Last Revised 8/15/16
PLEASE READ THIS AGREEMENT (this “Agreement”) CAREFULLY. By using any of the Digital Passport Solutions or by clicking a box that states that you accept or agree to these terms, you signify your consent to this Agreement. If you do not agree to this Agreement, please exit the applicable Digital Passport Solution immediately, as you are not authorized to use the Digital Passport Solutions.
This Agreement is between you and Common Sense Media Inc. (“Common Sense” or “we” or “us” or “our”) concerning your use of (including any access to) the Digital Passport mobile software application made available through the Apple App Store and/or the Android App Store (the “App”), and/or the website currently located at https://www.digitalpassport.org, including all subdomains thereof (collectively, with any materials and services available therein, and successor site(s) thereto, the “Site” and collectively with the App, the “Digital Passport Solutions”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Common Sense through the App or the Site, or otherwise made available to you by Common Sense.
BY USING THE DIGITAL PASSPORT SOLUTIONS, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT OR, IF YOU ARE NOT, THAT YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THIS AGREEMENT.
IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE DIGITAL PASSPORT SOLUTIONS ON BEHALF OF, OR FOR THE BENEFIT OF, ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY WITH WHICH YOU ARE ASSOCIATED, INCLUDING ANY SCHOOL OR OTHER EDUCATIONAL INSTITUTION (AN “ORGANIZATION”), THEN YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT. REFERENCES TO “YOU” AND “YOUR” IN THIS AGREEMENT WILL REFER TO BOTH THE INDIVIDUAL USING THE DIGITAL PASSPORT SOLUTIONS AND TO ANY SUCH ORGANIZATION.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 15 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. From time to time, this Agreement may be changed, expanded or amended, and may include the introduction of additional terms and conditions for certain features of the Digital Passport Solutions. Any changes to this Agreement may be made without notice and will be effective immediately upon posting on the Site, so please be sure to review them on a regular basis. The effective date appearing at the top of this page indicates when the latest changes were made to this Agreement. Your use of the Digital Passport Solutions following any changes to this Agreement will constitute your acceptance of such changes. We may, at any time and without liability, modify or discontinue all or part of the Digital Passport Solutions (including access to the Digital Passport Solutions via any third-party links); charge, modify or waive any fees required to use the Digital Passport Solutions; or offer opportunities to some or all Digital Passport Solutions users.
2. MATERIALS ON THE DIGITAL PASSPORT SOLUTIONS AND RELATED RIGHTS AND RESTRICTIONS
The information and materials provided through the Digital Passport Solutions, including any data, text, photographs, graphics, images, music, audio and video clips, logos, icons, games, software and links (collectively, the “Materials”) are intended to educate and inform educators and their students accessing or otherwise using the Digital Passport Solutions. The Digital Passport Solutions are owned and operated by Common Sense in conjunction with others pursuant to contractual arrangements, and the Materials (and any intellectual property and other rights relating thereto) are and will remain the property of Common Sense and its licensors and suppliers. The Materials and the selection, compilation, collection, arrangement and assembly thereof are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. The Materials may be used solely to the extent necessary for your authorized use of the Digital Passport Solutions, as provided in this Agreement or as expressly authorized in writing by Common Sense or, if so indicated in writing by Common Sense, its licensors or suppliers. Modification of the Materials or use of the Materials for any other purpose is a violation of our copyright and other proprietary rights, and is strictly prohibited. We may change the Digital Passport Solutions or delete Materials or features at any time, in any way, for any or no reason. You acknowledge that you do not acquire any ownership rights by using the Digital Passport Solutions or the Materials.
Although Common Sense strives to provide Materials that are both useful and accurate, laws, regulations, data and other information change frequently and are subject to varying interpretations. In addition, the facts and circumstances of every situation differ. Accordingly, although Common Sense endeavors to use reasonable care in assembling the Materials, the Materials may not be up-to-date, accurate or complete. Further, the Materials should not be construed as professional advice on any subject matter, and availability or use of the Materials is not intended to create, and does not create, any professional services relationship between you and Common Sense.
The trademarks, logos and service marks displayed on the Digital Passport Solutions (collectively the “Trademarks”) are the registered and unregistered trademarks of Common Sense, Common Sense’s licensors and suppliers, and others. The Trademarks owned by Common Sense, whether registered or unregistered, may not be used in connection with any product or service that is not Common Sense’s, in any manner that is likely to cause confusion with Common Sense or in any manner that disparages Common Sense. Nothing contained on the Digital Passport Solutions should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Common Sense, Common Sense’s licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Common Sense will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.
3. LIMITED LICENSE
Site Specific Terms: Subject to your compliance with this Agreement, and solely for so long as you are permitted by Common Sense to use the Site, you may view one (1) copy of any portion of the Site to which we provide you access under this Agreement, on any single device, solely for your personal, non-commercial use.
App Specific Terms: The App is licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Common Sense to use the App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the App on one or more mobile devices that you own or control, solely for your personal, non-commercial use; provided that if you are an educator, you may install and use the App on multiple mobile devices for purposes of distributing such mobile devices to your students for educational, non-commercial use. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device(s).
4. RULES OF CONDUCT
While using the Digital Passport Solutions and/or Materials, you agree to comply with all applicable laws, rules and regulations, and that you will not:
• Post, transmit or otherwise make available through or in connection with the Digital Passport Solutions any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
• Post, transmit or otherwise make available through or in connection with the Digital Passport Solutions any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
• Use the Digital Passport Solutions for any commercial purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful.
• Harvest or collect information about users of the Digital Passport Solutions.
• Interfere with or disrupt the operation of the Digital Passport Solutions or the servers or networks used to make the Digital Passport Solutions available, including by hacking or defacing any portion of the Digital Passport Solutions; or violate any requirement, procedure or policy of such servers or networks.
• Restrict or inhibit any other person from using the Digital Passport Solutions.
• Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Digital Passport Solutions except as expressly authorized herein, without Common Sense’s express prior written consent.
• Reverse engineer, decompile or disassemble any portion of the Digital Passport Solutions, except where such restriction is expressly prohibited by applicable law.
• Remove any copyright, trademark or other proprietary rights notice from the Digital Passport Solutions.
• Frame or mirror any portion of the Digital Passport Solutions, or otherwise incorporate any portion of the Digital Passport Solutions into any product or service, without Common Sense’s express prior written consent.
• Systematically download (other than page caching) and store Digital Passport Solutions content.
• Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Digital Passport Solutions content, or reproduce or circumvent the navigational structure or presentation of the Digital Passport Solutions, without Common Sense’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Digital Passport Solutions’ root directory, Common Sense grants to the operators of public search engines permission to use spiders to copy materials from the Digital Passport Solutions for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Common Sense reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
• Use any metatags or any other “hidden text” utilizing Common Sense’s name or Trademarks, including without limitation Digital Passport™, without the express written consent of Common Sense. Notwithstanding the foregoing, and subject to compliance with this Agreement, Common Sense grants you a limited, revocable and nonexclusive right to create a hyperlink to the Digital Passport Solutions home page so long as the link does not portray the Digital Passport Solutions, Common Sense, its affiliates or their products or services in a false, misleading, derogatory or otherwise offensive matter; provided you may not use any Common Sense logo or other proprietary graphic or Trademark as part of the link without express written permission.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Digital Passport Solutions. If you find any Materials on the Digital Passport Solutions which you believe violate or are inconsistent with these Rules of Conduct, please contact the Digital Passport Solutions administrator at [email protected].
5. CONTENT ACCESSIBLE THROUGH LINKS FROM THE DIGITAL PASSPORT SOLUTIONS
The Digital Passport Solutions may contain links to World Wide Web sites and resources. By using such functionality, you are directing us to access, route and transmit to you the applicable third party website and/or resource. Because Common Sense has no control over such sites and resources (other than the Digital Passport Solutions), you acknowledge and agree that Common Sense is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of the content, advertising, products or other material on or available from such sites or resources, or any intellectual property rights therein. You further acknowledge and agree that Common Sense shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any third parties.
YOUR USE OF THIRD PARTY WEBSITES AND RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY WEBSITES AND RESOURCES (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY WEBSITES AND RESOURCES).
6. YOUR ACCOUNT
When and if you register with the Digital Passport Solutions, you agree to (a) provide accurate, current and complete information about yourself as prompted by our registration form (including your email address, if applicable) and (b) maintain and update your information (including your email address, if applicable) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to terminate your access to and use of the Digital Passport Solutions.
As part of the registration process, you may be asked to select a username and password for yourself and, if you are an educator, for your students. If you are an educator, you may also elect to have usernames and passwords automatically generated for your students. We may refuse to grant you a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive or may cause confusion, as determined by us in our sole discretion. You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Digital Passport Solutions to any third party; provided that, if you are an educator, you may provide unique usernames and passwords to your students. If you have reason to believe that your account with us is no longer secure, you must promptly change your password. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT (INCLUDING, WITH RESPECT TO EDUCATORS, THE ACCOUNTS OF YOUR STUDENTS).
7. SUBMISSION OF DATA
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Digital Passport Solutions, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
The Digital Passport Solutions may make available listings, descriptions and images of goods or services or related coupons or discounts (collectively, “Offerings”), as well as references and links to Offerings (including certain Digital Passport Solutions). Such Offerings may be made available by Common Sense or by third parties, and may be made available for any purpose, including general information purposes. The availability through the Digital Passport Solutions of any listing, description or image of an Offering does not necessarily imply our endorsement of such Offering or affiliation with the provider of such Offering. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Offering (including the validity of any coupon or discount) is subject to change at any time without notice. We make reasonable efforts to accurately display the attributes of Offerings, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Offering.
9. CLAIMS OF COPYRIGHT INFRINGEMENT
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any of the Materials located on the Digital Passport Solutions infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Digital Passport Solutions are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Common Sense to locate the material on the Digital Passport Solutions; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Common Sense a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Digital Passport Solutions should be sent to Copyrights c/o Common Sense Media, 650 Townsend Street, Suite 435, San Francisco, 94103. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA. Please note that Common Sense may terminate any user who it reasonably believes to be a repeat copyright infringer.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE DIGITAL PASSPORT SOLUTIONS, THE MATERIALS ON THE DIGITAL PASSPORT SOLUTIONS AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE DIGITAL PASSPORT SOLUTIONS ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NEITHER COMMON SENSE NOR ANY OF ITS AFFILIATES, LICENSORS, MEMBER ORGANIZATIONS, SUPPLIERS, SPONSORS OR AGENTS MAKES ANY WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE DIGITAL PASSPORT SOLUTIONS OR ANY OF THE MATERIALS, NOR DO THEY WARRANT THAT YOUR USE OF THE DIGITAL PASSPORT SOLUTIONS OR ANY SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE DIGITAL PASSPORT SOLUTIONS, THE SERVER(S) ON WHICH THE DIGITAL PASSPORT SOLUTIONS ARE HOSTED OR THE DIGITAL PASSPORT SOLUTIONS SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE DIGITAL PASSPORT SOLUTIONS IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ACKNOWLEDGE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOUR USE OF THE DIGITAL PASSPORT SOLUTIONS AND ANY MATERIALS PROVIDED THROUGH THE DIGITAL PASSPORT SOLUTIONS IS ENTIRELY AT YOUR OWN RISK.
11. LIMITATION OF LIABILITY
NEITHER COMMON SENSE NOR ANY OF OUR AFFILIATES, LICENSORS, MEMBER ORGANIZATIONS, SUPPLIERS OR SPONSORS, NOR ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE DIGITAL PASSPORT SOLUTIONS AND/OR MATERIALS CONTAINED ON THE DIGITAL PASSPORT SOLUTIONS OR ANY LINKED SITE, EVEN IF COMMON SENSE HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE DIGITAL PASSPORT SOLUTIONS, MATERIALS OR ANY LINKED SITE IS TO STOP USING THE DIGITAL PASSPORT SOLUTIONS, MATERIALS OR LINKED SITE, AS APPLICABLE.
IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE DIGITAL PASSPORT SOLUTIONS, AND (B) US$10.00. MOREOVER, UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF OUR AFFILIATES, LICENSORS, MEMBER ORGANIZATIONS, SUPPLIERS OR SPONSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL.
This Agreement is effective until terminated. We reserve the right to terminate your access to and use of (a) the Site or any portion thereof, at any time and for any reason, with or without cause and (b) the App or any portion thereof, if you fail, or we suspect that you have failed, to comply with any of the provisions of this Agreement; provided that, to the extent applicable, you will remain liable for all amounts due with respect to the App or any Transaction up to and including the date of termination.
Common Sense shall have no liability for any such termination, following which your right to use the Digital Passport Solutions shall immediately cease, and you shall destroy all Materials obtained from the Digital Passport Solutions and all copies thereof, whether made under this Agreement or otherwise. Sections 1, 2, and 4 through 19 shall survive any termination of this Agreement.
You agree to indemnify, defend and hold Common Sense, our affiliates, licensors, member organizations, suppliers, advertisers and sponsors, and our and their directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including without limitation attorneys’ fees) and other expenses that arise directly or indirectly out of or from (a) your breach or alleged breach of this Agreement, (b) your use of and activities in connection with the Digital Passport Solutions and/or (c) your account(s) and Submissions; provided that you shall have no indemnification obligations with respect to any claims, damages, losses or costs and other expenses to the extent resulting solely from Common Sense’s negligence. You shall cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
14. ACCESS BY MINORS
In addition, pursuant to 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at Get Net Wise, www.getnetwise.org, and at OnGuard Online, at http://onguardonline.gov. Please note that neither such website is controlled, operated or endorsed by Common Sense and that Common Sense is not responsible for such sites.
15. APPLICABLE LAW AND JURISDICTIONAL ISSUES
The Digital Passport Solutions are controlled and operated by Common Sense from its office in San Francisco, California and is not intended to subject Common Sense to the laws or jurisdiction of any state, country or territory other than California and the United States of America. The Digital Passport Solutions are solely directed to individuals residing in the United States. Those who choose to access the Digital Passport Solutions from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable. This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regard to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County of San Francisco, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE THEN-PREVAILING COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND APPLYING CALIFORNIA LAW AND/OR U.S. FEDERAL LAW, IF APPLICABLE. SUCH ARBITRATION WILL TAKE PLACE IN SAN FRANCISCO, CALIFORNIA, USA, BEFORE ONE (1) NEUTRAL ARBITRATOR SELECTED IN ACCORDANCE WITH SUCH ARBITRATION RULES, INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT COMMON SENSE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration shall be conducted in English and all documents submitted by the parties must be in English. This section is incorporated by reference. The arbitrators shall have no power to award consequential, incidental, indirect or punitive damages, or any damages in excess of compensatory damages, if any.
Notwithstanding the foregoing, (i) either party may seek injunctive or other equitable relief in a court of competent jurisdiction pending the outcome of such arbitration and (ii) any judgment upon the decision rendered by such arbitration against a party, and/or any injunctive or other equitable relief granted by such arbitration, may be entered in any court having competent jurisdiction over the party or its assets. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE DIGITAL PASSPORT SOLUTIONS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
16. EXPORT CONTROLS
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement constitutes the entire agreement between us relating to the subject matter herein and supersede any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. This Agreement is not assignable, transferable, sublicenseable or delegable by you except with Common Sense’s prior written consent. Common Sense may assign, transfer, sublicense, subcontract and/or delegate its rights and/or obligations hereunder to any third party. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
18. QUESTIONS OR COMPLAINTS
The Digital Passport Solutions are provided by Common Sense Media Inc. If you have any questions, comments or complaints regarding this Agreement or the Digital Passport Solutions, feel free to contact us by mail at 650 Townsend Street, Suite 435, San Francisco, 94103, e-mail at [email protected], or telephone at (415) 863-0600. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
19. APPLE-SPECIFIC TERMS
In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Common Sense in accordance with the “Questions or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Common Sense’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
© Common Sense Media Inc. 2016. All rights reserved.
The Common Sense® and Common Sense Media® trademarks, associated names and logos, including Digital Passport®, are trademarks of Common Sense Media, a 501(c)3 nonprofit corporation.