Last Modified on October 1st, 2020
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING AGREEMENT.
YOUR USE OF THE SITE AND/OR THE SERVICE, OR BY CLICKING "I ACCEPT" IF PRESENTED WITH THIS TOU IN A CLICK-THROUGH FORMAT, SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT Pink Panda Candy MAKES FROM TIME TO TIME.
- Representations and Warranties. The Site provides you with certain information about our products and services. By using the Site and Service or clicking the "I Accept" button, you hereby warrant, represent, covenant and certify the following:
1.1. All information that you provide to Pink Panda Candy is true and accurate, including, without limitation, the ages of your children that will be using mobile devices or computers;
1.2. You will only use the Site and Service as an aid to your efforts to protect and enhance the welfare of children for whom you are the legal guardian;
1.3. You consent to Pink Panda Candy collecting the emails and text messages of each of your children that is 13 years of age or older that you have registered with Pink Panda Candy for your exclusive password restricted access through the Site or Service;
1.4. You will not use the Site or Service in violation of any Federal, State or local law, rule, ordinance or governmental regulation;
1.5. You will properly follow all instructions and documentation provided by Pink Panda Candy to you.
- Requirements. You acknowledge and agree that the devices you have registered stating that the device belongs to its authorized owner, may be used only for safe and legal activities, and has security software that maintains a record of the use of the device that may be accessed by the owner of the device. These requirements may change as the Service evolves. You are responsible for any internet connection fees that you incur when accessing the Service.
- Updates to this ToU. Pink Panda Candy may revise this ToU as the Site and/or Service evolves. By using the Site and/or Service, you agree to the then-current version of this ToU as posted on the Site. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and/or Service and uninstall the Software.
- Account Security.
5.1. Eligibility. You represent that you are an adult over the age of 18 and have the legal capacity to enter a contract in the jurisdiction where you reside. Any child that you intend to subject to our Service shall be under the age of 18 years old and unless you are the legal guardian of your child, you may not monitor such a child or any child in which you are brother/sister, step brother or step sister, aunt or uncle, cousin or nephew, grandfather or grandmother, great grandfather or great grandmother. You cannot use our Service to monitor anyone who is not a child as defined hereinabove without their express written consent.
5.2. Account. To access the Service, you must have an account. You can create an account by completing the registration process.
5.3. Account Security. Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of the account password. You agree to notify Pink Panda Candy immediately if you believe that an account password may have been compromised.
5.4. Account Sharing or Transfers. You may not share or transfer any account. You may not disclose your password to anyone else.
5.5. Cancellation by You. You have the right to cancel any account registered to you at any time. You may cancel any account registered to you by following the instructions on the Site.
5.6. Effect of Account Termination or Cancellation. If you voluntarily terminate an account or allow that account to lapse, you may reactivate that account at any time through the account interface on the Site. Accounts terminated by Pink Panda Candy for any type of abuse, including without limitation a violation of these ToU, may not be reactivated for any reason. Upon any termination or suspension of Service, the monitoring of all computers and/or mobile devices on which the Software is installed shall cease and any information you have submitted on the Site or that which is related to your account may no longer be accessed by you. Furthermore, Pink Panda Candy will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party.
- Restrictions and Conditions of Use.
6.1. Use of Site and Service. Pink Panda Candy permits you to view and use a single copy of the Site solely for your personal, non-commercial use. You agree not to license, create derivative works from, distribute, transfer, sell or re-sell any information, content, or services obtained from the Site.
6.2. No Violation of Laws. You agree that you will not, in connection with your use of the Site, Software or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Software, Site and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
6.3 Misuse of Site and/or Service. You may not connect to or use the Site and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person's use of the Site and/or Service; or (b) attempt to gain unauthorized access to the Site, Service, accounts registered to other users, or the computer systems or networks connected to the Site and/or Service. Furthermore, you may not use the Site or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Site and/or Service, (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding Pink Panda Candy and/or the Software or Service or (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias).
6.5. No Commercial Uses. You agree that you will not use any portion of the Software, the Site or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of any portion of the Software, the Site or Service.
6.6. No Data Mining or Harmful Code. You agree that you will not (a) intercept, examine or otherwise observe any proprietary communications protocol used by the Software or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (b) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Software, the Site or the Service.
7.1. Links from the Site. The Site may contain links to websites operated by other parties. Pink Panda Candy provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of Pink Panda Candy, and Pink Panda Candy is not responsible for the content available on the other sites. Such links do not imply Pink Panda Candy’s endorsement of information or material on any other site and Pink Panda Candy disclaims all liability with regard to your access to and use of such linked websites.
7.2. Links to the Site. Unless otherwise set forth in a written agreement between you and Pink Panda Candy, you must adhere to Pink Panda Candy's linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Pink Panda Candy's and/or its licensors' names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Pink Panda Candy, (iii) when selected by a user, the link must display the Site on full-screen and not within a "frame" on the linking Site, and (iv) Pink Panda Candy reserves the right to revoke its consent to the link at any time and in its sole discretion.
- Social Networks. The Service includes features that operate in conjunction with certain third party social networking websites that you visit ("Social Network Features"). While your use of the Social Network Features is governed by this ToU, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. It is impossible for Pink Panda Candy to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites. You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT Pink Panda Candy WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
- Intellectual Property.
9.1. Trademarks. Pink Panda Candy and the Pink Panda Candy logo are trademarks/service marks of Pink Panda Candy. Unauthorized use of any Pink Panda Candy trademark, service mark or logo may be a violation of federal and state trademark laws.
9.2. Copyright. The Site, Service and Software are protected by U.S. and international copyright laws. Except for your use as authorized in this ToU, you may not modify, reproduce or distribute the content, design or layout of the Site, Service or Software, or individual sections of the content, design or layout of the Site without Pink Panda Candy's express prior written permission.
- Location. The Site and the Service are operated by Pink Panda Candy in the United States.
- Submitted Content. Pink Panda Candy does not claim ownership of any materials you make available through the Site. At Pink Panda Candy's sole discretion, such materials may be included in the Service in whole or in part or in a modified form. With respect to such materials you submit or make available for inclusion on the Site, you grant Pink Panda Candy a perpetual, irrevocable, non-terminable, worldwide, royalty-free and non-exclusive license to use, copy, distribute, publicly display, modify, create derivative works, and sublicense such materials or any part of such materials. You hereby represent, warrant and covenant that any materials you provide do not include anything (including but not limited to text, images, music or video) to which you do not have the full right to grant the license specified herein.
- Site-Provided Postings. The Site may provide users with the ability to post messages on the Site. Pink Panda Candy is under no obligation to review any messages, information or content ("Postings") posted on the Site by users and assumes no responsibility or liability relating to any such Postings. Notwithstanding the above, Pink Panda Candy may from time to time monitor the Postings on the Site and may remove any Postings at its sole discretion.
- Children. The Site and the Service are not directed toward children under 13 years of age nor does Pink Panda Candy knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information toPink Panda Candy.
- DISCLAIMER OF WARRANTIES. THE SITE AND SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Pink Panda Candy MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. Pink Panda Candy DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Pink Panda Candy PROVIDES NO WARRANTY OR GUARANTY OF ANY KIND THAT (I) YOU WILL RECEIVE ANY TYPE OF BENEFIT FROM THE USE OF THE SERVICE; OR (II) THE SERVICE WILL FIND OR COMMUNICATE TO YOU EVERY EXAMPLE OR ALL EXAMPLES OF INTERNET OR MOBILE DEVICE CONTENT ABOUT THE SUBJECT(S) OF THE SEARCHES TO BE UNDERTAKEN BY THE SERVICE.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
- LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Pink Panda Candy, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE "RELATED PARTIES") DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SOFTWARE AND/OR SERVICE, EVEN IF Pink Panda Candy AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF Pink Panda Candy OR ANY OF THE RELATED PARTIES EXCEED THE GREATER OF $50 OR THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Pink Panda Candy and its affiliates shall be limited to the fullest extent permitted by law.
- Indemnification. You agree to indemnify, defend and hold Pink Panda Candy and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys' fees, resulting from or arising out of your use of the Site, the Software and/or the Service or any breach by you of this ToU or any other policies that Pink Panda Candy may issue for the Site, the Software and/or Service from time to time.
- Governing Law; Jurisdiction. This ToU shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of Ohio, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 17 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site, the Software and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Cincinnati, Ohio and you agree to submit to the personal jurisdiction and venue of such courts.
- Binding Arbitration.
17.1. Arbitration Procedures. You and Pink Panda Candy agree that, except as provided below, all disputes, controversies and claims related to this ToU (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 17 and the JAMS Rules, the terms in this Section 17 will control and prevail.
Except as otherwise set forth herein, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and Pink Panda Candy may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND Pink Panda Candy WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
17.2. Location. The arbitration will take place in Quebec, Canada, unless the parties agree to video, phone and/or internet connection appearances.
17.3. Limitations. You and Pink Panda Candy agree that any arbitration shall be limited to the Claim between Pink Panda Candy and you individually. YOU AND Pink Panda Candy AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
17.4. Exceptions to Arbitration. You and Pink Panda Candy agree that any Claim seeking to enforce or protect, or concerning the validity of, any of your or Pink Panda Candy's copyrights, trademarks, or patents and any claim for equitable relief related to such Claims are not subject to the above provisions concerning negotiations and binding arbitration. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court's jurisdiction in lieu of arbitration.
18.1. ToU Revisions. This ToU may only be revised in a writing signed by Pink Panda Candy, or published by Pink Panda Candy on the Site.
18.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Pink Panda Candy as a result of this ToU or your use of the Service or the Software.
18.3. Assignment. Pink Panda Candy may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU withoutPink Panda Candy's prior written consent, and any unauthorized assignment by you shall be null and void.
18.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
18.5. Attorneys' Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
18.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
18.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: Pink Panda Candy, 1000-3700 de la Gauchetiere St W, Montreal, QC, Canada H3B 4W5
18.8. Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively "Export Controls"). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
18.9. U.S. Government Rights. If you are, or are entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Software is "commercial computer software" and "commercial computer software documentation," and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Software are governed by the terms of this Agreement.
18.10. Equitable Remedies. You hereby agree that Pink Panda Candy would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
18.11. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site, the Software and/or Service.