End User License Agreement

YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS BEFORE UTILIZING THE SERVICE. BY UTILIZING THE USERNAME AND PASSWORD TO ACCESS THE SERVICE YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS SERVICES AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT ACCESS THE SERVICE. BY UTILIZING THE USERNAME AND PASSWORD YOU REPRESENT AND WARRANT THAT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND NO OTHER PERSON OR ENTITY, AND THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.

This Services Agreement (“Agreement”) is effective as of the day you first access the Service (“Effective Date”), by and between KidsLink, Inc. (“KidsLink”), a Delaware corporation, and you (“Customer” or “you”). In consideration of the promises and the mutual obligations of the parties set forth herein, and for other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. License to Use Service. KidsLink offers an internet-based and mobile device application-based subscription service through which individuals may document, manage, and share personal details about their lives and the lives of their children (the “Service”). During the Term, Customer hereby subscribes to the Service and KidsLink hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable license to access and use the Service solely for Customer’s personal use for purposes of documenting, managing, and sharing personal details about their lives and the lives of their children. Customer is solely responsible to input any data or information it requires to make the Service useful for Customer’s own use. KidsLink may update, enhance or modify the Service from time to time to include new features, improve functionality, and address bugs or customer feedback. KidsLink will maintain the Service on servers or equipment owned by KidsLink or operated on KidsLink’s behalf. Customer shall not be entitled to receive a copy of any software related to the Service, but rather will access and use the Service via an internet connection or mobile device application. Such applications may be subject to additional terms and conditions.
  2. Reservation of Rights. KidsLink reserves all rights not expressly granted in Section 1. Customer may not (a) copy, modify, adapt, or create derivative works of (i) the Service or (ii) related end user instructions for use and operation of the Service that are made available by KidsLink electronically or otherwise (“Documentation”); or (b) remove any copyright or other proprietary rights notices therefore. KidsLink reserves the right to immediately suspend or terminate access by Customer if Customer’s use represents a breach of the terms and conditions of this Agreement, without prejudice to any other remedies available to KidsLink. All rights granted herein are a license, not a sale.
  3. Login Information. Each User will be required to obtain and provide password and login identification (“Login Information”) in order to access the Service. Customer is fully responsible for all uses of the Login Information. Customer will (i) protect the confidentiality of all Login Information and any computer, mobile device or other device upon which the Login Information is stored, and (ii) notify KidsLink of any breach of the confidentiality of any Login Information. Customer will not provide the Login Information to any other person or entity. Customer will be solely responsible for all actions of any individual accessing the Service, whether or not authorized by Customer, using Customer’s Login Information or any computer, mobile device or other device upon which such Login Information is stored. KidsLink may modify the End User Terms of Use from time to time by making the updated End User Terms of Use available for viewing via the Service. KidsLink recommends that you do not save or otherwise store your Login Information on your computer, mobile devices, or other devices.
  4. Customer Obligations
    1. Customer represents and warrants that (i) Customer is authorized to provide all information and data Customer provides to KidsLink or otherwise submits or makes available via the Service (“Customer Content”); (ii) Customer will comply with all applicable laws, rules and regulations regarding Customer Content and use of the Service, including laws involving private data and any applicable export or import controls, laws or regulations; and (iii) the use of Customer Content by KidsLink in providing the Service to Customer or as otherwise authorized herein will not infringe the copyrights, patents, trademarks, service marks, trade secrets or confidential information of any third party or constitute a defamation, invasion of privacy, or violation of any right of publicity or other third party right. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Content. In the event KidsLink receives any notice or inquiry from a third party regarding the authority of Customer to use or provide any Customer Content made available through the Service, Customer will cooperate with KidsLink to provide all reasonably necessary or appropriate information to respond to such communication.
    2. KidsLink acknowledges that the Customer Content constitutes Proprietary Information of Customer. KidsLink acknowledges and agrees that the Customer Content shall remain the sole and exclusive property of Customer. Customer hereby grants KidsLink a limited license to access, copy, display, reproduce, and transmit the Customer Content for the purpose of providing the Service, providing advertising and other promotional content to Customer, performing KidsLink obligations under this Agreement, and as otherwise authorized by Customer. Customer warrants that Customer has all rights necessary to grant the foregoing limited license. KidsLink may use information about Customer and the Customer Content in connection with marketing and advertising certain services of KidsLink or its business partners, including without limitation while Customer is accessing the Service. KidsLink may use the Customer Content to improve the Service, determine usage of the Service, and use the Customer Content in an aggregated manner that is not directly linked to any Customer specific transaction in connection with KidsLink’s business, including without limitation disclosing such aggregated information to KidsLink’s business partners and customer prospects and as otherwise disclosed in the KidsLink Privacy Policy. KidsLink may share aggregated information that KidsLink collects with its business partners regarding data collected or received through the Service. The aggregated information that KidsLink provides is not directly linked to any personally identifiable information, specific customer or specific transaction.
    3. Customer agrees not to submit any registration information or any other information or material that is incorrect, illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). In addition, KidsLink may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the KidsLink website. Customer shall be bound by, and comply with, any such rules. KidsLink is entitled to investigate and audit Customer and the information and material submitted by Customer to verify whether Customer has submitted any Objectionable Matter, and Customers may alert KidsLink of content that may consist of Objectionable Matter by emailing abuse@mykidslink.com. KidsLink may remove any Customer Content that violates any KidsLink rules regarding appropriate use or any Objectionable Matter and may terminate a Customer’s access to the system on the basis of Objectionable Matter.
    4. Customer agrees that the Service will not be accessed outside the United States without the prior written approval of KidsLink.
    5. From time to time, the Service may require Customer to obtain a license for third party materials to access or use certain functionality. KidsLink will provide Customer written notice of such requirements and identify the required third party materials.
    6. Customer acknowledges and agrees that (i) Customer’s selection of any wellness content partner does not constitute a relationship whereby personal health information is being or will be transferred but, instead, constitutes only a sponsorship relationship; and (ii) KidsLink is not responsible or liable in any way for Customer’s relationship or transactions with such wellness content partner or any other third party.
  5. Fees and Payment. The Service is currently being provided to Customer free of charge. In the event KidsLink charges for the Service or any portion thereof, the following terms and conditions of this Section 5 will apply. Customer shall pay KidsLink the applicable fees for certain services or third party applications enabled through the Service as set forth on an Order (“Fees”). “Order” means a separate document executed by Customer and accepted by KidsLink either via signature or by performance, which specifies Fees owed by Customer. The Fees will be paid to KidsLink prior to Customer having access to the Service or portion thereof to which the Fees apply. Upon Customer’s failure to pay any amounts owed under this Agreement when due, Customer hereby agrees that, in addition to any other remedies available at law or equity, KidsLink may prevent Customer’s access to the Service. Customer acknowledges and agrees that KidsLink will have no liability for any loss of the use of data resulting from its exercising the rights set forth in this paragraph.
  6. No Implied License. Other than the rights licensed to Customer hereunder, Customer has no other implied license or right of any kind regarding the foregoing. Customer shall not itself, and shall not permit any other party to, directly or indirectly, in whole or in part, (a) sublicense, distribute, lease, make available as a service bureau or otherwise allow any third parties any right or access to the Service except as expressly authorized by KidsLink; (b) disassemble, decompile, decrypt, or reverse engineer, or otherwise attempt to discover or replicate source code for the Service; or (c) build a competitive product or service. Customer acknowledges and agrees that KidsLink owns and retains all rights existing from time to time in any jurisdiction under copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights (“Proprietary Rights”) in the Service, Documentation, any training materials and any copies, modifications, adaptations, derivative works, and enhancements thereof, by whomever produced.
  7. Disclaimer of Warranty. KidsLink SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS and GUARANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE AND ANY OTHER ITEMS COVERED BY OR FURNISHED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. KIDSLINK does not warrant (A) that THE service will be uninterrupted OR error free, (B) THE ACCURACY OF ANY DATA RElATED TO THE SERVICE OR THIS AGREEMENT, OR (C) THAT THE SERVICE WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS.
  8. Term. This Agreement shall be effective as of the Effective Date and shall remain in effect for an initial term of twelve (12) months unless terminated by either party as described herein. The term of this Agreement will automatically renew for consecutive twelve (12) month periods unless either party gives thirty (30) days’ advance written notice of its intent to not renew (the initial term and each renewal term, collectively, the “Term”).
  9. Termination. KidsLink may terminate this Agreement at any time, for any reason or no reason, without prior notice to Customer. Customer may terminate this Agreement upon ten (10) days’ advance written notice to Company. Upon any termination or expiration of this Agreement, (a) all license rights shall immediately terminate and Customer shall immediately cease use of the Service; and (b) KidsLink shall destroy all personally identifiable information of Customer within thirty (30) days. Upon termination, Customer shall be solely responsible to take all actions required to maintain and access the Customer Content delivered by KidsLink to Customer. The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Content to the extent reasonable for KidsLink’s discharge of its post-termination obligations, and the following Sections: 2, 4(a), 6, 8, 9, 10, 11, 12, 13 and 14.
  10. Confidentiality.
    1. “ Proprietary Information” is, collectively and without regard to form, any third party information which either party has agreed to treat as confidential, and Confidential Information and Trade Secrets. “Confidential Information” means non-public information of value to its owner (other than Trade Secrets) and that is the subject of its owner’s reasonable efforts to maintain confidentiality thereof. Without limitation of the foregoing, the terms and conditions of this Agreement are KidsLink Confidential Information. “Trade Secrets” means information that derives actual or potential economic value because it is not generally known to, and by proper means not readily ascertainable by, others who can obtain economic value from its disclosure or use; and is the subject of commercially reasonable efforts to maintain its secrecy. Without limitation of the foregoing, KidsLink’s Trade Secrets include the Service and any source code associated with the Service.
    2. Each party shall protect the Proprietary Information of the other party with the same standard of protection and care that it uses for its own Proprietary Information, but in no event less than reasonable care and diligence. Neither party shall disclose, publish, transmit or make available all or any part of such Proprietary Information except in confidence or as otherwise expressly authorized in this Agreement.
    3. Any information will not be considered "Proprietary Information" to the extent, but only to the extent, that such information: (i) is already known to the receiving party free of any confidentiality obligation at the time it is obtained; (ii) is or becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received from a third party without restriction and without breach of this Agreement; or (iv) is required to be disclosed by law or court order. In the event that either party is required by law or court order or regulatory authority to disclose any Proprietary Information, except such disclosure may be made only after the other party has been notified and has had a reasonable opportunity to seek a court order or appropriate agreement protecting disclosure of such Proprietary Information.
    4. Additionally, your use of the Service is subject to KidsLink’s Privacy Policy, located at http://www.mykidslink.com/privacy/index.html. In the event of any conflict between the Privacy Policy and this Agreement, the terms and conditions of this Agreement will supersede the conflicting terms of the Privacy Policy.
  11. Indemnification. Customer shall indemnify and hold harmless KidsLink from any loss, damage, liability, cost or expense suffered or incurred in connection with any claim, suit or proceeding brought by a third party against KidsLink to the extent that it arises out of Customer’s provision of the Customer Content or Customer’s use, or any other person’s use through Customer’s Login Information, of the Service or any related application or functionality.
  12. Limitations of Liability. NEITHER KIDSLINK NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, RESELLERS OR REPRESENTATIVES (COLLECTIVELY, “KIDSLINK PARTIES”) SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, TIME, SAVINGS, DATA, OR GOODWILL, DAMAGES ARISING FROM USE OF OR INABILITY TO USE THE SERVICE OR ANY RELATED APPLICATIONS, PRODUCTS OR SERVICES, OR COST OF REPLACEMENT GOODS OR SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY RELATED APPLICATIONS, PRODUCTS, SERVICES OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF IT OR THEY HAS OR HAVE BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. THE MAXIMUM AGGREGATE LIABILITY OF THE KIDSLINK PARTIES IN ALL EVENTS SHALL BE LIMITED TO TEN DOLLARS ($10.00).
  13. Dispute Resolution and Arbitration. The parties agree that, except as otherwise provided below, they shall first attempt to resolve any dispute, claim or controversy relating in any way to this Agreement (a “Dispute”) between Customer and an officer of KidsLink who has authority to resolve the Dispute. If any Dispute cannot be settled in this manner within sixty (60) days of written notice being served by a party on the other party, the parties agree that the Dispute may be settled by arbitration in accordance with the Commercial Arbitration Rules of American Arbitration Association (“Rules”) in Atlanta, Georgia, with judgment upon the award rendered by the arbitrator to be entered in any court of competent jurisdiction. Any arbitrator selected pursuant to the Rules will conduct arbitration and the arbitrators will have a background or training in contract law and intellectual property. The arbitrators may award attorneys’ fees and costs to the prevailing party. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim, conservatory or equitable relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator(s).

    ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND THE SONY ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. If the foregoing class action waiver is found to be illegal or unenforceable, this entire Section 13 will be unenforceable. In the event of either the class action waiver being found to be illegal or unenforceable or this Section 13 otherwise being found to be illegal or unenforceable, the Dispute will be decided by a court and you and KidsLink each agree to waive, in that instance and to the fullest extent allowed by law, any trial by jury.
  14. General.
    1. Relationship of Parties. The relationship of the parties is that of independent contractors, and this Agreement shall not be construed to create any employment relationship, partnership, joint venture, or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party.
    2. Equitable Remedies. Customer agrees that any threatened or actual breach of KidsLink’s Proprietary Rights by Customer shall constitute immediate, irreparable harm to KidsLink for which monetary damages is an inadequate remedy and for which equitable remedies may be awarded by a court of competent jurisdiction without requiring KidsLink to post any bond or any other security (or if a court shall require a bond, then a bond in no amount above U.S. $1,000). Nothing contained herein shall limit either party’s right to any remedies at law, including the recovery of damages for breach of this Agreement.
    3. Assignment. This Agreement and all rights and obligations may not in any event be assigned in whole or in part by Customer without the prior written consent of KidsLink. Any attempted assignment in contravention hereof shall be void and of no effect. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.
    4. Third Party Rights. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
    5. Force Majeure. Except for any payment obligations hereunder, neither party shall be liable for failure to perform any of its respective obligations hereunder if such failure is caused by an event outside its reasonable control, including but not limited to, an act of God, war, or natural disaster.
    6. No Waiver. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach.
    7. Entire Agreement. This Agreement, KidsLink’s Privacy Policy and all Orders, if any, constitute the entire agreement between the parties with respect to the subject matter herein.
    8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument.
    9. Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
    10. Construction. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that this Agreement shall be more strictly construed against one party than the other. Except statements regarding Fees, no additional or substitute terms or conditions in any Order shall be binding upon the parties hereto unless signed by both parties.
    11. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or facsimile number as provided by KidsLink at http://www.mykidslink.com/about/contact.html or by you pursuant to the contact information you provide through the Service. Notwithstanding the foregoing, either party may provide its first notice to the other party by email to (i) the email account provided by Customer or to Customer’s account, if to Customer, and (ii) support@mykidslink.com, if to KidsLink.
    12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its rules regarding conflict of laws.
    13. Amendment by KidsLink. KidsLink reserves the right to change all or part of this Agreement at any time. In such event, KidsLink will notify you of the change upon the next time you access the Service and by e-mail to the e-mail address you have provided through the Service. UPON THE EARLIER OF (I) YOU ACCESSING THE SERVICE FOLLOWING KIDSLINK PROVIDING SUCH NOTICE TO YOU OR (II) THIRTY (30) DAYS AFTER SUCH NOTICE IS PROVIDED IF YOU HAVE NOT TERMINATED YOUR USE OF THE SERVICE BY THAT TIME PURSUANT TO SECTION 8, SUCH USE OR FAILURE TO TERMINATE WILL CONSTITUTE YOUR ACCEPTANCE OF THE REVISED TERMS.
  15. Electronic Contracting. By clicking the “I Agree” checkbox, you agree to transact business with KidsLink electronically. Your agreement to transact business with KidsLink electronically applies to all transactions conducted through the Service or any related application. You may refuse to transact business with us at any time in the future by notifying us in writing and sending such notice to support@mykidslink.com. You will need to maintain equipment, software and internet access necessary to access and use the features made available via the Site, as well as to request and access any copies of these terms and conditions or KidsLink’s Privacy Policy. You may request a copy of each of these documents by contacting KidsLink at support@mykidslink.com provided you pay for the costs of copying and delivering the documents to you.
  16. Authority to Accept Terms of Service. By clicking “I Agree”, you represent and warrant that you have the authority to accept these terms and conditions, that you are more than 18 years of age, and will abide by and comply with the terms and conditions of this Agreement. If you do not agree with these terms and conditions, do not click I Agree and do not access the Service or any related application.