access Family Accounts, or match or recommend families for carpools. Authority to create this Account shall be determined by the appropriate individual at the Organization.
3.5.2. Authority; Consent.
184.108.40.206. Individual Users. By accessing or using the Services in any way, you are representing that you have the authority and permission to enter into the Terms on your own behalf and to use the Services as contemplated hereunder, including without limitation any consent necessary to use the Services in connection with any Family.
220.127.116.11. Use By or on Behalf of an Organization. If you are using or accessing the Services on behalf of an Organization, in addition to being an eligible individual user (as set forth above), you must also have the authority and permission to enter into the Terms on behalf of the Organization and to use the Services on such Organization’s behalf as contemplated hereunder, including without limitation any consent necessary to use the Services in connection with any particular families. In such cases, the term “you” as used herein shall also refer to such Organization. Your Organization shall also be responsible for any activities, including any violation of the Terms, that occur under your Account and any Accounts created using your Account.
3.5.3. Changes in Eligibility. In the event that you are no longer (a) employed by your Organization (or another Organization through which you receive Services) or (b) otherwise authorized to view or use family records, you (i) must notify GoKid immediately of such change and (ii) are not permitted to continue to view or use your Account.
3.5.4. Families With Children Under 13. If you use the Services with family members under 13, you represent and warrant that (a) you are a Parent or Administrator at an Organization, and (b) you are an Administrator that has been accurately identified as such with the Organization in your Registration Data.
3.6. Accounts for Families.
3.6.1. GoKid Connect Accounts. “GoKid Connect” Accounts are for use by Families who receive the Services through a specific Organization. The Organization typically provides GoKid with Family data, and GoKid will then email the Parents for verification purposes. To create a GoKid Connect Account, a Parent must follow the registration procedures described in Section 3.3 above and the verification email. You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to register for an Account.
User Code of Conduct.
You may not assign or otherwise transfer your Account to any other person or entity. As a condition of use, you agree not to use the Services for any purpose that is prohibited by the Terms or by applicable law. Do not post, or permit others to post, Content on the Services or on your profile that (a) encourages illegal activities, is fraudulent or tortious or is unlawful; (b) insults, defames, harasses or threatens others; (c) violates the copyright or intellectual property or privacy rights of others; (d) contains obscene material; (e) harms or impersonates others; or (f) advertises or sells a product or service. Do not attempt or engage in any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing” or “crashing” the Services.
5.1. License to User Content. Except with respect to Family Data, which shall be governed by the license set forth in Section 5 of these Terms, by submitting, providing, uploading, posting, e-mailing, transmitting or otherwise making available (“Make Available”) any Content to GoKid, including on or through the Services (such Content, your “User Content”), you grant to GoKid a limited, nonexclusive license to view, download, reproduce, modify, create derivative works of, distribute and display such User Content in connection with providing the Services.
5.2. Responsibility. You acknowledge that you, and not GoKid, are entirely responsible for all User Content you Make Available through the Services, and that other Users of the Services, and not GoKid, are similarly responsible for all User Content they Make Available through the Services. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services. You agree that GoKid will not be responsible for any liabilities incurred as the result of such interaction. You use all User Content and interact with other Users at your own risk.
5.3. No Obligation to Monitor Content. You acknowledge that GoKid has no obligation to review, monitor or pre-screen Content on the Services, although GoKid reserves the right in its sole discretion to review, monitor, pre-screen, refuse, modify, or remove any Content (a) that violates any law or regulation; (b) that violates these Terms; (c) that otherwise creates or may create liability for GoKid; or (d) for any other reason GoKid determines in its sole discretion. Except as expressly set forth in these Terms, GoKid does not approve, endorse or make any representations or warranties with respect to User Content or Family Data.
5.4. Security. Although GoKid takes security very seriously and works very hard on behalf of Family and Organization privacy, including by using various industry standard measures to protect Content on the Services, no method of transmission or electronic storage on the internet is 100% secure. Therefore, GoKid cannot guarantee the security of any User Content. Except as expressly set forth herein or otherwise agreed to by GoKid in writing, (a) GoKid has no obligation to store any User Content and (b) GoKid has no responsibility or liability for (i) the deletion or accuracy of any Content, including User Content, (ii) the failure to store, transmit or receive transmission of Content, including User Content, or (iii) the security, privacy, storage or transmission of other communications originating with or involving use of the Services.
6.1. General. “Family Data” includes all data that personally identifies individuals, such as names, addresses, phone numbers, usernames, and passwords, or any other non-public information about a Family, but does not include De-Identified Data (as defined below). GoKid will only collect and use Family Data as necessary to fulfill its duties and provide and improve the Services.
6.3. Disclosure of Family Data by Organizations and Administrators. Administrators using GoKid are solely responsible for ensuring that you and your Organization are compliant with all applicable laws and regulations related to your disclosure of Family Data and other Family information (“Family Records”) to GoKid in connection with the Services. Without limiting the generality of the foregoing, for all Family Records disclosed to GoKid, you represent and warrant, to the extent required by applicable law, that your Organization has (a) notified such Families’ of your use of third party services, including GoKid, and the potential disclosure of Family Records in connection with such use and (b) obtained the appropriate consent(s) from Parents.
6.4. License to Family Data. By making available any Family Data to GoKid, including on or through the Services, you grant to GoKid a nonexclusive license to view, download, reproduce, modify, create derivative works of, distribute and display Family Data solely for the purposes of (a) providing the Services and (b) creating, using, and disclosing De-Identified Data about Families for product development, research, or other purposes.
6.5. Storage and Processing of Data. GoKid will store and process all Family Data in accordance with industry standard practices. This includes appropriate administrative, physical and technical safeguards to secure Family Data from unauthorized access, disclosure and use. GoKid shall conduct periodic risk assessments and use commercially reasonable efforts to remediate identified security vulnerabilities. GoKid will promptly notify the relevant Organization in the event of a security or privacy incident or breach of personal information involving such Organization’s Users.
6.6. Protection of Family Data by GoKid.
6.6.1. No Sale or Trade of Family Data. GoKid will not (a) sell or trade Family Data; (b) use any Family Data to advertise or market to Families; or (c) use Family Data except as expressly stated herein. From time to time, GoKid may direct advertising or marketing to Organizations but shall de-identify any Family Data used in connection with such marketing efforts.
6.6.2. Organization Requests. GoKid will make Family Data available upon a verified request by the Organization or Administrator who provided such Family Data or who would otherwise have verified authority to receive such Family Data.
6.6.3. Data Mining. GoKid does not scan Family Data for the purpose of advertising or marketing to Families (also known as “Data Mining”).
6.6.4. Return/Destruction of Family Data. When Family Data is no longer needed for the provision of the Services and the user has deleted all of his or her Accounts, at the request of the Organization or Family, as applicable, GoKid will destroy all Family Data in its possession, and in the possession of any subcontractors or agents to which GoKid transferred Family Data, or transfer such Family Data to the requesting Organization, if legally .
6.6.5. Subcontractors. GoKid may rely on one or more subcontractors to perform the Services. Upon request, GoKid agrees to share with you the names of subcontractors that have direct access to Family Data Made Available by you. All subcontractors and successor entities of GoKid will be subject to the protections for Family Data set forth in these Terms.
6.7. Intellectual Property Rights. All intellectual property rights in Family Data not granted herein shall remain the exclusive property of the Organization or Family, as applicable.
Payment for Certain Premium Features; Cancellation; No Refunds.
Certain features of the Services require premium access (“Premium Features” or “GoKid Pro”) and may require payment from Organizations or Families.
7.1. Ordering Premium Features. You may place orders for the Premium Features by following the directions on the Website, App, or GoKid Connect or otherwise contacting GoKid. The Premium Features are subject to the restrictions set forth on the applicable order page. GoKid may change the pricing for the Services, including Premium Features, (from time to time in its sole discretion) by updating the Website, App, or GoKid Connect, as applicable, and without any additional notice to you, provided that any changes will not take effect until your subscription renews.
7.2. Payment Terms. If you order Premium Features, you agree to pay the then-current applicable fee listed on the Website, App, or GoKid Connect, or as otherwise agreed to in writing by GoKid. GoKid will automatically bill your payment method submitted in ordering Premium Features on the date of activation. Except as otherwise stated herein, all payments are non-refundable. You hereby authorize GoKid to bill your payment method as described above, which may include automatic renewal and automatic payment if you select a subscription option. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties. If any fee cannot be charged to your payment method for any reason, GoKid may provide you, via email, notice of such non-payment and a link for you to update your payment information. If such non-payment is not remedied within seven (7) days after receiving such notice of non-payment, then GoKid may suspend the applicable Premium Features.
7.3. Promo Codes. GoKid may, in its sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a third-party provider’s services, subject to any additional terms that GoKid establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by GoKid; (iii) may be disabled by GoKid at any time for any reason without liability to GoKid; (iv) may only be used pursuant to the specific terms that GoKid establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. GoKid reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that GoKid determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
7.4. Third-Party Payment Processing. Payments for Premium Services are processed via either Apple (if purchased through the App) or Stripe (if purchased through the Website), and are subject to Apple’s and Stripe’s terms and conditions, which we strongly encourage you to review. Apple’s terms may be found at: https://www.apple.com/legal/internet-services/itunes/us/terms.html , and Stripe’s terms may be found at: https://stripe.com/us/checkout/legal.
7.5. Cancellation. Subscriptions to GoKid’s Premium Features are available in either monthly or yearly auto-renewing subscriptions. You can cancel your subscription at any time, but you must cancel your subscription before it renews for a subsequent period in order to avoid being charged for the next period’s subscription fee. If you cancel your subscription, the cancellation will become effective at the end of the then-current subscription period. If Apple is your subscription provider, you will need to cancel your subscription through Apple. If you obtained your subscription through the Website (using Stripe), you will need to cancel your subscription directly on the Website.
7.6. No refunds. Refunds will not be provided for any subscription. We do not provide credit, refunds, or prorated billing for subscriptions that are cancelled mid-period. In such circumstances, you will continue to have access to your subscription until the end of the then-current billing cycle. If, within three (3) days of subscribing for a GoKid Pro account, you find that you are unable to access the app, and no efforts on the part of GoKid are able to remedy this situation, a refund will be considered. Please note that each circumstance is unique and election to make such an offer in one instance does not create obligation to do so in another.
8.1. Services. Except with respect to your User Content, you agree that GoKid and its licensors and suppliers own all rights, title and interest in the Services. GoKid’s name and other related logos, service marks and trade names used on or in connection with the Services are the trademarks and intellectual property of GoKid and may not be used without GoKid’s permission. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
8.2. Ownership of Content. Except with respect to your User Content and Family Data, you agree that you have no right or title in or to any Content that appears on or in the Services. GoKid does not claim ownership of your User Content or Family Data. When you as a User post or publish your User Content on or in the Services, you represent that you have the authority to grant the aforementioned license to GoKid.
8.3. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to GoKid through its suggestion or similar pages (“Feedback”) is done on a non-confidential basis and that GoKid has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to GoKid a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, all Feedback, and to sublicense the foregoing rights.
Apple Device and Application Terms.
If you are accessing the Services via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store, the following shall apply:
9.1. Both you and GoKid acknowledge that these Terms are concluded between you and GoKid only, and not with Apple, and that Apple is not responsible for the application or the Content;
9.2. The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
9.3. You will only use the application in connection with an Apple device that you own or control;
9.4. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the application;
9.5. In the event of any failure of the application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the application;
9.6. You acknowledge and agree that GoKid, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the application;
9.7. You acknowledge and agree that, in the event of any third party claim that the application or your possession and use of the application infringes that third party’s intellectual property rights, GoKid, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
9.8. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
9.9. Both you and GoKid acknowledge and agree that, in your use of the application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
9.10. Both you and GoKid acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
Third Party Services and Content; Network Access and Devices.
10.2. Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. GoKid does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You agree to indemnify, defend, and hold GoKid, its affiliates, and its and their officers, directors, shareholders, employees, agents, representatives, and licensors (collectively “GoKid Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your User Content or any Family Data Made Available by you; (b) your use of, or inability to use, the Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations. GoKid reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with GoKid in asserting any available defenses. You agree that the provisions in this section will survive termination of the Terms.
DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. GOKID PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GOKID PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SUITABLE, SECURE OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. GOKID DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF OTHER USERS/DRIVERS. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
LIMITATION OF LIABILITY.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL GOKID PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES; ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT GOKID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICES; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SERVICES; OR (D) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. UNDER NO CIRCUMSTANCES WILL GOKID PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (I) FIFTY DOLLARS ($50); OR (II) THE AMOUNT ACTUALLY PAID BY YOU TO GOKID HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE YOU FIRST BRING A CLAIM. GOKID PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION OR FAILURE TO STORE ANY CONTENT OR USER COMMUNICATIONS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GOKID AND YOU.
Term and Termination.
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms. If you have materially breached any provision of the Terms, or if GoKid is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), GoKid has the right to immediately suspend any Services and licenses provided to you under this Agreement (“Suspension”). Following Suspension, GoKid and your Organization, as applicable, will work together in good faith to determine whether to reinstate your access to (and any associated licenses to) the Services or permanently terminate your Services. Notwithstanding the foregoing, GoKid may terminate your Account immediately in its sole discretion in the event that you violate any restriction of these Terms after GoKid makes reasonable efforts to provide you with notice of a previous violation. You agree that GoKid shall not be liable to you or any third party for any Suspension or termination of your Account made in accordance with the Terms. Termination of any Services includes removal of access to such Services and barring of further use of the Service. Termination of all Services also may include deletion of your password and your User Content and, if applicable, Family Data. Upon termination of any Service, your right to use such Services will automatically terminate immediately. GoKid will not have any liability whatsoever to you for any Suspension or termination, including for deletion of your User Content and, if applicable, Family Data, and you shall not be entitled to any refund. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, indemnification, warranty disclaimers, and limitation of liability.
16.1. Release. Except to the extent prohibited by applicable law, you hereby release GoKid Parties and their successors from claims, demands, all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Users or third party services and content of any kind, arising in connection with or as a result of the Terms or your use of the Services. You hereby waive California Civil Code Section 1542, or any similar law of another jurisdiction, which states in substance, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
16.2. DISPUTE RESOLUTION. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from JAMS. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
(b) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(c) You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(d) All controversies, disputes, demands, counts, claims or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim or cause of action) between you and GoKid and our employees, agents, successors or assigns, regarding or relating to these the Services or these Terms, shall exclusively be settled through binding and confidential arbitration.
(e) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (1) and (2) in the paragraph 16.2(c) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with these Terms, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 16.2(c) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in New York, New York.
(g) Notwithstanding any provision in these Terms to the contrary, if we seek to terminate the Dispute Resolution section as included in these Terms, any such termination shall not be effective until 30 days after the version of these Terms not containing the agreement to arbitrate is posted to the Website, and shall not be effective as to any claim of which you provided GoKid with written notice prior to the date of termination.
(h) For more information on JAMS, its Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
(i) All controversies, disputes, demands, counts, claims or causes of action between you and GoKid and our employees, agents, successors, or assigns, regarding or relating to these the Services or these Terms, shall exclusively be governed by the internal laws of the State of New York, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
16.3 Notices. Where GoKid requires that you provide an e-mail address, you are responsible for providing GoKid with your most current e-mail address. In the event that the last e-mail address you provided to GoKid is not valid, or for any reason is not capable of delivering to you any notices required permitted by the Terms, GoKid’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. GoKid may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to GoKid, with such notice deemed given when received by GoKid, at any time by first class mail or pre-paid post to GoKid Corporation, Attn: User Notices – Legal, 460 Park Avenue South, 12th floor, New York, NY 10016.
16.4. Miscellaneous. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without GoKid’s prior written consent, and any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void. GoKid may assign this Agreement without your consent. GoKid shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Unless you have entered into a separate Organization license, the Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.