Last Updated Date: March 30, 2020
BY CLICKING AN “I AGREE” OR “I ACCEPT” BUTTON; COMPLETING THE REGISTRATION PROCESS; AND/OR DOWNLOADING THE PARENT APP, YOU REPRESENT THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD AND HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY. If you do not agree with every provision in this Agreement or are not at least eighteen (18) years old, then you may not use the Parent App in any way.
- This Agreement is subject to occasional revision (see Section 8.1 of this Agreement), and we reserve the right to charge fees for downloading or using the Parent App in the future.
- Please be aware that Section 7 of this Agreement contains an arbitration agreement which will, with limited exceptions, require disputes between us to be submitted to binding and final arbitration. You will be permitted to pursue claims and seek relief against us only on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding. You are waiving your right to seek relief in a court of law and to have a jury trial on your claims.
To use certain features of the Parent App, you and/or your School must register you for an account (“Account”) using information that you supply to your School (such as your email address and your association as parent/guardian with a child). You represent and warrant that: (a) all required registration information you submit to your School or directly to us is truthful and accurate; (b) you are authorized to receive information about the child or children associated with your account in the Parent App and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. GoGuardian cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. GoGuardian Parent App
2.1 Access and Use
Subject to this Agreement, GoGuardian grants you a limited non-exclusive, non-transferable, non-sublicensable, non-assignable, license to download, install and use a copy of the Parent App on a single mobile device or computer that you own or control and to use and access the Parent App solely for your own personal, non-commercial use, subject to any use limitations put in place or provided by Parent App. Any future release, update or other addition to the Parent App shall be subject to the Agreement. Any unauthorized use of the Parent App terminates the licenses granted by GoGuardian pursuant to the Agreement. Furthermore, with respect to a Parent App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. With respect to a Parent App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Parent App on a shared basis within your designated family group. GoGuardian endeavors to make the Parent App accessible twenty-four (24) hours a day, but you may experience occasional downtime as a result of routine or emergency maintenance or events beyond our reasonable control.
2.2 Support and Maintenance
Your School is the main account holder of the GoGuardian Offering(s) with which the Parent App is associated. Because your School understands how it has implemented and uses the GoGuardian Offering(s) with which the Parent App is used, you should contact your school, and not GoGuardian, if you have any questions about the Parent App or information contained in the Parent App. You acknowledge and agree that your School (rather than GoGuardian) will provide you with support or maintenance in connection with this Parent App.
2.3 Modifications or Discontinuation
2.3.1 By Your School
Because your School manages its GoGuardian account, including managing this Parent App, your School and reserves the right, at any time, to modify, suspend, or discontinue the Parent App (or any part thereof) without notice to you. You agree that we will not be liable to you or to any third party for any such modification, suspension, or discontinuation.
2.3.2 By GoGuardian
GoGuardian may require you to accept updates to the Parent App that you have installed on your computer or mobile device. You acknowledge and agree that GoGuardian may update the Parent App with or without notifying you. You may need to update third-party software from time to time in order to use Parent App. GoGuardian reserves the right, at any time, to discontinue the Parent App (or any part thereof). If GoGuardian elects to discontinue offering the Parent App, GoGuardian will notify you within the Parent App interface or by sending you an email. If GoGuardian discontinues the Parent App and you paid for access to it, GoGuardian shall also issue you a pro rata refund for the period of your term that was discontinued.
2.4 Acceptable Use
2.4.1 By Your School
Your School may have an acceptable technology use policy that applies to users of its accounts (including your account on the Parent App), devices, and network. If you have any questions or are unaware of your School’s policies that might apply to your use of the Parent App, please ask your School administrator for a copy of all appropriate policies, including any acceptable technology use policies that apply.
2.4.2 By GoGuardian
We need your help to ensure that the GoGuardian Offerings are used safely and appropriately. You shall not, directly or indirectly, and shall not authorize any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, structure, ideas, algorithms, or associated know-how of, the Parent App, or reconstruct, or discover, any hidden or non-public elements of the Parent App; (b) translate, adapt, or modify the Parent App or any portion thereof; (c) write or develop any program based upon the Parent App or any portion thereof, or otherwise use the Parent App in any manner for the purpose of developing, distributing or making accessible products or services that compete with the Parent App; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Parent App or any rights thereto; (e) export, sell or distribute any content or portion of the Parent App, allow access to it (or any content or other portion thereof) by any third persons, make the Parent App available on a service bureau basis, or otherwise access or use the Parent App for the benefit of a third party; (f) transmit unlawful, infringing, or harmful data or code or any other data or code that you are not authorized to transmit, either to or from the Parent App; (g) interfere with, disrupt, or create an undue burden on servers or networks connected to the Parent App; (h) attempt to gain unauthorized access to the Parent App (or to other computer systems or networks connected to or used together with it); (i) alter or remove any trademarks or proprietary notices contained in or on the Parent App; (j) engage in framing, mirroring, or otherwise simulating the appearance or function of the Parent App; (k) perform or publish any performance or benchmark tests or analyses relating to the Parent App; or (l) otherwise use the Parent App except as expressly permitted hereunder.
You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Parent App and its content are owned by GoGuardian or our suppliers. Neither this Agreement nor your access to or use of the Parent App transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. GoGuardian and its suppliers reserve all rights not granted in this Agreement.
2.6 Compliance with Law
You are responsible for using the Parent App in compliance with all applicable federal and state laws and regulations. You shall not use the Parent App in violation of any applicable law.
GoGuardian may periodically request that you provide, and you agree to provide to GoGuardian, feedback regarding the use, operation and functionality of the Parent App (“Feedback”). Such Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features. You hereby assign to GoGuardian all rights in the Feedback and agrees that GoGuardian shall have the right to use the Feedback and related information in any manner it deems appropriate. You agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary.
4. Warranties, Disclaimer and Release
4.1 You represent and warrant that you have all necessary right, title, interest, authorizations, and permissions to: (a) provide, provide access to, disclose, or submit any data, content, or information, including Feedback, that you provide, provide access to, disclose, or submit to us or the Parent App, or that you authorize or request us to access on your behalf, as applicable; and (b) grant the rights and permissions granted hereunder with respect to any data, content, or information, including Feedback.
4.2 GoGuardian provides Parent App using a commercially reasonable level of skill and care, but we cannot make guarantees about the operation, use or results achieved through the use of the Parent App. ACCORDINGLY, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PARENT APP IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND GOGUARDIAN (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT ARISING FROM USE OF THE PARENT APP. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE PARENT APP WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. YOU UNDERSTAND AND AGREE THAT GOGUARDIAN IS UNDER NO OBLIGATION OTHER THAN TO PROVIDE PARENT APP TO YOU IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
4.3 You hereby release and forever discharge GoGuardian (and our officers, employees, agents, affiliates, subsidiaries, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to your use of the Parent App, including but not limited to any interactions with, or the conduct of, the School through which you are associated with us. 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.”
5. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, (A) IN NO EVENT SHALL GOGUARDIAN (OR OUR SUPPLIERS OR OUR OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES (OR ANY SUCH SUBSIDIARIES' AND AFFILIATES’ RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES ) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, ANY PART OF THE PARENT APP, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B), OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GOGUARDIAN AND YOU.
6. Term and Termination
Subject to this Section, this Agreement will remain in full force and effect while you use the Parent App. If your School’s account with us expires or terminates, your access to the Parent App will also terminate with or without notice to you.
6.2 Termination; Suspension
We may terminate your rights to use the Parent App if you breach any term contained herein. In addition, we may terminate this Agreement without cause (i.e., not as a result of your breach) provided that we provide you at least thirty (30) days’ prior notice to you and, if any fees were paid by you (not your School) for using this Parent App, GoGuardian shall provide you with a refund of the fees allocable to the unused portion of your subscription term to this Parent App. In addition, GoGuardian, may at its discretion, suspend your access to the Parent App for your breach of this Agreement, if GoGuardian has reasonable grounds to suspect that any Account information provided by you is untrue, inaccurate, not current or incomplete, or if GoGuardian deems it reasonably necessary to avoid or mitigate harm to GoGuardian, you, any other of GoGuardian’s customers, users, or a third party if access to the Parent App were not suspended, or to comply, in our sole discretion, with legal requirements; provided that access is reinstated as soon as reasonably practicable after the circumstances given rise to the suspension have abated.
6.3 Effects of Termination
Upon termination of your rights under this Agreement, your Account and right to access and use the Parent App will terminate immediately. GoGuardian will not have any liability to you for any termination of your rights under this Agreement, including for termination of your Account. Even after your rights under this Agreement are terminated, the following provisions of this Agreement will remain in effect: Sections 2.3, 2.4, 2.5, 2.6, and 3 through 8.
7. Governing Law and Dispute Resolution
7.1 Governing Law and Venue
This Agreement and any dispute arising from or relating to this Agreement are governed by the laws of the state of California, United States, without regard to its conflict of law principles. You further agree to accept service of process by mail. To the extent the parties are permitted under this Agreement to initiate litigation in court, the parties consent to the exclusive personal jurisdiction and venue in the courts located in Los Angeles County, California.
7.2 Dispute Resolution; Binding Arbitration; Class Action Waiver (“Arbitration Agreement”)
In the event of a dispute, claim, or controversy arising out of or relating to this Agreement, any GoGuardian Offering, including the Parent App, any person’s access to and/or use of a GoGuardian Offering, including the Parent App, and/or the provision of content, features, and/or technology on or through a GoGuardian Offering, including the Parent App (collectively, “Claims”), the parties must first give the other notice of the Claim. This notice must include a brief written statement with the name, address, and contact information of the party giving it, as well as the facts giving rise to the Claim and the relief requested. You must send any such notice to GoGuardian by email to email@example.com AND by U.S. Mail to GoGuardian, 2030 East Maple Avenue, El Segundo, CA 90245. If we have your contact information, we will send any such notice to you by U.S. Mail and your email address.
The parties shall use reasonable, good faith efforts to resolve any Claim through consultation and good faith negotiations within thirty (30) days from the date that any notice of a Claim is sent. After thirty (30) days, you or GoGuardian may resort to the other alternatives described in this Section 7.2. Notwithstanding the foregoing, the notice requirement in this section and the 30-day negotiation period required shall not apply to Claims involving patents, copyrights, moral rights, trademarks, trade secrets or piracy or unauthorized use of a GoGuardian Offering, including the Parent App.
7.2.1 Binding Arbitration
Arbitration Rules and Forum. Except as otherwise specifically set forth below, any Claims between you and GoGuardian, if unresolved through informal consultation and negotiation pursuant to the preceding paragraph, shall be resolved by binding arbitration to be held in Los Angeles, California. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by this Agreement, and administered by JAMS. The JAMS Rules and fee information are available at www.jamsadr.org or by calling JAMS at 1-800-352-5267. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement, and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and GoGuardian. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.
Exceptions: Litigation of Intellectual Property and Small Claims Court Claims. Claims concerning patents, copyrights, moral rights, trademarks, and trade secrets, and Claims of piracy or unauthorized use of any GoGuardian Offering, including the Parent App, shall not be subject to arbitration under this Section 13.2.1. In addition, you or GoGuardian may choose to pursue a Claim in small claims court where jurisdiction and venue over you and GoGuardian otherwise qualify for such small claims court and where the Claim does not include a request for any type of equitable relief.
Authority of Arbitrator. In binding arbitration, the arbitrator shall have the authority (a) to grant motions dispositive of all or part of any Claim; (b) to award monetary damages; and (c) to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. Both parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent you or GoGuardian from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
7.2.2 Class Action Waiver
YOU AND GOGUARDIAN HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and GoGuardian are instead electing that all Claims not otherwise resolved informally as permitted above shall be resolved by arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
8. International Users
The Parent App can be accessed from countries around the world and may contain references to services or content that are not available in your country. These references do not imply that GoGuardian intends to announce such services or content in your country. The Parent App is controlled and offered by GoGuardian from its facilities in the United States of America. GoGuardian makes no representations that the Parent App is appropriate or available for use in other locations. Those who access or use the Parent App from other countries do so at their own volition and are responsible for compliance with local law.
Before we make a material change to this Agreement, we will notify you as described in this Section. We may make immaterial changes without notifying you. Please regularly review the Parent App and your Account for any changes. On the Parent App, we provide notice of any changes by posting the updated Agreement with a “Last Updated” date indicating the date of our most recent update. If we make material changes to this Agreement, we will also take an additional step (beyond posting on the Parent App) of notifying you of changes in another way that we believe is reasonably likely to reach you, such as emailing you at your email address associated with your Account, posting an announcement on the Parent App, or via a pop up in the Parent App. Some changes may require your consent before further use of the Parent App is permitted. If you do not agree to any change(s), you agree to stop using the Parent App. Otherwise, your continued use of the Parent App after a change made in accordance with this provision constitutes your acceptance of such change(s).
9.2 App Stores
You acknowledge and agree that the availability of the Parent App and the Services is dependent on the third party from whom you received the Parent App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and GoGuardian and not with the App Store. GoGuardian, not the App Store, is solely responsible for GoGuardian Offerings and the Parent App, 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 Parent App, 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 Parent App and any other mobile application offered by GoGuardian that you obtain through the App Store. You agree to comply with, and your license to use the Parent App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the Parent App and any other mobile application offered by GoGuardian that you obtain through the App Store. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
9.3 Accessing and Downloading the Parent App from iTunes
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
You acknowledge and agree that (a) the Agreement is concluded between you and GoGuardian only, and not Apple, and (b) GoGuardian, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between GoGuardian and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of GoGuardian.
You and GoGuardian acknowledge that, as between GoGuardian and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (a) product liability claims; (b) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
You and GoGuardian acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between GoGuardian and Apple, GoGuardian, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
You and GoGuardian acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
9.4 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.
9.5 Electronic Communications
The communications between you and GoGuardian may take place via electronic means, whether you use the Parent App or send GoGuardian e-mails, or whether GoGuardian posts notices on or through the Parent App or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from GoGuardian in an electronic form; and (b) agree that all terms and conditions, notices, disclosures, and other communications that GoGuardian provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
This Agreement constitutes the entire agreement between you and GoGuardian with respect to the Parent App and supersede all prior agreements between you and GoGuardian and any other contractual obligations GoGuardian or you may have to the other, whether written or oral, relating to the same subject matter. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without GoGuardian’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Where GoGuardian requires that you provide an e-mail address (both directly to GoGuardian or through your School), you are responsible for providing your most current e-mail address. If the last e-mail address you provided to GoGuardian (or the last e-mail address that you provided to your School communicated to GoGuardian) is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, GoGuardian’s dispatch of an e-mail containing such notice will nonetheless constitute effective notice. You may give notice to GoGuardian at the following address: 2030 East Maple Avenue, El Segundo, California 90245. Such notice shall be deemed given when received by GoGuardian by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.