KAPPBOOM TERMS OF SERVICE


These Terms of Service (“Agreement”) govern your access to and use of the service(s) (“Service”) provided by Kappboom, Inc. (Kappboom,” “we,” or “us”) through its applications for use on the iPhone, iPad, iPod Touch, or other mobile platforms. PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE. 

Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted in connection with such features.  All such additional terms are incorporated by reference into this Agreement.

  1. 1. Privacy and UDID  
    1. 1.1 UDID.  We may collect and use information related your device, such as the unique device ID ("UDID"), the device type, operating system, and carrier information. We may collect and store information about your activities on the app and online/offline status and tie that information to your UDID. We may share such information with vendors who power certain features of the App such as voice recognition or push notifications, and with analytics vendors who help us better understand our App user demographics. Advertisers and advertising networks that place ads in the App may also collect, store and use your information about your usage of the App, your general geographic area and interaction with ads and to link this data with your UDID for their own usage, including targeting ads to you. With your consent, We may collect and store your exact geographic location information to power geographic-related features. We may share this information with advertisers and advertising networks to target advertisements to you based on your geographic location. If you interacted with one of our mobile ads promoting the App, we may have used an ad tag in order to recognize you when you install the App. We do this to measure the performance of our ad campaigns. 
  1. 1. User Content  
    1. 1.1 User Content License.  By posting or submitting content to any area of the Service available to other users, including wallpapers, images, photos, and other content  ("Publicly Posted Content"), you grant to Kappboom an irrevocable, perpetual, non-exclusive, royalty-free and fully paid, worldwide, transferable license, with the right to sublicense through multiple tiers, to reproduce, distribute, modify, publicly display, publicly perform, prepare derivative works of, transmit, and otherwise use such Publicly Posted Content, in any format or medium now known or developed in the future.  You represent and warrant that: (a) you have the right to grant the foregoing license and to post the Publicly Posted Content; (b) such posting and use of the Publicly Posted Content as contemplated pursuant to the foregoing license does not and will not infringe, misappropriate, violate or contravene any third party rights (including any intellectual property rights); and (c) all information you provide in connection with wallpapers, images, and photos that you submit, such as author name, source, and attribution, is complete and accurate. 
    2. 1.2 User Content Removal.  You agree that Kappboom has the right (but is not obligated) to review Publicly Posted Content and delete any such Publicly Posted Content for any reason in its sole discretion.  You further agree that Kappboom has the right to take any action, including deletion of Publicly Posted Content or the barring of access to the Service, in response to conduct or Publicly Posted Content that in the sole judgment of Kappboom violates this Agreement or is offensive, illegal, or violates the rights of, harms, or threatens the safety of, other users or third parties.  You are solely responsible for the Publicly Posted Content that you post on the Service.
    3. 1.3 Prohibited Content.  The following is a partial list of content that is prohibited on the Service (“Prohibited Content”). Kappboom reserves the right (but is not obligated) to investigate and to take appropriate legal action in its sole discretion for any violation of this Agreement, including removing Prohibited Content from the Service, notifying the appropriate authorities regarding and identifying the source of Prohibited Content, and barring violators from accessing the Service.  Prohibited Content includes content that:

(a) is patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

(b) bullies, harasses or advocates harassment of another person;

(c) promotes or contains information that you know, or should know, is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

(d) promotes or contains an illegal and/or unauthorized copy of another person’s copyrighted work (whether marked as such or not);

(e) contains a virus, time bomb, worm, corrupted file, or other software routine capable of disrupting, disabling, or harming the operation of, or providing unauthorized access to the Service;

(f) is obscene;

(g) exploits people under the age of 18;

(h) provides instructional information about illegal activities; 

(i) undermines the quality, appeal, or usefulness of the Service; or

(j) solicits passwords or personal identifying information of any kind for commercial or unlawful purposes from other users, or engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.

    1. 1.4 Feedback.  Kappboom will treat any feedback or suggestions you provide to it as non-confidential and non-proprietary. Kappboom reserves the right to use any feedback or suggestions you provide in any manner and for any purpose without any obligation to compensate you.
    2. 2. Copyright Policy.  If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512.  At a minimum, you must provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; an identification of the location on the Service of the material that you claim is infringing; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Kappboom’s Copyright Agent for notice of claims of copyright infringement can be reached by writing to the following: copyrights@kappboom.com.
    3. 3. Ownership.  Kappboom and its licensors own the Service, all content contained therein, and all intellectual property rights relating to the foregoing. You agree not to reproduce, license, distribute, trade, rent, lease, sell or exploit for any commercial purposes, any portion or use of, or access to, the Service or any content contained therein. Any unauthorized reproduction or modification, distribution, display, or performance of any portion of the Service or any content contained therein is strictly prohibited.  Kappboom and its licensors reserve all rights not expressly granted under this Agreement. 
    4. 4. Third Party Websites and Services.  Our Service may contain links to Internet sites and services maintained by third parties. These links are provided for your reference only. We do not control, operate or endorse in any respect information, products, or services on such third-party sites and are not responsible for their content. Many third-party sites and services have their own terms of use and privacy policies that differ from ours. These Terms of Service only apply to our Service and do not apply to any other site or service. 
    5. 5. Term.  Subject to this Section, this Agreement will remain in full force and effect while you use the Service.  Kappboom has the right in its sole discretion to terminate this Agreement and/or suspend or terminate your access to the Service without prior notice.  Upon termination of this Agreement, your right to access and use the Service will terminate immediately.  Kappboom reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. You agree that we will have no liability to you or any third party for any costs, expenses, losses, damages, or liabilities arising out of or related to our termination of this Agreement, suspension or termination of your access to the Service, or suspension, discontinuation, or modification of the Service.  Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 5 to 14.
    6. 6. Warranty Disclaimer.  TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, Kappboom provides THE SERVICE "AS-IS" AND AS AVAILABLE AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT.  Kappboom DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICE.  Kappboom MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.  YOU AGREE THAT Kappboom IS NOT RESPONSIBLE FOR THE TIMELINESS OF, DELETION OF, MIS-DELIVERY OF, OR FAILURE TO STORE ANY COMMUNICATIONS OR PERSONALIZATION OR PREFERENCE SETTINGS.  Kappboom DOES NOT ASSUME ANY OBLIGATION TO MONITOR ACTIVITIES CONDUCTED ON THE SERVICE.
    7. 7. Limitation of  Liability.  TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, Kappboom will NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY LOST PROFITS, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE UNDER THIS AGREEMENT, EVEN IF Kappboom HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, Kappboom’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS (US $50).  THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT.  YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF Kappboom’S LIABILITY ARE ESSENTIAL AND FUNDAMENTAL PARTS OF THIS AGREEMENT WHICH ARE NECESSARY TO INDUCE Kappboom TO ENTER INTO THIS AGREEMENT.
    8. 8. User Indemnification.  You agree to indemnify and hold Kappboom, its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney's fees, arising out of or relating to your: (a) use of the Service; (b) breach of this Agreement; or (c) breach or inaccuracy of any representation or warranty made under this Agreement.
    9. 9. User Disputes and Release.  You are solely responsible for your interactions with other users. Kappboom reserves the right, but has no obligation, to monitor, or take any action Kappboom deems appropriate regarding, disputes between you and other users.  To the extent permitted under applicable laws, you hereby release Kappboom from any and all claims or liability related to: (a) any content posted on the Service by you or other users; (b) the conduct, whether online or offline, of any other user; and (c) termination or denial of access to or use of the Service.

You hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) 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.”

    1. 10. Disclosures.  Kappboom is located at Sunnyvale, CA 94086.  If you are a California resident, 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.
    2. 11. Electronic Communications.  The communications between you and Kappboom use electronic means, whether you use the Service or send us emails, or whether Kappboom posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Kappboom in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Kappboom provides to you electronically satisfy any legal requirement that such communications would satisfy if made in a hardcopy writing. The foregoing does not affect your non-waivable rights. 
    3. 12. General.  This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers must be in writing. 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. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. Unless the context clearly requires otherwise, “includes” and “including” are not limiting. This Agreement constitutes the final, complete, and exclusive  agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
    4. 13. Changes.  We may amend this Agreement from time to time.  If we make material changes to the Agreement, we will notify you through a prominent notice through the Service.  Any material changes to this Agreement will be effective upon thirty (30) calendar days following our posting of notice of the changes on our Service.  These changes will be effective immediately for new users of our Service.  Except for such amendments, no amendment to this Agreement will be valid unless in a writing hand signed by the parties.
    5. 14. Copyright and Trademark Notice.  Certain names, slogans, graphics, logos, service marks, and trade names used on the Service are the trademarks of Kappboom and may not be used without permission in connection with any third party products or services.  Other trademarks, service marks, and trade names that may appear on the Service are the property of their respective owners. Copyright © 2010, Kappboom, Inc.

This Agreement was last revised 04/14/2010.