Last revised on May 1, 2012
NOTE: YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT.
- If you are using Our Dream Playground on behalf of a company or other legal entity, you are nevertheless individually bound by this Agreement even if your company has a separate agreement with us. If you do not want to register an account and become a User, do not conclude the Agreement, do NOT click "Sign Up!" or "Sign In" and do not access, view, download or otherwise use any Our Dream Playground webpage, information or services. By clicking "Sign Up!" or "Sign In," you acknowledge that you have read and understood the terms and conditions of this Agreement and that you agree to be bound by all of its provisions. By clicking "Sign Up!" or "Sign In," you also consent to use electronic signatures and acknowledge your click of the "Sign Up!" or "Sign In" button as one.
2. YOUR OBLIGATIONS.
- Compliance with Laws and this Agreement. You must comply with all applicable laws, this Agreement, as may be amended from time to time with or without advance notice, and the policies and processes identified on Our Dream Playground.
- License and warranty for your submissions to Our Dream Playground. You own the information you provide Our Dream Playground under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other Users. Additionally, you grant Our Dream Playground a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to Our Dream Playground, including, but not limited to, any User-generated content, ideas, concepts, techniques or data to the services, you submit to Our Dream Playground, without any further consent, notice and/or compensation to you or to any third parties. Any information you submit to us is at your own risk of loss as noted in this Agreement. By providing information to us, you represent and warrant that you are entitled to submit the information and that the information is accurate, not confidential, and not in violation of any contractual restrictions or other third party rights. It is your responsibility to keep your Our Dream Playground profile information accurate and updated.
- Indemnification. You indemnify us and hold us harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys' fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with this Agreement, including, without limitation, your submission of content that violates third party rights or applicable laws, (2) any content you submit to Our Dream Playground, and (3) any activity in which you engage on or through Our Dream Playground.
- Contributions to Our Dream Playground. By submitting ideas, suggestions, documents, and/or proposals ("Contributions") to Our Dream Playground through its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Our Dream Playground is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Our Dream Playground shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Our Dream Playground may have something similar to the Contributions already under consideration or in development; (e) you irrevocably assign to Our Dream Playground all rights to your Contributions; and (f) you are not entitled to any compensation or reimbursement of any kind from Our Dream Playground under any circumstances.
- Notifications. For purposes of notices to you, Our Dream Playground may place a banner notice across its pages to alert you to certain changes, such as modifications to this Agreement. Alternatively, notice may consist of an e-mail from Our Dream Playground to an e-mail address associated with your account, even if we have other contact information. You also agree that Our Dream Playground may communicate with you through your Our Dream Playground account or through other means including e-mail, mobile number, telephone, or delivery services, including the postal service about your Our Dream Playground account or services associated with Our Dream Playground. You acknowledge and agree that we shall have no liability associated with or arising from your failure to do so maintain accurate contact or other information, including, without limitation, your failure to receive critical information about Our Dream Playground services.
3. YOUR RIGHTS.
- On the condition that you comply with all your obligations under this Agreement, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access Our Dream Playground, through a generally available web browser, mobile device or application (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of KaBOOM! or its Users), view information and use Our Dream Playground and services that we provide on our webpages and in accordance with this Agreement. Any other use of Our Dream Playground contrary to our mission and purpose is strictly prohibited and a violation of this Agreement. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in Our Dream Playground and all related items, including any and all copies made of the Our Dream Playground website.
4. OUR RIGHTS AND OBLIGATIONS.
- Our Dream Playground Availability. For as long as KaBOOM! continues to offer Our Dream Playground, KaBOOM! shall provide and seek to update, improve and expand Our Dream Playground. As a result, we allow you to access Our Dream Playground as it may exist and be available on any given day and have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue Our Dream Playground, partially or entirely, or change and modify fees charged for all or part of Our Dream Playground for you or for all our Users in our sole discretion. All of these changes shall be effective upon their posting on Our Dream Playground or by direct communication to you unless otherwise noted. KaBOOM! further reserves the right to withhold, remove and or discard any content available as part of your account, with or without notice if deemed by KaBOOM! to be contrary to this Agreement. For avoidance of doubt, KaBOOM! has no obligation to store, maintain or provide you a copy of any content that you or other Users provide when using Our Dream Playground.
- Interactions with other Users. You are solely responsible for your interactions with other Users. We may, in certain circumstances, prohibit you from contacting other Users through use of Our Dream Playground or otherwise limit your use of Our Dream Playground. We reserve the right, but have no obligation, to monitor disputes between you and other Users and to restrict, suspend, or close your account if we determine, in our sole discretion, that doing so is necessary to enforce this Agreement.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
- OUR DREAM PLAYGROUND IS PROVIDED SOLELY TO FACILITATE THE CONSTRUCTION OF USER-LED PLAYGROUND CONSTRUCTION AND IMPROVEMENT OR SIMILAR PROJECTS GENERATED BY USERS OF OUR DREAM PLAYGROUND. KaBOOM! UNDERTAKES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ALL LIABILITY RELATED TO SUCH USER PROJECTS, WHICH ARE THE RESPONSIBILITY OF THE USER IMPLEMENTING SUCH PROJECTS. ANY USER OF OUR DREAM PLAYGROUND ACCEPTS ALL RESPONSIBILITY AND RISK OF LOSS ASSOCIATED WITH THE USE OF OUR DREAM PLAYGROUND, INCLUDING WITH RESPECT TO ANY USER PROJECT OR ANY FUNDS CONTRIBUTED TO A USER PROJECT. A THIRD PARTY PROVIDER IS RESPONSIBLE FOR THE COLLECTION AND ADMINISTRATION OF AMOUNTS DONATED THROUGH OUR DREAM PLAYGROUND AND KaBOOM! HAS NO RESPONSIBILITY IN CONNECTION WITH SUCH FUNCTIONALITY. YOUR USE OF OUR DREAM PLAYGROUND IS AT YOUR SOLE RISK.
- DO NOT RELY ON OUR DREAM PLAYGROUND, ANY INFORMATION THEREIN, OR ITS CONTINUATION. WE PROVIDE THE PLATFORM FOR OUR DREAM PLAYGROUND AND ALL INFORMATION AND SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. OUR DREAM PLAYGROUND DOES NOT CONTROL OR VET USER GENERATED CONTENT FOR ACCURACY. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS.
- TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NON-INFRINGEMENT. IF YOU ARE DISSATISFIED OR HARMED BY OUR DREAM PLAYGROUND OR ANYTHING RELATED TO OUR DREAM PLAYGROUND, YOU MAY CLOSE YOUR OUR DREAM PLAYGROUND ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7 ("TERMINATION") AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.
- OUR DREAM PLAYGROUND IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH OUR DREAM PLAYGROUND TO ANYONE. IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF OUR DREAM PLAYGROUND WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE WEBSITE MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US.
- OUR DREAM PLAYGROUND DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF OUR DREAM PLAYGROUND BY OTHER USERS OF THE COMMUNITY; THEREFORE, OUR DREAM PLAYGROUND DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
- OUR DREAM PLAYGROUND DOES NOT GUARANTEE THAT THE SERVICES IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF OUR DREAM PLAYGROUND MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. OUR DREAM PLAYGROUND DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, OUR DREAM PLAYGROUND DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE OUR DREAM PLAYGROUND SITE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
6. LIMITATION OF LIABILITY.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
- Neither KaBOOM! nor any of our subsidiaries, affiliated companies, agents, employees or directors ("KaBOOM! Affiliates") shall be cumulatively liable for (a) any damages in excess of five times the most recent monthly fee that you paid for a Premium Service, if any, or US $100, whichever amount is greater, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of Our Dream Playground, any platform applications or any of the content or other materials on, accessed through or downloaded from Our Dream Playground. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
- Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
- Not apply to any damage that KaBOOM! may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement.
- Mutual Rights of Termination. You may terminate this Agreement, for any or no reason, at any time, with notice to KaBOOM! pursuant to Section 8.C. This notice will be effective upon our processing your notice. KaBOOM! may terminate the Agreement and your account for any reason or no reason, at any time, with or without notice. This cancellation shall be effective immediately or as may be specified in the notice. Termination of your Our Dream Playground account includes disabling your access to Our Dream Playground and may also bar you from any future use of Our Dream Playground.
- Misuse of Our Dream Playground. KaBOOM! may restrict, suspend or terminate the account of any User who abuses or misuses Our Dream Playground. Misuse of Our Dream Playground includes creating multiple or false profiles; using Our Dream Playground commercially without our authorization, infringing any intellectual property rights, violating this Agreement, or any other behavior that KaBOOM!, in its sole discretion, deems contrary to its purpose.
- Effect of Termination. Upon the termination of your Our Dream Playground account, you lose access to Our Dream Playground. The terms of this Agreement shall survive any termination, except Sections 3 ("Your Rights") and 4.A-B, and D ("Our Rights and Obligations") hereof.
8. GENERAL TERMS.
- Severability. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
- Governing Law and Forum for Legal Disputes. This Agreement or any claim, cause of action or dispute ("claim") arising out of or related to this Agreement shall be governed by the laws of the state of New York regardless of your country of origin or where you access Our Dream Playground, and notwithstanding of any conflicts of law principles (to the extent that the application of the law of another jurisdiction would be required thereby) and the United Nations Convention for the International Sale of Goods. You and KaBOOM! agree that all claims arising out of or related to this Agreement must be resolved exclusively by a state or federal court located in New York, New YOrk, except as otherwise agreed by the parties. You and KaBOOM! agree to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such claims. Notwithstanding the above, you agree that KaBOOM! shall be entitled to seek injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
- Notices and Service of Process. In addition to Section 2.E. ("Notifications"), we may notify you via postings on www.Our Dream Playground.org. You may contact us here or via mail or courier at:
- Amendments to this Agreement. We reserve the right to modify, supplement or replace the terms of the Agreement, effective upon posting at www.OurDreamPlaygroung.org or notifying you otherwise. If you do not want to agree to changes to the Agreement, you can terminate this Agreement at any time pursuant to Section 7 (Termination).
- No informal waivers, agreements or representations. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other acts or omissions by any Our Dream Playground Affiliate shall be deemed legally binding on any Our Dream Playground Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of Our Dream Playground.
- No Injunctive Relief. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of Our Dream Playground or its services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of Our Dream Playground or any content or other material used or displayed through Our Dream Playground.
- Third Party Beneficiaries. Entities other than KaBOOM!, Inc., in which KaBOOM!, Inc. owns a 50% or greater interest ("Affiliate") are not parties, but intended third party beneficiaries of this Agreement, with a right to enforce this Agreement directly against you.
- Assignment and Delegation. You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We also may substitute, by way of unilateral novation, effective upon notice to you, KaBOOM!, Inc. for any third party that assumes our rights and obligations under this Agreement.
- Potential Other Rights and Obligations. You may have rights or obligations under local law other than those enumerated here if you are located outside the United States.
ATTN: Legal Department
4455 Connecticut Avenue, NW, Suite B100
Washington, DC 20008 USA
Additionally, KaBOOM! accepts service of process at this address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.
9. OUR DREAM PLAYGROUND USER "DOS" and "DON'TS."
You agree that you will not use Our Dream Playground to do any of the following:
- Do undertake the following:
- Comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements;
- Provide accurate information to us and update it as necessary;
- Review and comply with notices sent by KaBOOM! concerning Our Dream Playground; and
- Use Our Dream Playground in a professional manner and only for its intended purpose.
- Act dishonestly or unprofessionally by engaging in unprofessional behavior by posting, transmitting or otherwise making available inappropriate, inaccurate, or objectionable content to Our Dream Playground, including, without limitation;
- any content that infringes, misappropriates or otherwise violates any patent, trademark, trade secret, copyright or other contractual or proprietary right of any party;
- any content that is unlawful, threatening, abusive, harmful to minors (including any form of child pornography or indecent depictions of children), harassing, intimidating, tortuous, defamatory, vulgar, obscene, libelous, defamatory, invasive of another's privacy, hateful or racially, ethnically or otherwise objectionable;
- any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements, any private information of any third party, content you did not create or content that you did not have permission to post);
- any unsolicited communications or advertising not authorized by KaBOOM!, promotional materials or any other form of solicitation for any type of information; or
- any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- obtain any information or, content from Our Dream Playground using any robot, spider, scraper or other automated means for any purpose;
- take any action that imposes or may impose, as determined in our sole discretion, an unreasonable or disproportionately large load on our IT infrastructure;
- intentionally or unintentionally violate any applicable local, state, national or international law;
- upload any content other than those of a personal nature;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity; or
- collect or store personal data, including email addresses or data about other Users in connection with the prohibited activities described in this paragraph;
- attempt to gain unauthorized access to, or circumvent or attempt to circumvent any security or access control technology implemented in, Our Dream Playground or the servers and network associated with Our Dream Playground;
- use Our Dream Playground or any email in any KaBOOM! domain to deliver unsolicited bulk email; or
- publicize or offer any contest, giveaway, or sweepstakes ("promotion") on KaBOOM! without following all applicable laws.