TERMS OF SERVICE

 

This Terms of Service Agreement (the “Terms” or “Agreement”) govern your use of the Kwippo, Inc. (the “Company” or “Kwippit”) service available through our website located at http://kwippit.com or associated application(s) (each a “Property”), that facilitates generation of messages (collectively, the functionality provided by the Property referred to as the “Service”).  By clicking the “I accept” button, completing the registration process, browsing our Property, or using the Service, you acknowledge that you have read and understood these Terms and agree to be bound by them. If not, do not use the Property or Service. 

PLEASE READ THIS AGREEMENT CAREFULLY.  BY ACCESSING, BROWSING OR USING THE PROPERTY OR SERVICE, CLICKING ON THE “I ACCEPT” BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT (1) THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU REPRESENT.  IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE PROPERTY OR SERVICES.

    1    About Kwippit.  The Service enables you to generate messages, including images and other third-party content that you modify.  

    2    Registration.  To use certain features of the Service, you must register and create an account (“Account”).  When you set up your account, you will be required to create log-in credentials by providing certain types of personal information (“Login Credentials”). For more information on the types of personal information we will collect in order to create your Login Credentials and Account, please review our Privacy Policy https://kwippit.com/privacy.  You are responsible for maintaining the confidentiality of your Login Credentials, and are solely responsible for all activities that occur using your Login Credentials.  You agree not to allow a third party to use your Login Credentials at any time.  We reserve the right to terminate any username and password, which we reasonably determine may have been used by an unauthorized third party.  You agree not to create an Account or use the Services if you have been previously removed by the Company, or if you have been previously banned from any of the Services.

    3    Licenses and Content. The Property, the Services and the information and content available on the Property and the Services are protected by copyright laws throughout the world.  Subject to these Terms, Kwippit grants you a limited license to (1) use the Properties for your personal use, and (2) distribute the content licensed to and made available by Kwippit on the Properties, in your personal messages. Subject to your compliance with the Terms, the Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the application Property (“Application”) on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes.  Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service https://www.apple.com/legal/internet-services/itunes/us/terms.html.

    1    Certain Restrictions.  The rights granted to you in this Agreement are subject to the following restrictions: except as expressly provided in this Agreement, (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Properties or any portion of the Properties; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Properties (including images, text, page layout or form) of Company; (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any pages contained in the Property (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Property for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Properties; and (i) you shall not use the Properties for any illegal or unlawful purpose. Any unauthorized use of the Properties terminates the licenses granted by the Company pursuant to the Agreement.

    2    Your Content.  You are responsible for all images, text, video (“Content”) that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Properties (“Your Content”).

    3    No Obligation to Pre-Screen Content. You acknowledge that the Company has no obligation to pre-screen any Content, although the Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content.  By entering into the Terms, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.  In the event that the Company pre-screens, refuses or removes any Content, you acknowledge and agree that the Company will do so for the Company’s benefit, not yours.  Without limiting the foregoing, the Company shall have the right to remove any Content that violates the Terms or is otherwise objectionable.

    4    Storage.  Unless expressly agreed to by the Company in writing, the Company has no obligation to store any of Your Content that you Make Available on the Properties.  The Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Properties.  

    5    License to Your Content.  The Company does not claim ownership of Your Content.  However, when you Make Available Your Content on or in the Properties, you represent that you own or have sufficient rights in Your Content and you hereby grant the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Properties to you and to our other users of the Service (“Users”).  You agree that you, not the Company, are responsible for all of Your Content that you Make Available on or in the Properties.

    4    User Conduct.  You agree that you will not, under any circumstances:

    1    Interfere with or damage Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;

    2    Attempt to gain unauthorized access to the Properties, accounts registered to others, or to the computers, servers or networks connected to the Properties by any means other than the User interface provided by Company, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Properties;

    3    Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities; 

    4    Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights.

    5    Ownership Rights and License.  As between you and Company, the Properties, including any design, layout, logo, text, code, and graphics contained within the Property (the “Company Content”) is, and shall remain the sole property of Company and is subject to protection under U.S. and foreign copyright laws.  Other trademarks, logos, and images that are available in connection with our Service are the property of their respective owner (each an “Owner”), which may or may not be affiliated with, connected to, or sponsored by Company.  

    6    Expenses and Fees.  You shall be solely responsible for all charges, fees, taxes, tips, administrative fees, expenses and costs you incur in connection with your use of the Services, including SMS and MMS texting fees.  You agree to pay the applicable fee for your purchase of any Content available through the Properties, such as in-app purchase fees.

 

    1    1. Subscriptions.  

Process. You may purchase a subscription through our Application (“App” or “Apps”). When you purchase a subscription through our iOS or Android Apps, your payments are processed by Apple or Google (or their third party payment processors), as applicable. Various forms of payment are accepted, as specified during sign-up. We do not accept cash or checks.  

    1    Billing Authorization. By providing your payment method and obtaining a subscription to the service, you authorize Apple, or Google (or any of their service providers), as applicable, to charge to your designated payment method the applicable monthly or annually recurring subscription fees (“Subscription Fee"), and any applicable sales, telecommunication, excise, value-added or similar taxes (“taxes"). The Subscription Fee is exclusive of any such taxes. The Subscription Fee is payable in the currency specified during sign-up.

    2    Subscription Fee Changes. To the fullest extent permitted under applicable law, we reserve the right to change the Subscription Fee at any time in our sole discretion. If we change the subscription fee, then we will provide you notice of the proposed change at least thirty (30) days before the change is to take effect. Subscription Fee changes will take effect at the start of the next renewal of your subscription following the date of the price change. You accept the new price by continuing to use the service after the price change takes effect. If you do not accept the price change, then you may unsubscribe from the service prior to the price change going into effect.

    3    Automatic Renewal. to the fullest extent permitted under applicable law, by purchasing a subscription to the service, you agree that your subscription will automatically renew at the end of each subscription term at the then-current subscription fee and for the same term as the immediately preceding subscription, unless and until you cancel your subscription (“Auto-renewing Subscription”).

    4    Recurring Charges. to the fullest extent permitted under applicable law, upon expiration of your subscription, you will automatically be billed for the same subscription plan (or the most similar subscription plan, if your prior plan is no longer available) at the then-current subscription fee plus any taxes. your payment method will be charged the subscription fee for the renewal term of your subscription on your billing date, based on the type of subscription (e.g., on a particular date each month for a monthly subscription). if, however, the billing date of your subscription is on the 29th, 30th or 31st day of a month, and your billing date does not exist in a particular month because there are fewer than thirty-one (31) days in the month payment is due, then your billing date for that particular renewal will be on the last day of the month in which your billing date would otherwise be.

    5    Cancellation and Refunds.  Auto-renewing Subscriptions purchased through an iOS application may only be cancelled by following the instructions located at https://support.apple.com/en-us/HT202039. Refund requests for cancelled Auto-renewing Subscriptions purchased through an iOS application must be submitted to Apple Support using this link: https://getsupport.apple.com.  Auto-renewing Subscriptions purchased through an Android application may only be cancelled by following the instructions located at https://support.google.com/googleplay/answer/2476088?hl=en. Refund requests for cancelled Auto-renewing Subscriptions purchased through an Android application must be submitted to Google Play Support using this link: https://play.google.com/store/account.  If you cancel your subscription, then you will have access to the subscription until the date that would have been your next billing date, after which you will be downgraded to the free service Upon any cancelation, you will be downgraded to the free service.

    6    Failure to Pay. if you fail to pay the applicable subscription fee when due, then you will be downgraded to the free service. if you are downgraded, then Kwippo inc. may, but is not obligated to, maintain your account and/or related content and information, in order to allow you to pay the past-due charges and restore your subscription.

 

    1    No Warranty

    1    General.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PROPERTIES IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROPERTIES, AND ANY COMPANY CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY HEREBY DISClAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PROPERTIES , SERVICES, AND ANY COMPANY CONTENT, 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, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY DOES NOT WARRANT THAT THE PROPERTIES OR ANY COMPANY CONTENT, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PROPERTIES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PROPERTIES WILL BE CORRECTED, OR THAT THE SERVICE WILL BE AVAILABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY.

    2    Third Party Service Providers.  you acknowledge and agree that the company may utilize third party service providers to perform tasks, and that the company has no control or ability to control such third party service providers.  Accordingly, you acknowledge and agree that the company is not liable, and you agree not to seek to hold the company liable, for the conduct of third parties, including third party service providers who perform any tasks.

    1    Limitation of Liability.  TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING , WITHOUT LIMITATION, 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 PROPERTIES, ANY COMPANY CONTENT, ANY INFORMATION AVAILABLE ON THE SERVICE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH THE ASSISTANTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED FIFTY ($50 USD). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

    2    10.Feedback.  If you provide Company any feedback or suggestions regarding the Properties or Services (“Feedback”), you hereby grant to Company a non-exclusive, transferable, fully paid, royalty-free, perpetual, irrevocable license to use the Feedback in any manner it deems appropriate without any right to any compensation. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary.  You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.

    3    

 

    1    2. Indemnification. You agree to indemnify, defend, release, and hold harmless Company, its partners, licensors, affiliates, contractors, officers, directors, employees and agents (collectively, the “Company Parties”) from all damages, losses and expenses arising directly or indirectly from (a) any negligent acts, omissions or willful misconduct by you, (b) your use of the Properties, (c) any breach of these Terms by you, and/or (d) your violation of any law or of any rights of any third party.  The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses.  You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Properties.

    1    13.Release.  You hereby release the Company Parties and their successors from claims to the extent permissible by applicable law, of all demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Properties, including but not limited to, any interactions with or conduct of third parties in connection with or as a result of the Terms or your use of the Properties.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.  

    2    14.Equitable Remedies. You hereby agree that if the terms of these Terms are not specifically enforced, Company will be irreparably damaged, and therefore you agree that Company shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any of these Terms, in addition to any other available remedies

    3    15.Change to these Terms. The Terms are subject to change by Company in its sole discretion at any time.  When changes are made, Company will make a new copy of the Terms of Service available at the Property.  We will also update the “Last Updated” date on these Terms.  If we make any material changes, and you have registered with us to create an Account, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms.  Any changes to the Terms will be effective immediately for new users of the Properties and will be effective thirty (30) days after posting notice of such changes on the Property for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes within the Property or thirty (30) days after dispatch of an e-mail notice of such changes to users who have registered for an Account.  Company may require you to provide consent to the updated Terms in a specified manner before further use of the Property, and/or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Properties.  Otherwise, your continued use of the Properties constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE PROPERTY TO VIEW THE THEN-CURRENT TERMS. 

    4    16.Termination.  Company may cancel, suspend or block your use of the Service without notice if there has been a violation of these Terms.  Your right to use the Service will end once your registration is terminated, and any data you have stored on the Service, unless Company is required to retain it by law.  You may terminate your registration at any time.  Company is not responsible or liable for any records or information that is made unavailable to you as a result of your termination of registration.  YOU AGREE THAT COMPANY WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SERVICE.  Sections 4-21 will survive the expiration or termination of these Terms for any reason.

    5    17.App Stores.  You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (an “App Store”).  You acknowledge and agree that the Terms are between you and the Company and not with the App Store.  The Company, not the App Store, is solely responsible for the Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).  In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the App Store in connection with the Properties, including the Application.  You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.

    6    18.Intellectual Property.

    1    Procedure for Making Claims of Copyright Infringement.  It is the Company’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to the Company by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) 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.  Contact information for the Company’s Copyright Agent for notice of claims of copyright infringement is as follows: copyright@kwippit.com 3507 Ringsby Ct, Denver, CO 80216 . 

    2    Alleged Trademark Infringement. If you are concerned that someone may be using your trademark in an infringing way via any Kwippit service, you can let us know by contacting Kwippit through the contact information below. Kwippit may remove the allegedly infringing material.  

    7    19.Company Name and Address. Company’s contact information for any end-user questions, complaints or claims with respect to Properties is found at www.kwippit.com.

    8    20.Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

    9    21.Miscellaneous.  Company’s failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision.  These Terms shall be governed by the laws of the state of Colorado (including applicable federal law), without giving effect to any principles that may provide for the application of the law of another jurisdiction.  If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.  A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.  All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.

 

Update Date: Aug 29, 2017