Curious Kiwi Co.
Terms of Service
Last Updated: May 24, 2018
Welcome to Precious!
These Terms of Service (together with all terms and conditions incorporated by reference, the “Terms”) govern use of all Curious Kiwi Co. apps, websites, and services related to the Precious products and services (the “Services”) that are owned and operated by Curious Kiwi Co. and our affiliates (collectively, “Precious”, “we”, or “us”).
These Terms are a legally binding agreement between Precious and you, the user of the Services and/or the parent or guardian of any minor above the age of 13 whom you permit to use the Services (“you”). By using the Services, you agree to these Terms. You may not use the Services without agreeing to the Terms.
Please read these Terms CAREFULLY, as the they may have changed. Please note that we may revise and update these Terms from time to time in our sole discretion. In the event of a material change, we will notify you by posting the updated Terms on this page and, if you create an Account, by push notification to your Account, after which you must affirmatively accept the updated Terms in order to continue using the Service. As above, you may not use the Services without agreeing to the Terms.
Note: These Terms contain an arbitration clause and a class action waiver clause (please see Section 13 below) that governs how claims and other disputes Precious and you have against each other with respect to the Services are resolved. By using the Services, you agree to be bound by the terms of those provisions which, among other things, requires the use of arbitration on an individual basis to resolve claims and other disputes rather than jury trials or class actions in a court of law. Therefore, you and Precious waive any right to participate in Jury Trials or Class Actions in a court of law with respect to claims or other disputes related to these Terms or the Services.
- Use of the Services.
The Services are a collection of products and services that allow you to store, share, preserve and organization information (such as photos, videos, voice and written notes, and other media) about your child’s or children’s lives as they grow up.
Anyone who uses the Services, whether individually or with the permission of their parent or guardian pursuant to these Terms, is a “User”. Users under the age of 18 must abide by the terms and conditions in these Terms regardless of whether or not they are legally bound by these Terms or made party hereto. If you are a parent or guardian who gives permission to a User under the age of 18 to use the Services, you agree to be legally responsible and liable for all acts and omissions of such User as though you performed them yourself.
You may only use the Services for your personal, noncommercial use. Any other use is prohibited.
- Your Account and Contact Information
When creating Accounts, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your Accounts. You must take all reasonable measures to secure Accounts for which you are responsible. Precious will not be liable for any losses caused by any unauthorized use of Accounts.
- Limited License Grant
Subject to these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only (and for no other use) and as permitted by the features of the Service and subject to the restrictions in these Terms. Precious reserves all rights not expressly granted herein in the Service and the Company Content (as defined below). Precious may terminate this license at any time for any reason or no reason.
You may not copy, modify, distribute, sell, or lease any part of our Services, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit these restrictions or you have our written permission to do so.
- Rights You Grant to Us Regarding Your User Content
Certain features of the Services allow Users to submit, post, display, provide, or otherwise make available content such as profile information, images comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”).
Please note that certain features of the Services may provide functionality for the automatic creation of User Content, such as photos, videos, slideshows, photo collages, or other media that is created by automatically through the Service. This is done by accessing files on your device such as data files, photos, videos, messages and any other like materials stored or accessible on or by the device you use to access the Services (“Device Content”). By using the Services, you agree to allow us to automatically access Device Content that you make available to us through your Account’s settings for purposes consistent with these Terms, and you agree that any User Content created from Device Content will be subject to the same license rights and obligations in these Terms as other User Content.
We have the right (but not the obligation) in our sole discretion to remove any User Content that is shared via the Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Services, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Precious a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Precious’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under these Terms.
In these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you represent and warrant the following:
- You have the consent of each and every identifiable natural person and/or the parent or guardian of that natural person (if such identifiable natural person is under the age of 18) in the User Content to use such person’s name or likeness in the manner contemplated by these Terms.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
- Your User Content and Precious’s use thereof as contemplated by these Terms will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- Precious may exercise the rights to your User Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
We take no responsibility and assume no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service. You agree that we will not be liable for any damages you allege to incur as a result of or relating to any User Content.
- Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Precious and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by these Terms is strictly prohibited.
We may terminate your use of the Services if you violate any of the above or otherwise breach these Terms.
- Pricing and Subscriptions
Certain features of the Services are free, and certain features of the Services are only available to Accounts who purchase a subscription for access to those features (“Subscription”). You may begin your Subscription with a free seven-day trial period, during which you may cancel the Subscription at any time and not be charged by us. If you do not cancel the Subscription within 24 hours prior to the end of the seven-day trial period, you will be automatically charged in accordance with the payment terms presented to you at the time you agreed to begin the Subscription.
We partner with Apple, Inc.’s iTunes platform (“iTunes”) to facilitate Subscriptions. All payments will be charged to your credit card through your account with iTunes at confirmation of the purchase of your Subscription. Your Subscription will automatically renewed unless you cancel your Subscription at least 24 hours prior to the end of the Subscription. Subscriptions must be managed through your iTunes account, including cancellations. For additional information on iTunes and managing your Subscription through iTunes, please see https://support.apple.com/en-us/HT202039.
We do not provide refunds for cancelled Subscriptions.
- Privacy and Security
We use commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- Third Party Links
- DMCA and Copyright Complaints
We take intellectual property rights seriously. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and, at our sole discretion, access to the service for users who are deemed to be repeat infringers.
Precious does not endorse any Submission or any opinion, recommendation, or advice expressed therein, and Precious expressly disclaims any and all liability in connection with Submissions. Precious does not permit copyright infringement or infringement of intellectual property rights on its Services. We will remove all any content posted on or related to our Service if properly notified of these infringements, and may do so at our sole discretion, without prior notice to users at any time.
Under the Digital Millennium Copyright Act of 1998 (the “DMCA”), it is our policy to respond to copyright owners who believe material appearing on the Services infringes their rights under US copyright law. If you believe that something appearing through the Services infringes your copyright, you may submit a notification pursuant to the DMCA by providing our Copyright Agent (information below) with the following information in writing (please see 17 U.S.C 512(c)(3) for further detail):
- Your address, telephone number, and email address;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the alleged infringing material is located;
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
If you believe that such a notice was wrongly filed against you, the DMCA allows you to send a counter- notice to our Copyright Agent which shall include the following information:
- Your name, address, telephone number, and e-mail address,
- A description of the Submission that has been removed or to which access has been disabled;
- A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content;
- A statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement; and
- Your physical or electronic signature.
Be aware that there can be substantial penalties for false claims. Send notices and counter-notices to us at Copyright, Curious Kiwi Co., 156 2nd Street, San Francisco, CA, 94105, or email: firstname.lastname@example.org. If you need to contact us for any other reason, please contact us at email@example.com or write us at Customer Service, Curious Kiwi Co., 156 2nd Street, San Francisco, CA, 94105.
You agree to defend, indemnify and hold harmless Precious and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services, including any data or content (including User Content) transmitted or received by you; (ii) your violation of any term of these Terms; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your Accounts; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service via your Accounts.
- Disclaimer of Warranties
THE SERVICE AND ANY OTHER SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE ARE PROVIDED TO YOU ON AN AS IS OR AS AVAILABLE BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. WE DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE.
- Limitation of Liability
IN NO EVENT WILL CURIOUS KIWI CO. BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY OTHER SERVICE AND/OR CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL LIABILITY FOR ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNT YOU PAID TO CURIOUS KIWI CO. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Arbitration; Class Action Waiver
You and Precious agree that, except as provided below, all disputes, controversies and claims related to these Terms (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth herein and the JAMS Rules, the terms herein will control and prevail.
Except as otherwise set forth herein, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Precious will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (a) you and Precious may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
The arbitration will be conducted in San Francisco, California, unless the parties agree to video, phone and/or internet connection appearances.
You and Precious agree that any arbitration shall be limited to the Claim between Precious and you individually. YOU AND PRECIOUS AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
You and Precious agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Precious’ intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If Precious initiates arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Precious without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
These Terms, together with any amendments and any additional agreements you may enter into with Precious in connection with the Service, shall constitute the entire agreement between you and Precious concerning the Service. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Questions? Please contact us at firstname.lastname@example.org.