BY USING THE APP, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND. SEE SECTION 19 BELOW.
1. Description of Services
The App has various features and functionality that may include the ability to send and share personal information and your child’s or children’s information with people known to you through the App’s functionality. The Company may change, suspend, or discontinue your use of the App for any reason, at any time, including the availability or unavailability of any feature or functionality. The Company may also impose limits on certain features and services or restrict your access to parts, or all, of the App without notice or liability.
2. Account Activity/Retention of Your Information
Even if you delete or edit information on your mobile device, all information generated through the App will be retained during the length of time you have an active account, including but not limited to, posted messages, photos, and requests, whether received or sent within each six month period (“Account Activity”) and for a period of time after termination of your account, as determined by the Company (“Retention Term”). If there is no Account Activity for six months or longer, you agree that the Company has no obligation to contact you or advise you that your account has terminated or is scheduled to be terminated due to inactivity, and that in such event Child Emergency Plan, without liability, has the right to terminate your account and permanently delete all records and data associated with your account. For the Retention Term, you unconditionally and irrevocably grant the Company the authorization to retain any data or records created by you, including all information created by you.
3. Disclosure of Your Information
Because Child Emergency Plan archives all information generated by users (you and others), any information related to your account may be retrieved by you or your child’s (or children’s) other parent or legal guardian, provided the person requesting the information has an active account at the time of the request or the account is within the Retention Term.
Like any company, Child Emergency Plan is required by law to respond to subpoenas, which means any information generated within your account will be disclosed in accordance with a court order. Confidential health information that you enter in the App may be subject to disclosure in connection with a subpoena or court order, as described in the Child Emergency Plan policy relating to subpoenas and court orders. You agree to hold harmless, Child Emergency Plan, for any information related to your account that Child Emergency Plan shares pursuant to any subpoena or court order (“Compelled Disclosure”). Some investigations conducted by government agencies (for example a law enforcement agency), may require that the Company not inform you that such Compelled Disclosure is in process, and you agree to hold Child Emergency Plan harmless for complying with such order.
4. Trademark and Copyright Information
All App material, including, but not limited to, text, data, graphics, logos, button icons, images, audio and video content, Company links, digital downloads, data compilations, and software (collectively “App Material”) is owned by, controlled by, licensed to, or used with permission by the Company and is protected by copyright, trademark, and other intellectual property rights. The App material is made available solely for your personal or commercial use and, except for being used within the App, may not be copied, reproduced, republished, modified, uploaded, posted, transmitted, or distributed in any way, including by e-mail or other electronic means, without the express prior written consent of the Company in each instance.
5. Limited License
6. User Content
7. Third Party Products.
The App may make available listings, descriptions, and images of goods or services, as well as references and links, to third party products or services (“Products”). Such Products may be made available for any purpose, including general information purposes. The availability through the App of any listing, description, or image of a Product does not imply our endorsement of such Product or affiliation with the provider of such Product. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product is subject to change at any time without notice. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Product.
9. Content by Email
The Company alone will maintain and support the App as it sees fit and Apple, Inc. has no obligation whatsoever to furnish any maintenance or support services with respect to the App. Please send all inquiries to support@Child Emergency Plan.com.
11. No Financial, Legal, or Other Advice.
The App may provide links to, or information about, legal counsel. The App does not constitute or provide any financial, legal, accounting, or other advice, nor does it endorse any legal or other professional.
12. No Warranties.
YOU AGREE THAT YOUR USE OF THE APP, INCLUDING WITHOUT LIMITATION, ANY ARRANGEMENTS MADE BETWEEN YOU AND ANY OTHER USER OF THE APP OR THROUGH ANY CONTENT OR USER CONTENT IS AT YOUR SOLE RISK AND YOU ACKNOWLEDGE AND AGREE THAT THE APP AND ANYTHING CONTAINED THEREIN, INCLUDING, BUT NOT LIMITED TO, CONTENT, USER CONTENT, SOFTWARE, SOFTWARE APPLICATIONS, THIRD PARTY SOFTWARE ARE PROVIDED "AS IS" AND THAT THE COMPANY MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE ITEMS, INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
While we try to maintain the timeliness, integrity, and security of the App, we do not guarantee that the App is or will remain updated, complete, correct or secure, or that access to the App will be uninterrupted. The App may include inaccuracies, errors, and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the App. If you become aware of any such alteration, contact us at support@Child Emergency Plan.com with a description of such alteration and its location on the App.
13. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, THE COMPANY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE APP OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE APP OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE APP; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF THE COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (A) $10.00; OR (B) THE TOTAL AMOUNT YOU PAID TO COMPANY DURING THE PAST YEAR, IF ANY. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT.
ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH THE COMPANY AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
BY ACCESSING THE APP, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to defend, indemnify, and hold harmless, the Company and the Affiliated Entities from and against any claims, actions, demands, expenses, liabilities, costs, debts, and damages (including legal and professional fees) asserted by any third party arising from your use or attempted use of the App (including all User Content), any third party’s unauthorized access to the App via your Registered Account, or your actual or alleged violation of any law, including without limitation, laws governing intellectual property or privacy rights, or your violation of the terms and conditions of this Agreement.
15. Rules of Conduct.
By generating User Content via the App, including without limitation photographs and child-related information, you expressly agree to:
15.1 not upload, post, submit, or otherwise distribute or facilitate distribution of any content including, without limitation, text, communications, software, photographs, images, sounds, data, or other information that:
15.1.1 contains profane or vulgar language;
15.1.2 contains libelous, defamatory, slanderous, or otherwise untruthful remarks about a person or the company, or post or upload copyrighted material from any other source, or invade any person’s privacy for which you may be held legally liable;
15.1.3 is insulting or argumentative without merit, unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, or fraudulent;
15.1.4 contains explicit or graphic words, descriptions, or accounts of sexual acts;
15.1.5 uses vulgar language in the creation of a user name or otherwise violates the App rules or policies or these Rules of Conduct;
15.1.6 harasses, degrades, or intimidates an individual or group of individuals;
15.1.7 infringes any patent, trademark, trade secret, copyright, right of publicity, or any proprietary right of any party;
15.1.8 is related to illegal substances, products, or activities, including but not limited to drugs, prostitution, illegal firearms, or weapons;
15.1.9 breaches the terms or conditions of any court order or confidentiality or non-disclosure agreement to which you may be subject;
15.1.10 constitutes unauthorized or unsolicited advertising, including junk, bulk, spam or spam e-mail, any other form of unauthorized solicitation, or any form of lottery or gambling;
15.1.11 contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functionality of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of the Company, its users, or any third party;
15.1.12 attempts to, or is intended to, in any way unfairly, falsely, or fraudulently influence, modify, manipulate, or alter data or information, as determined solely by the Company;
15.1.13 impersonates any person or entity, including any employee or representative of the Company or the Company’s services.
15.3 Collection of information about the users of this App through any means whatsoever or using such information for the purpose of soliciting business of any kind or transmitting or facilitating transmission of unsolicited bulk electronic communications is strictly prohibited.
15.4 Other than as specified hereunder, the Company does not accept any ideas, text, or content considered to be proprietary. Consequently, you expressly agree that, except for User Content, any material you submit to the Company in any format whatsoever, will be deemed an unrestricted, irrevocable, and perpetual grant of a payment-free and royalty-free, non-exclusive right and license to use, reproduce, modify, display, transmit, adapt, publish, translate, create derivative works from and distribute these materials throughout the universe in any medium and through any methods of distribution, transmission, and display whether now known or hereafter devised, or refrain therefrom in the Company’s sole discretion. Additionally, you represent and warrant that you hereby irrevocably waive any moral rights in regard to any material or User Content you submit to the App and you also agree that the Company is free to use, for any purpose, any ideas, concepts, know-how, or techniques that you send it, whether intended for the Company or not, without obligation to you of any kind whatsoever.
15.5 Using the App generally involves accessing user-posted messages and content, however, the Company does not review postings, nor does the Company confirm the accuracy or validity of any User Content posted. The Company may, but does not have the obligation to actively monitor the contents of the postings generated by any user or third party, nor is the Company responsible for any content not directly created or generated by the Company. We do not endorse, nor do we warrant the validity, accuracy, completeness, or usefulness of any content or User Content displayed or posted. User Content does not represent the views of the Company, its subsidiaries, or any person or property associated with the Company or the App. If you feel that any posting is objectionable, we encourage you to contact us by email at support@Child Emergency Plan.com. We will make every effort to remove objectionable content if we deem removal to be warranted, however we do not have an obligation to do so. Removal or editing of any Content is a manual process and might not occur immediately or at all. Except as otherwise written in this Agreement, the Company reserves the right to remove, or not remove, any content, including without limitation, User Content, for any (or no) reason whatsoever. You remain solely responsible for your User Content, and you agree to indemnify and hold harmless, the Company and its agents, with respect to any claim based upon the transmission or attempted transmission or display of such. The Company reserves the right to suspend or ban users posting what the Company deems inappropriate content at any time without notice, however, the Company is not responsible for any failure or delay in removing or editing such content.
16. Subscription Fees
You agree that the Company may reasonably contact you with a reminder that your subscription will soon be coming due. Due to the Company’s cost of data storage allocation, account setup, and administration, you agree that all fees paid in advance are non-returnable and will not be refunded or pro-rated for refund, unless your account is terminated by the Company. If you cancel service or do not renew a subscription, you will still be able to access your account and/or features for the subscription time remaining on your paid account.
We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement on the App or on the Company’s website located at www.Child Emergency Plan.com (“Website”). Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the App following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the App (including access to the App via any third-party links); charge, modify or waive any fees required to use the App; or offer opportunities to some or all App users.
19. No Waiver
No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition under this Agreement, and no act, omission, or course of dealing or course of performance by the Company, operates as a waiver or estoppel of any right, remedy or condition, nor shall the waiver by the Company of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
20. Governing Law; Arbitration.
We hope we never get into any disputes with you but just in case, here are some things that would apply:
(c) ARBITRATION RULES. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
(d) ARBITRATION PROCESS. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form for consumer Demand for Arbitration at www.adr.org). The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Indiana and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
(e) ARBITRATION LOCATION AND PROCEDURE. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. Unless you and the Company otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and the Company submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(f) ARBITRATOR'S DECISION. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the 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.
(g) FEES. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
(i) NO CLASS ACTIONS. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS/CONSUMERS OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
21. General Provisions
22. Entire Agreement