Top 21 Things You Are Agreeing to When You Use Kiyo
Last Updated: January 2, 2018
Said in a different way, this is a binding contract between you and us.
THIS PART IS REALLY IMPORTANT: These Terms require that if we get into a dispute with you relating to the Service (or vice versa), the dispute will be resolved by BINDING ARBITRATION. This means that YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO SUE US (OR BE SUED BY US) UNDER THIS CONTRACT (except for some disputes that can be taken to small claims court). Our disputes will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and you cannot start or join a class action lawsuit. Have a very careful read through Section 18 for the actual details regarding our agreement to arbitrate, which we’ve tried to make fair to our users.
The Service is designed for use by people who are at least 13 years old. If you are not yet 13, then you can’t use the Service. If you are 13 or older, you promise to us that you have never been suspended from the Service, and promise that your use of the Service won’t break any laws or regulations. If you are using the Service on behalf of a company, organization, or other kind of entity, you represent to us that you have authority to bind the organization to these Terms on its behalf.
3. Accounts and Registration
When you sign up for the Service, you have to register an account. We ask that you give us some information about yourself as part of the registration process, some of which is required in order to register the account. You promise that all the information you provide is accurate and that you will keep it accurate and up-to-date in the future. We also ask you to provide a password to protect the security of your account. It goes without saying, but you are responsible for keeping your password safe and confidential. Any activity that happens under your account will be your responsibility. If ever you think that your account may no longer be secure, you need to notify us immediately at firstname.lastname@example.org. You can also reset your password (via the ‘Forgot Password’ link on the App’s sign-in screen.)
4. Limited License
Conditioned on your continued compliance with these Terms, we grant you (a) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded from a legitimate marketplace, in object code format, only for your personal and lawful purposes, and (b) permission to access the Service only for your personal use.
5. User Content
YOU OWN ALL OF YOUR USER CONTENT.
- Generally Speaking. The Service lets you upload, post, and publish written text, images, web links, location information, and other content (“User Content”). Any User Content that you make available on the Service will belong to you or your licensors. We will not claim any ownership in your User Content–it is completely, 100%, yours.
- Limited License to Us. You grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content (in whole or in part) in any media formats and through any media channels (now known or hereafter developed). You understand that we will not pay you for any use of your User Content but we will give you attribution if we use your User Content outside of the Service.
- Limited License to Others. You also grant other users of the Service a non-exclusive license to access and use your User Content in order to fully enjoy the benefits and functionalities of the Service (such as reposting your amazingly brilliant content to Facebook and Twitter).
- Representations and Warranties. You are solely responsible for your User Content and any consequences that occur because you’ve uploaded, posted, or published the User Content on the Service. Each time you upload, post, or publish User Content, you represent and warrant to us that:
- You are the creator and owner of the User Content or have all necessary rights from other people or companies to use, and authorize other users to use, your User Content on the Service as envisioned in this Section 5; and
- Your User Content (including as used by you, us, or other users of the Service) does not and will not infringe or misappropriate any third party right, including copyright and other intellectual property rights, privacy rights, rights of publicity, or moral rights, or slander, defame, or libel anyone. In other words, your User Content can’t be ripped off from someone else without their permission, and it can’t cross the line into libel or defamation.
- Disclaimer. As a rapidly growing community of diverse and opinionated people, there is no reasonable way for us to monitor all of the User Content that gets published on the Service, and we are under no obligation to you or the other users to monitor, edit, or control the User Content that you and other users upload, post, or publish on the Service. This means that we are not responsible for any User Content on the Service and you agree not to make any claims against us on account of User Content. That said, we may at any time remove, edit, screen, or block any User Content from the Service (without notifying you first) if we think the User Content violates these Terms or is otherwise objectionable. When you use the Service, you will be exposed to the User Content of other users (with very different opinions or senses of humor than you), some of which may be offensive, inaccurate, or indecent. We may investigate claims alleging that User Content doesn’t vibe with these Terms and, in those cases, we alone will decide what actions to take (if any) regarding the User Content in question.
6. Digital Millennium Copyright Act
We comply with the parts of the Digital Millennium Copyright Act that are applicable to internet service providers (17 U.S.C. §512, as amended). If you think that materials posted on the Service infringe any of your copyrights, you may contact our Designated Agent at:List App, Inc.
608 Hampton Dr.
Venice, CA 90291
Any notice that alleges materials hosted by or distributed through the Service infringe intellectual property rights must include:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right that is alleged to be infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement from you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
- We will quickly terminate (without notice) the accounts of users that we find are “repeat infringers,” which is a user who has been notified of infringing activity more than twice or has had infringing User Content removed from the Service more than twice.
7. List of Prohibited Conduct
Remember, you are solely responsible for your use of the Service. We hope it goes without saying, but here are the top 8 things that that will give us the right to immediately terminate your account are (so don’t do these things!):
Use the Service for any illegal purpose or in violation of any laws or regulations;
- Violate or encourage others to violate third party rights, including the infringement or misappropriation of intellectual property rights;
- Upload, post, or publish any User Content that is unlawful, defamatory, libelous, objectionable, profane, indecent, pornographic, harassing, threatening, hateful, or otherwise inappropriate;
- Interfere with the security features of the Service (e.g., don’t disable or circumvent features that limit your use or copying of any User Content or reverse engineer the Service to discover the Source Code of the Service);
- Interfere with our operation of the Service or another user’s use of the Service (this means don’t upload or spread any viruses, adware, spyware, or other bad things, don’t make unsolicited offers or promotions, don’t collect other people’s personal information, and don’t interfere with the networks or equipment that we use to provide the Service);
- Perform fraudulent activities, such as concealing that you are impersonating another person (parody accounts are okay so long as you make it clear that it is a parody account) or lying about your date of birth;
- Transfer your rights to use the Service or to view, access, or use any Materials; or
- Attempt to do any of the previous 7 things.
8. Other Companies’ Services and Linked Websites
You may find tools on the Service that let you send information, including User Content, to other companies’ services, including through features that allow you to link your account on the Service with an account on another service (such as Twitter or Facebook or the implementation of other companies’ like or share buttons). If you use these tools, you permit us to send this information to the other companies’ services and you acknowledge that we are not responsible for the other companies’ use of this information because, well, we don’t control them at all. You may also find links to other websites not operated by us on the Service. These websites are also not under our control, so please travel safely outside of the Service and don’t point a finger at us if something out there doesn’t go the way you expected.
9. Termination of Your Account
If you breach any of these Terms, your permission to use the Service will terminate automatically. Additionally, we may terminate your account on the Service or suspend or terminate your access to the Service at any time (with or without notice) without liability to you. You can terminate your account on the Service by contacting our customer service at email@example.com.
We may update, modify, or even discontinue the Service at any time without notice to you.
- Additionally, we may notify you of additional requirements that you need to follow when using the Service, including our community guidelines which are at https://www.getkiyo.com/privacy (the “Additional Policies”). These requirements could be things like acceptable use policies or community guidelines. Any Additional Policies that we post on or link to the Service are incorporated into these Terms as part of our agreement.
11. Modifying these Terms
We may, at times, make changes to these Terms. If and when we do, we will make reasonable efforts to notify you of the changes. We may provide these notices through a pop-up banner, by sending an email to an email address associated with your account on the Service, or in some other way, and we will let you know when the new version of these Terms will go into effect. We may also require you to agree to the newly Terms by signaling your consent. If we ask you to signal your consent, the changes will only impact your use of the Service after you’ve accepted them. If you don’t accept the new Terms that we are proposing, we may cancel your account immediately and terminate your access to the Service. If we have any disputes regarding the Service, they will be resolved in accordance with the version of these Terms that was in effect when the dispute arose.
12. Ownership of the Service
List App, Inc. owns and operates the Service. All of the software, visual interfaces, graphics, designs, information, and all other elements of the Service (the “Materials”) that we provide are protected by intellectual property and other laws. We or our licensors own all of the Materials contained in the Service and you cannot use the Materials except as you are specifically permitted under these Terms.
You are responsible for your use of the Service. You agree to defend and indemnify us, including our directors, officers, employees, consultants, affiliates, and agents (together, the “List App Entities”), from and against any and all claims, liabilities, damages, losses, and expenses (including reasonable attorneys’ fees and costs) arising out of or in any way connected with (i) your access to or use of the Service; (ii) your violation of these Terms or any law or regulation; (iii) your violation of anyone’s rights, including intellectual property rights; or (iv) any disputes between you and a third party. If you do have to defend us, we will have the right to assume exclusive control of the matter (without limiting your indemnification responsibilities) and, if that happens, you will cooperate with our defense of the claim.
14. Disclaimer; No Warranties
WE PROVIDE THE SERVICE, AND ALL CONTENT THAT’S AVAILABLE THROUGH THE SERVICE, ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING, USAGE, OR TRADE. WE DO NOT GUARANTEE OR WARRANT THAT THE SERVICE WILL BE UNINTERUPTED, SECURE, OR FREE OF ERRORS OR HARMFUL COMPONENTS (INCLUDING BAD JOKES), OR THAT WE WILL FIX ANY ERRORS OR HARMFUL COMPONENTS (OR BAD JOKES).
YOU USE THE SERVICE AT YOUR OWN RISK AND ASSUME ALL RISK FOR ANY DAMAGES THAT RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR INTERACTIONS WITH OTHER SERVICE USERS, AND ANY CONTENT AVAILABLE THROUGH THE SERVICE. YOUR USE OF THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THE CONTENT.
THE LAW IN SOME PLACES PROHIBITS A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT MAY VARY DEPENDING ON WHERE YOU RESIDE.
15. Limitation of Liability
WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTIAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE (OR INABILITY TO USE) THE SERVICE OR ANY CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF THE DAMAGES.
OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE (OR INABILITY TO USE) THE SERVICE OR ANY CONTENT AVAILABLE THROUGH THE SERVICE, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHER LEGAL THEORY IS LIMITED TO THE GREATER OF (A) THE AMOUNTS YOU PAID TO US FOR ACCESS AND USE OF THE SERVICE IN THE 12 MONTHS PRECEDING THE CLAIM, AND (B) $100.
THE LAW IN SOME PLACES DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE YOU AND US. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Governing Law
Our agreement under these Terms is governed by the laws of California, without regard to its conflict of laws principles. If a lawsuit is permitted under these Terms, you and we agree to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California.
18. Dispute Resolution and Arbitration
- Generally. In the interest in resolving disputes between you and us in the most efficient and cost effective way, you and List App, Inc. agree to resolve any and all disputes arising in connection with these Terms or your use of the Service by binding arbitration. Arbitration is less formal than a lawsuit in court. It uses a neutral arbitrator instead of a judge or jury, may allow for limited discovery (i.e., pre-trial fact finding) than in court, and usually is not appealable in court. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate claims arising out of or relating to any aspect of these Terms, includes all claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND LIST APP, INC. ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT.
- Exceptions. Notwithstanding Section 18.a, we both agree that nothing in these Terms waives or limits either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through federal, state, or local agencies, (iii) seek injunctive relief or other provisional relief in aid arbitration from a court of law, or (iv) to file a lawsuit in a court of law to address intellectual property claims.
- Arbitrator. Any arbitration between us will be held under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. If you would like a copy of the AAA Rules, they are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us.
- Notice and Process. If one of us intends to seek an arbitration, then they must first send a written notice of the dispute to the other party, by certified mail or Federal Express (signature required), or, if we don’t have a physical address on file for you, by email (“Notice”). Our address for Notice is: List App, Inc., 608 Hampton Dr., Venice, CA 90291. Any Notice must (a) describe the nature and basis of the claim or dispute, and (b) describe the specific relief requested (“Demand”). You and we agree to use good faith efforts to resolve any claim directly, but if we don’t reach a resolution within 30 days after the Notice is received, you or List App, Inc. may start arbitration proceedings. During the arbitration proceeding, the amount of any settlement offers by you or us will not be disclosed to the arbitrator until after the arbitrator makes a final decision and award (if any). If our dispute is resolved through arbitration in your favor, we will pay you the greater of: (i) the amount awarded by the arbitrator (if any), (ii) the last written settlement offered by us to settle the dispute prior to the arbitrator’s award, and (iii) $1,000.
- Fees. If you commence arbitration under these Terms, we will reimburse you for your payment of the filing fee if your claim is for $10,000 or less. Otherwise, the payment of filing fees will be decided by the AAA Rules. If your claim is for $10,000 or less, you can choose whether the arbitration is conducted (i) solely on the basis of documents submitted to the arbitrator, (ii) via telephone, with no in-person hearings, or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If your claim is for more than $10,000, the arbitration hearings will take place at a location that we agree upon in Los Angeles County, California. If the arbitrator rules that the substance of your claim or the relief you seek in the Demand is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and you agree to reimburse us for any amounts we previously paid but for which you are obligated to pay under the AAA Rules. The arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award (if any) are based. The arbitrator may make rulings and resolve disputes regarding the payment of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND WE EACH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Unless you and we agree otherwise, the arbitrator cannot consolidate more than one person’s claims and may not preside over any form of representative or class proceeding.
- Modifications. If we make any future changes to this arbitration agreement (other than a change to our address for Notice), you can reject the changes by sending us written notice (to our address for Notice) within 30 days of the change. If you do so, your account on the Service will immediately terminate and this arbitration agreement, as in effect immediately prior to the amendments you rejected, will survive termination.
- Enforceability. If Section 18.f is found to be unenforceable, or if the entirety of the arbitration agreement in this Section 18 is found to be unenforceable, then this Section 18 will be null and void and, if this happens, you and we agree to submit any disputes arising in connection with these Terms or your use of the Service in the exclusive jurisdiction described in Section 16.
19. Consent to Electronic Communications
20. Contact Information
The Service is offered by List App, Inc., located at 608 Hampton Dr., Venice, CA 90291. We can reach us by sending letters to our address or by emailing us at firstname.lastname@example.org. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to our address above with a request for these Terms.
21. Notice Regarding Apple
You agree that these Terms are between you and List App, Inc. only, not with Apple, Inc., and Apple is not responsible for the Service or the content on the Service. Apple has no obligation to provide any maintenance or support services regarding the Service. If the Service fails to conform to any applicable warranty, then you may notify Apple and Apple will refund to you any applicable purchase price for the App (to the maximum extent permitted by law). Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession of the App or use of the Service, including: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terns, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You represent and warrant that (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (B) you are not listed on any U.S. Government list of prohibited or restricted parties.