kidthing® - EULA

kidthing© - a better way to click and play

EULA

Welcome to kidthing®!

This document is kidthing’s End User License Agreement (“EULA” or “License”) for the kidthing Player. The Player’s made of software, so this License is the agreement between you and kidthing as to what you may (and may not) do with it, who owns it and so on. THIS LICENSE is a legal agreement between us, so please read it carefully. The words all in uppercase, like the preceding sentence, are especially important. Our lawyers wrote it, so we apologize in advance.

THIS LICENSE IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “YOUR”) AND KIDTHING, INC. (“KIDTHING”). BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.

IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, YOU MAY NOT INSTALL OR USE THE PLAYER.

IMPORTANT NOTE: The Player may be used to reproduce materials. It is licensed to You only for reproduction of noncopyrighted materials, materials in which You own the copyright, or materials You are authorized or legally permitted to reproduce. If You are uncertain about Your right to copy or permit access to any material You should contact Your legal advisor.

Contents:

General
License and Restrictions
Transfer
Consent to Use of Data
kidthing Store and other Services
Termination
Disclaimer of Warranties
Limitation of Liability
Basis of Bargain
Export Control
Government End-Users
(Outside of the USA) Consumer End Users Only
Third Party Software
Controlling Law and Severability
Trademarks
Complete Agreement; Governing Language

1. General. The software and documentation accompanying this License whether downloaded, on disk, in read-only memory, on any other media or in any other form (together will all updates and upgrades, collectively the “Player” or “Software”) are licensed, not sold, to You by kidthing for use only under the terms of this License, and kidthing reserves all rights not expressly granted to You. This License gives You a limited license to use the Software. kidthing and its licensors retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application or content that You may develop) and all copies thereof. The rights granted herein are limited to kidthing’s and its licensors’ intellectual property rights in the Software and do not include any other patents or intellectual property rights. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by kidthing and its licensors. The terms of this License govern any and all software updates and upgrades provided by kidthing that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.

2. License and Restrictions. kidthing grants You a limited, non-exclusive and non-transferable license to install and use the Software for personal, non-commercial use. The Software may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which You own the copyright, or materials You are authorized or legally permitted to reproduce. You may not make the Software available over a public or distributed network where it could be used by multiple users or computers at the same time. You may make one copy of the Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained in the original. Except as, and only to the extent, expressly permitted in this License or by applicable law, You may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Software or any part thereof. You shall not use the Software to develop any product having the same or similar primary function as the Software.

NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN.

THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS OR OTHER SYSTEMS IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL, ENVIRONMENTAL OR OTHER DAMAGE. KIDTHING SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. (We don’t really know how you could do this, but people do strange things so better safe than sorry.)

3. Transfer. You may not rent, lease, lend, transfer or sublicense the Software.

4. Consent to Use of Data. You agree that kidthing and its affiliates may collect and use technical and related information, including but not limited to technical information about Your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Software and to verify compliance with the terms of this License. In accordance with kidthing’s Privacy Policy, kidthing may use and share this information, as long as it is in a form that does not personally identify You, to improve the Service or to provide services or technologies to You.

5. kidthing Store and other Services. The Software enables use of kidthing Products and Services and access to kidthing’s online store (“Store”), which offers downloads of content for sale (“Products”) and other services (collectively and individually, “Services”). Use of the Services requires Internet access and use of certain Services requires You to accept additional terms of service which will be presented to You before You can use such Services.

By using the Software in connection with a kidthing account, You agree to the latest kidthing Store Terms of Service, which You may access and review on the Website.

6. Termination. This License is effective until terminated. Your rights under this License will terminate automatically without notice from kidthing if You fail to comply with any term(s) of this License. Upon the termination of this License, You shall cease all use of the Software and immediately destroy or permanently delete all copies, full or partial, of the Software.

7. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE, SERVICES AND PRODUCTS IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, SERVICES AND PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KIDTHING AND KIDTHING’S LICENSORS (COLLECTIVELY REFERRED TO AS “KIDTHING” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, SERVICES AND PRODUCTS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

KIDTHING DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, SERVICES OR PRODUCTS, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE, SERVICES OR PRODUCTS WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE, SERVICES OR PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE, SERVICES OR PRODUCTS WILL BE CORRECTED.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KIDTHING OR A KIDTHING AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE, SERVICES OR PRODUCTS PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.

(USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL KIDTHING BE LIABLE TO YOU OR ANY THIRD PARTY FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, SERVICES OR PRODUCTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF KIDTHING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

In no event shall kidthing’s total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of TWENTY-FIVE U.S. DOLLARS (US$25.00).

The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

(USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.

9. Basis of Bargain.The Warranty Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between kidthing and You. kidthing would not be able to provide the Software on an economic basis without such limitations. Such Warranty Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of kidthing’s licensors.

10. Export Control.You may not use or otherwise export or reexport the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.

11. Government End Users. This Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: kidthing, inc., 701 E. 3^rd Street, Suite 315, Los Angeles, CA 90013 USA.

12. (Outside of the USA) Consumer End Users Only. The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.

The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to You only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where You are located.

13. Third Party Software. The Software may contain third party software that requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions, if any, are located at http://www.kidthing.com/legal/thirdparty and are made a part of and incorporated by reference into this EULA. By accepting this EULA, You are also accepting the additional terms and conditions, if any, set forth therein.

14. Controlling Law and Severability. This EULA will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this EULA shall continue in full force and effect. Any dispute or claim arising out of or related to this EULA shall be finally settled by binding arbitration in Los Angeles, California USA, under the Rules of the AAA by three arbitrators appointed in accordance with said Rules. You hereby consent to the jurisdiction of the state or federal courts within the State of California or any other jurisdiction necessary to enforce any determination or award of the AAA. The parties may apply at any time to any state or federal court located within the State of California for a temporary restraining order, preliminary injunction, or other interim or conservatory elief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrators.

15. Trademarks. kidthing, the kidthing logo, the kidthing ladybug and ant, and other trademarks contained in the Software are trademarks or registered trademarks of kidthing, inc. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize You to use kidthing’s or its licensors’ names or any of their respective trademarks.

16. Complete Agreement; Governing Language. This License constitutes the entire agreement between the parties with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, with the exception of any additional terms and conditions You are required to accept if You choose to use kidthing’s Store, which will govern Your use of the Store and any Services or Products You purchase through the Store. Any translation of this License is done for local requirements or convenience only and, in the event of a dispute between the English and any non-English versions, the English version of this License, construed and interpreted in the English language as commonly used in the United States of America, shall govern.