Terms of Service
November 14, 2012
Welcome to Kidite, LLC’s (“Kidite”) web application called “Tapgram” (“Tapgram”). We hope you (“User” or “you”) enjoy this application. Please read the following Terms of Service. By clicking on the “I accept” button, downloading this application, or using this application you are agreeing to be bound by the terms and conditions of the Terms of Service outlined below. If you do not agree to all the terms and conditions of the Terms of Service you cannot download and use this application. If there are any revisions to this Terms of Service you will be notified and will be asked to consent to the new Terms of Service in order to continue your use of this application.
1. License Grant – Subject to your compliance with the terms and conditions of this User Agreement, and subject to Apple’s Usage Rules as set forth in the App Store Terms of Service, Kidite grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable, non-commercial, license to download and install a copy of this application onto any iPad that you own or control for your personal use. This means that this application is not sold to you, and that Kidite retains ownership of all copies of this application even after installation on your mobile device. Except as expressly specified in this Terms of Service, under this license you may not: (a) copy (in any amount) or modify this application in any way, including, but not limited to, adding new features or otherwise making adaptations that alter the functionality of this application; (b) transfer, sell, rent, lease, distribute or otherwise assign any rights to, or any portion of, this application to any third party; or (c) make the functionality of this application available to multiple users through any means, including, but not limited to, distribution of this application or by uploading this application to a network or file-sharing service or through any hosting, application services provider or any other type of service; (d) dissemble, decompile, or reverse engineer this application, in whole or in part, or permit or authorize a third party to do so. Furthermore, with respect to any iTunes store sourced application, you will only use the iTunes store sourced application as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Kidite reserves all rights in this application not expressly granted to you in this Terms of Service.
2. Privacy Policy – Use of this application is conditioned upon your consent to Kidite’s privacy policies located at http://www.tapgram.com/privacy User represents and warrants that he or she has read the Privacy Policy, consents to the Privacy Policy, and User agrees to be bound to the terms of the Privacy Policy.
3. Age Eligibility – This application is intended to provide parents or guardians the ability to curate a positive, educational, and fun online experience for their child or children. User hereby represents and warrants that he or she is 13 years old or older or has express consent from his or her parent or guardian to download and use this application. If you are a child under 13 years of age you must have parent or guardian consent prior to using this application. If you are under 13, and you do not have your parents’ or guardians’ express permission to use this application, stop using Tapgram immediately.
4. Parent/Guardian Consent – (COPPA compliance) – Tapgram/Kidite do not directly or intentionally collect personal or individually identifying information from children under 13. Additionally, Tapgram is intended and directed to be downloaded by parents or guardians so they can curate a beneficial online experiences for their children.However, because children under 13 use this application and due to some of the application’s features, including its social networking features discussed below, there is a chance information which could identify a child will be collected and/or freely viewable via the application (e.g., from a photo posted on Facebook). By agreeing to these Terms of Service, parents or guardians of children under 13 expressly consent to Tapgram/Kidite collecting, using, and displaying any and all information provided to it through this application. Again, Tapgram/Kidite do not directly collect personal information from children under 13, nor does Tapgram/Kidite distribute such information, if received, to third parties. If a parent or guardian has further questions about Tapgram’s/Kidite’s privacy policies, please review our Privacy Policy http://www.tapgram.com/privacy or contact Tapgram directly. We will be happy to address any concerns you may have.
5. Social Networking Sites – User agrees if he or she access a “Social Networking Site” (SNS) such as Facebook or Twitter via this application that Tapgram/Kidite is authorized to access and store User’s SNS account information so that it is available to you when you use this application.
6. Updates and Upgrades – Kidite is not obligated to maintain or support this application in any way. This includes, but is not limited to, providing all or any specific content through this application, or to provide you with updates, upgrades, or services related thereto. User acknowledges that Kidite may, from time to time in its sole discretion, issue updates or upgrades to this application, disable access to this application for any period of time or permanently, and may automatically update or upgrade the version of the application you are using on your mobile device. User expressly consents to such automatic updating or upgrading on your mobile device, and User agrees that the terms and conditions of this Terms of Service will apply all such updates or upgrades. Kidite shall have no liability to you arising out of, or related to, any unavailability of this application.
7. Term & Termination of User License – The term of this license is for 75 years unless earlier terminated by you or Kidite in accordance with this provision. Kidite reserves the right to terminate this license without notice for any reason whatsoever. Upon termination of this license, User must cease all use of this application and promptly delete and destroy all copies, full or partial, of this application. User may terminate the license at any time by destroying all copies of this application in your possession or control. Additionally, User expressly agrees that the terms and conditions of this Terms of Service, where applicable, continue to bind the User despite Kidite’s or User’s termination of the license grant contained in this Terms of Service and/or User’s termination of application use.
8. User Accounts & Responsibility – To use this application you may be required to register for a “Tapgram Account.” User agrees to provide accurate, truthful, current, complete, and non-misleading information in connection with creating his or her Tapgram Account. Kidite retains the right to reject any user name selected by you and/or revoke your right to use any previously selected user name and give such user name to any other person or entity in Kidite’s sole discretion and without liability to you. You agree you are responsible for maintaining the confidentiality of your Tapgram Account credentials and you are fully responsible for all activities that occur under your Tapgram Account. User agrees to immediately notify Tapgram/Kidite of any unauthorized use of your Tapgram Account or any other security breach. Kidite reserves the right to suspend or terminate your access and/or account without notice and for any reason whatsoever.
9. User Content Submissions & Warranty – Tapgram may accept User content submissions, including, but not limited to, text, data, graphics, images, photos, video, or audiovisual works (User Content), for potential posting or use in this application, on related websites, or for Tapgram/Kidite sponsored contests or giveaways. As a condition of User Content acceptance, User represents and warrants that all submissions provided are not: illegal, obscene, threatening, defamatory, false or misleading, racist or harassing of any group, encouraging of foregoing actions, do not contain any hardware or software viruses, are not “spam” or other solicitations of any kind, and do not infringe any intellectual property or privacy/publicity rights of any third parties. Additionally, by submitting User Content to Tapgram/Kidite, User grants Kidite a non-exclusive, royalty-free, worldwide, sub-licensable, transferable, assignable, irrevocable, unrestricted, commercial license, for the life of the relevant intellectual property right, to: reproduce, prepare derivative works of, distribute, display, publically perform, translate, alter, edit, mutilate, (thereby waiving moral rights where possible), make, use, and sell the submitted material for any purpose Tapgram/Kidite desires in any medium now known or later discovered. User agrees Kidite retains exclusive and final control over how the User Content submissions are used. User further agrees to hold Kidite and its affiliated companies harmless for any and all damages or undesired consequences which may result from User Content submission, including use by unaffiliated third parties. By submitting content to Kidite, User and Kidite are in no way establishing a joint venture, partnership, or any other business relationship. Lastly, Kidite reserves the right to remove any User content submissions or comments at its sole discretion at any time and without notice to User.
10. User Technology Tampering – User represents and warrants he or she will not do any of the following: Access, tamper with, or use non-public areas of this application, Kidite’s computer systems, or the technical delivery systems of this application’s providers or licensors; Attempt to probe, scan, or test the vulnerability of any Tapgram/Kidite system or network or breach any security or authentication measures; Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measures implemented by Tapgram/Kidite, any of Tapgram/Kidite content providers or licensors, or any other third-parties (including another user) to protect this application/Kidite, this application’s content, or other third parties; Attempt to access or search this application or its content or download Tapgram/Kidite content through the use of any engine, software, tool, device or the like, other than the software and/or search agents provided by Tapgram/Kidite or other generally available third party web browsers; Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use this application or its content to send altered, deceptive, or false source-identifying information; Attempt to decipher, decompile, disassemble, or reverse engineer any software used to provide this application or its content; Interfere with, or attempt to interfere with, the access of any user, host, or network connected to this application, including, but without limitation, sending a virus, overloading, flooding, spamming, or mailbombing this application; Collect and store any personally identifiable information from Tapgram/Kidite or other Users without their express permission
11. Indemnification – User agrees to indemnify and defend Kidite, its officers, directors, employees, or anyone else related to Tapgram/Kidite against any and all claims, losses, liabilities, damages, costs, or expenses from all lawsuits or causes of action arising out of or related to breach of any User representations and warranties, or any other terms, contained in this Terms of Service. User shall employ legal counsel to defend such suit or action at User’s expense. Kidite shall have the right to approve such counsel, but Kidite shall not unreasonably withhold its approval.
12. WARRANTY & DISCLAIMER – THIS APPLICATION IS PROVIDED “AS IS” AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES AFFILIATED WITH THIS APPLICATION WHATSOEVER. ADDITIONALLY, KIDITE SPECIFICALLY DISCLAIMS, TO THE EXTENT ALLOW BY LAW, ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOUR USE OF THIS APPLICATION IS AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF WARRANTY SO THESE DISCLAIMERS MAY NOT APPLY TO YOU.
IN NO CIRCUMSTANCES WHATSOEVER SHALL APPLE, OR ITS SUBSIDIARIES, BE LIABLE UNDER THIS WARRANTY CLAUSE FOR ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, OR EXPENSES. ADDITIONALLY, USER AGREES, AND KIDITE ACKNOWLEDGES, THAT APPLE IS NOT RESPONSIBLE FOR ADDRESSING ANY CLAIMS OF USER OR ANY THIRD-PARTY RELATED TO THE HAPPLY APPLICATION, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE HAPPLY APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LAWS.
13. HOLD HARMLESS & LIMITATION OF LIABILITY – USER AGREES TO HOLD KIDITE AND ITS LICENSORS HARMLESS FOR ANY AND ALL HARM THAT MAY COME TO USER OR USER’S PROPERTY THROUGH THE USE OF THIS APPLICATION. SPECIFICALLY, USER AGREES, TO THE EXTENT ALLOWED BY LAW, THAT KIDITE AND ITS LICENSORS SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES THAT MAY ARISE OUT OF USE OF THIS APPLICATION. USER ALSO AGREES THAT ANY DIRECT DAMAGES SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW SUCH LIMITS ON LIABILITY SO THESE LIMITS MAY NOT APPLY TO YOU.
14. Relationship with Apple; Apple Liability; Apple as Third-Party Beneficiary – This Agreement is between Tapgram and User, and Tapgram is solely responsible for the content contained within the Tapgram application. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Tapgram application. Moreover, in the event any third-party claim that Tapgram, or the end-user’s possession and use of Tapgram, infringes that third-party’s intellectual property rights, Apple shall not be responsible for the investigation, defense, settlement, and discharge of any such intellectual property claim. Additionally, User agrees, and Kidite acknowledges and agrees, that Apple and its subsidiaries are third-party beneficiaries of this Agreement, and that, upon the User’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against the User as a third-party beneficiary thereof.
15. Interactions Between Users – You are solely responsible for your interactions (including any disputes) with other Users. You understand that Tapgram/Kidite does not screen Tapgram Users in any way whatsoever and makes no representations or warranties about Tapgram Users. Due to this, User represents and warrants to Kidite that User will exercise caution, discretion, common sense, and good judgment in all interactions with other Tapgram Users. If User decides to interact with other Tapgram Users offline, User does so at own risk. Kidite disclaims all liability for any harm that befalls User and User expressly agrees to hold Kidite and any related individuals or companies harmless for any and all damages to User regardless of User’s good judgment, caution, discretion and the like.
16. User Assistance – As a condition of using this application, User agrees Tapgram/Kidite may contact User in accordance with applicable laws to evaluate compliance with the rules and policies contained herein. Additionally, User agrees to fully cooperate with Kidite or relevant enforcement authorities to investigate any suspected unlawful, fraudulent, or improper activities involving other Users and their actions related to Tapgram/Kidite.
17. Copyright Protection – Tapgram and the content contained herein are protected under United States and International Copyright laws. As such, except as expressly authorized in writing by Tapgram/Kidite or Tapgram’s licensors, any reproduction, creation of derivative works, distribution, display, public performance, translation, or alteration of this application or the content contained herein is strictly prohibited and may subject the User to liability. Additionally, User agrees he or she will not delete or in any manner alter the copyright notices or markings appearing on this application.
18. Trademark Protection – “Tapgram,” and our logo (Marks) are trademarks of Kidite. No third party shall use these Marks, or any other trademarks, slogans, or logos which are likely to cause confusion with Kidite’s Marks, to mislead consumers about the origin of the third party’s goods or services, or to signal Tapgram’s or Kidite’s affiliation with, or sponsorship of, third party’s products, services, websites, or companies. Additionally, Kidite strictly forbids the use of “frames,” framing techniques, meta tags, or any other “hidden text” utilizing Marks. Additionally, User agrees he or she will not delete or in any manner alter the trademark notices or markings appearing on this application. Any Kidite use of third party trademarks are intended as “fair use” and Kidite has no intention whatsoever to trade off the goodwill developed by unaffiliated third parties.
19. Links to Third Party Websites – This application contains links to unaffiliated third party websites. Tapgram/Kidite do not necessarily endorse, sponsor, or approve of content, products, or services found on third party websites. Moreover, Kidite expressly disclaims any and all liability for actions of, content found on, or damages to you from third party websites. Additionally, User agrees to expressly hold Tapgram/Kidite harmless for any and all damages resulting from User access to third-party websites reached through this application.
20. Feedback & Assignment– Tapgram/Kidite welcomes and encourages feedback, comments, and suggestions for improvements to Tapgram (Feedback). You may submit Feedback by emailing us at info@tapgram.com. By submitting Feedback, User agrees all Feedback becomes the exclusive property of Kidite. Additionally, User irrevocably assigns to Kidite his or her complete rights, titles, and interests in Feedback, including any and all intellectual property rights contained therein. Moreover, at Kidite’s request and expense, User agrees to execute documents and take such further action as may be reasonably requested to assist Kidite in acquiring, perfecting, or maintaining subject intellectual property rights.
21. Sweepstakes & Contests – Kidite may operate sweepstakes, contests, and similar promotions (collectively Promotions) through Tapgram. You should carefully review the rules (Official Rules) of each Promotion in which you participate, as the Official Rules may contain additional important information about Kidite’s rights to and ownership of your Promotions submissions. In the event the Official Rules conflict with this Terms of Service, the Official Rules will control.
22. Dispute Resolution, Injunctions, & Governing Law– User agrees that all disputes or claims relating your use of this application will be resolved individually (not in a class or consolidated) and through binding arbitration as opposed to State or Federal court only after User has contacted Tapgram/Kidite with his or her concern. User agrees the arbitration shall be conducted by the American Arbitration Association and under its rules. User agrees the arbitrator will apply the substantive laws of Washington State. Visit www.adr.org for more information. Additionally, User agrees that all arbitration hearings shall be conducted by phone or through the submission of documents unless otherwise mutually agreed upon. However, if User’s claims qualify for “small claims” court, Kidite agrees you may file your claim in “small claims” court. Given the above language, User expressly grants Kidite the authority to file injunctive or other equitable relief in a court of competent jurisdiction to prevent or halt the breach of any terms of use or conditions stated in this Terms of Service. For any claims against Kidite filed in a contrary manner to this Terms of Service, User agrees that Kidite may file a claim to recover attorneys’ fees in a court of competent jurisdiction.
23. Communication Via Email – User agrees and consents that all electronic communications via email or postings on www.tapgram.com satisfy any writing requirements under the law. Such communications may pertain to: agreements between Kidite and User, User notices about security issues or our Privacy Policy, mandatory disclosures, or any other matters Kidite deems important.
24. Transfer of Information – User agrees, consents to, and understands that if he or she is located outside the United States any information User provides through this application or through any related websites will be transferred to the United States.
25. U.S. Government End Users – This application and related documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If this application and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in this application and related documentation will be only those specified in this Terms of Service.
26. Export Control; Prohibited Uses of Tapgram– User may not use, export, re-export, import, or transfer this application except as authorized by United States law, the laws of the jurisdiction in which you obtained this application, any other applicable laws, or this Terms of Service. In particular, but without limitation, this application may not be used in or by, exported to, or re-exported to: (a) any United States embargoed countries; (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or by the U.S. Department of Commerce’s Denied Person’s List or Entity List; (c) anyone located in a country that has been designated by the U.S. Government as a “terrorist supporting” country or listed on any U.S. Government list of prohibited or restricted parties. By using this application, you represent and warrant that you are not located in any such country or on such list.
User also represents and warrants he or she will not use this application for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. LASTLY, User expressly agrees to indemnify Kidite and its assigns, to the full extent of the law, for breach of any terms of this paragraph.
27. Assignment – User agrees and consents that any information collected about user, including any personally identifying information collected per the Privacy Policy, can be sold, assigned, transferred, or otherwise conveyed to a third party as part of a merger, acquisition, reorganization, sale of the assets, in the event of a bankruptcy, or any other such change of control situation. Additionally, user agrees that this Terms of Service continues to bind the User and guide the terms and conditions of your use of this application in any of the foregoing circumstances.
28. Entire Agreement & Severability – This is the entire agreement between Kidite and User and supersedes any prior written or oral agreements. If any provision of the Terms of Service becomes invalid, illegal, void, or unenforceable under any applicable law, each such provision shall be deemed amended to conform to applicable law; or, if it cannot be amended without materially altering the terms of this Terms of Service, such provision shall be deleted. Additionally, the failure of Kidite to enforce any right or provision of this Terms of Service does not constitute a waiver of that right or a waiver of future enforcement.
29. Developer Name and Address – If you have questions, complaints, or claims with respect to Tapgram, please direct such communications to Kidite as follows:
Kidite LLC
205 6th Avenue
Brooklyn, NY 11217