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MyKumbaya Mobile Application and Service

TERMS OF USE

These Terms of Use (“Terms”) apply to the use of the KUMBAYA mobile application (“App”).  The App is provided by MYKUMBAYA, Inc. (“MYKUMBAYA”, “we”, “us” or “our”), and these Terms represent a binding agreement between you as the user of the App (“you” or “your”) and MYKUMBAYA.  By downloading and using the App and using the services (“Services”) provided by the App, you confirm your acceptance of these Terms and our associated Privacy Policy.  If you do not agree to these Terms, you must immediately uninstall the App and discontinue its use. 

NOTE: THESE TERMS CONTAIN AN ARBITRATION PROVISION WITH A CLASS ACTION WAIVER AND A WAIVER OF THE RIGHT TO A JURY.  PLEASE REVIEW SECTION 17 BELOW BEFORE DOWNLOADING OR USING THE APP OR OUR SERVICES.

1. Description

 

The KUMBAYA App and Services are designed to provide users the ability to interact and ask for favors and other assistance (“Favors”) from their friends, relatives and community they trust (“Service Providers”).   When you ask for and receive a Favor from a Service Provider, we record that Favor to your account, and you are expected to return a Favor to that Service Provider at some point.  Favor have no cash value and cannot be redeemed for cash.

 

We merely facilitate your interactions with Service Providers and other users of the Service, and make no representations or warranties about the Service Providers or the Favors.  You are solely responsible for evaluating and assessing the suitability of the Service Provider to perform the Favor and assume all risk in connection with the Services. 

2. Changes

We may from time to time modify, amend or vary these Terms (collectively, “Modifications”).  Please check these Terms regularly to ensure you are aware of any Modifications made by us.  If you continue to use this App and Services, you are deemed to have accepted such Modifications.  If you do not agree to such Modifications, you should discontinue use and uninstall the App.

 

You understand and agree that we may change or discontinue the App or change or remove functionality of the App any time at our sole discretion.  YOU AGREE THAT WE CAN SEND UPDATES TO THE APP DIRECTLY TO YOUR MOBILE DEVICE. 

3. App Store Terms

The App may be available for download from one or more platforms, such as Apple iTunes or Google Play (“App Stores”).  Your download, installation, access to or use of the App is also bound by the terms and conditions and privacy policies of the applicable App Store (“App Store Terms”).  If there is any conflict between these Terms and the App Store Terms, then these Terms will prevail. 

This App is independent of and is not associated, affiliated, sponsored, endorsed or in any way linked to any App Store.  You and we acknowledge that these Terms are entered into between you and us only, and not with any App Store, and we, not the App Store, are solely responsible for the App and the content thereof to the extent specified in these Terms.

 

You and we acknowledge that we, not the relevant App Store, are responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (ii) claims arising under consumer protection or similar legislation.

 

You and we acknowledge and agree that the relevant App Store, and that App Store’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, that App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.

4. Mobile Device and Carrier Requirements

 

You acknowledge that your agreement with your mobile network provider (“Mobile Provider”) will apply to your use of the App.  You acknowledge that you may be charged by your Mobile Provider for data services while using certain features of the App or any other third-party charges as may arise and you accept sole responsibility for such charges.  If you are not the bill payer for the Device (defined below) being used to access the App, you will be assumed to have received permission from the bill payer for using the App.  You must also ensure that your use of the App is not in violation of your mobile device agreement or any wireless data service agreement.

5. Push Notifications

As an integral part of the Services, and subject to the ability of your Device, we will send you push notifications to your Device through the App.  In accepting these Terms, downloading the App and using the Services, you agree to receive push notifications regarding requests for Favors, marketing and promotional offerings, optional Services and new features, upgrades, operational and administrative matters and updates and upgrades to the App or Services.  It is possible that you will still receive notifications from the application even when the App is closed, all in accordance with the users request to receive such notifications, A user who does not wish to receive said notifications/updates, and in addition, any notification that the App may deliver at a later date, may turn this off (the option to receive notifications via the push notification mechanism) by changing the option in the App settings, or alternatively, by turning off the Device’s push notification service.  However, this may limit your ability to use the App or the Services.

6. Eligibility and Registration

You must be at least 18 years of age and a resident in the United States to use the App and sour Services.  You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.  You can register to participate to use the App and other Services offered through the App by completing our registration form.  You agree to provide complete and accurate information when registering to use the App and Services to keep that information updated. 

7. Privacy/Device and Geolocation Data

Any personally identifiable information that you provide through the App and Services will be processed and shared in accordance with our Privacy Policy.  Please note that we may collect information regarding your Device, such as IP address, network provider, mobile carrier, mobile browser type, timestamp, time zone, information about the speed, bearing, orientation, and altitude of a device, or other device-identifying information.  We may also collect precise geolocation data from or about your Device, which may be expressed by latitude-longitude coordinates obtained through GPS tools, Wi-Fi data, cell tower triangulation or other techniques.  Our use of such information is described in our Privacy Policy.

 

When you register to use the App and Services, you will be asked to provide your contacts.   We use this information to facilitate your communications with others with whom you may want to interact or request Favors.   You should only share contact information for persons 18 years of age or older, and only if you have the right to share such information. 

 

In addition, when you register or login to the App using your Facebook account, you are authorizing us to access your certain Facebook account information, including your first and last name, email address and profile picture, which we may display or disclose to other users of the App.  This will not result in any posts on your timeline or us obtaining access to your contact information. 

 

You can also register to use your App through your Gmail account.  If you register or login through Gmail we collect your first and last name, profile picture and email address.  In addition, with your permission, we can also collect your phone numbers, calendar, and contacts.   We use this information to help you request and respond to Favors from persons that you trust.

 

When using the Services you should assume that anything you post or submit on the App may be publicly-viewable and accessible, both by users and non-users of the App. You should be particularly careful when posting information about your children.

8. License

MYKUMBAYA hereby grants you a non-exclusive, non-transferable, revocable license to use the App for your personal, non-commercial use and only on an approved Apple or Android device (“Device”) as permitted by the applicable App Store Terms and in accordance with these Terms (“User License”).  All other rights in the App are reserved by MYKUMBAYA.  In the event of your breach of these Terms, we will be entitled to terminate the User License immediately. 

 

You agree not to (i) modify, adapt or translate the App or attempt to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the App or Services; (ii) remove any copyright notice, trade mark, legend, logo or product identification from the App or Services; (iii) modify, translate or prepare derivative works of the App or Services, or any portion thereof; (iv) make any commercial use of the App or Services; or (v) rent, lease, distribute or lend the App or Services to third parties.

9. Intellectual Property

“KUMBAYA”, “MYKUMBAYA” and associated logos are the trademarks of MYKUMBAYA, Inc. (“MYKUMBAYA Trademarks”).  The App and its contents (“App Contents”) are owned by MYKUMBAYA, Inc.  Other trademarks, service marks, graphics and logos used in connection with the App are the trademarks of their respective owners (collectively “Third Party Trademarks”).  The MYKUMBAYA Trademarks, App and App Contents and Third Party Trademarks may not be copied, imitated or used, in whole or in part, without the prior written permission of MYKUMBAYA or the applicable trademark holder.  The App and the App Content are protected by copyright, trademark, patent and other intellectual property and proprietary rights, which are reserved to MYKUMBAYA and its licensors.  

10. User Content

The App may contain features that allow you to post or provide comments, photos, videos or other content (collectively, “User Content”).  You retain the right to your User Content.  However, you grant to MYKUMBAYA the worldwide, perpetual, irrevocable, fully transferable and royalty-free right and license to use the User Content for any purposes, including without limitation, to reproduce, distribute, publish, modify, publicly display, publicly perform, make derivative works, and for any and all commercial purposes, and in any and all media and formats, whether now known or hereafter created.  Please note that User Content may be made publicly available to other users or to the public at large and so you should not disclose any content that you do not wish to be made public. 

11. Prohibited Uses

You agree not to use the App or Services in any way, provide User Content or engage in any conduct that:

  • is unlawful, illegal or unauthorized;

  • is defamatory of any other person;

  • is obscene, sexually explicit or offensive;

  • advertises or promote any other product or business;

  • is likely to harass, upset, embarrass, alarm or annoy any other person;

  • is likely to disrupt our service in any way; or

  • promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

  • infringes any copyright, trademark, trade secret, or other proprietary right of any other person; or

  • advocates, promotes or assists any violence or any unlawful act.

 

We reserve the right, but do not have the obligation, at our sole discretion to edit, delete, remove or block any User Content that violates these Terms, including without limitation Section 10. In addition, we reserve the right at our sole discretion to terminate any user’s access to the App and our service if they

violate this Section 11 or any other provision of these Terms.

12. Third Party Links

The App may contain links to other websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services (collectively “External Applications”) for your convenience.  We are not and cannot be responsible for the External Applications’ content, operation or use.  Your use of External Applications is subject to the privacy practices and terms of use established for the External Applications, and we disclaim all liability for such use.  You are solely responsible for reviewing any terms of use, privacy policy or other terms governing your use of these External Applications, which you use at your own risk.

13. Indemnification

You agree to defend, indemnify, and hold harmless MYKUMBAYA, and its parent company, affiliates, officers, directors, employees, and agents (collectively, “Indemnitees”) against any lawsuit, liability, injuries, damages or expense (including attorney’s fees) arising from your use of the App, User Content or breach of these Terms and any Favor you request or any Favor you provide as a Service Provider.  The Indemnitees reserve the right to control the defense and settlement of any third-party claim for which you indemnify Indemnitees under these Terms and you will assist us in exercising such rights.

14. Disclaimer of Warranties

We provide the App and Services on an ‘as is’ and ‘as available’ basis without any promises or representations, express or implied.  In particular, MYKUMBAYA does not warrant or make any representation regarding the validity, accuracy, reliability or availability of the App or the Services its content.  To the fullest extent permitted by applicable law, MYKUMBAYA hereby excludes all warranties, whether express or implied, including any warranties of merchantability, fitness for a particular use, or that the App or Services are of satisfactory quality, non-infringing, is free of defects, or is able to operate on an uninterrupted basis, or that the use of the App or Services by you is in compliance with laws or that any information that you transmit in connection with the App or Services will be successfully, accurately or securely transmitted.

15. Limitation of Liability

 

NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MYKUMBAYA NOR ANY OF THE INDEMNITEES ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE APP OR THE SERVICES AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES.  YOUR SOLE REMEDY WITH RESPECT TO THE APP OR SERVICES IS TO STOP USING THE APP OR SERVICES, AS APPLICABLE.

 

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

In the event that applicable law does not allow the disclaimer of certain warranties and/or the limitation of liability for direct, indirect, consequential or other damages, in no event shall Indemnitees’ liability arising under or in connection with these Terms and your use of the App or Services exceed $100.

16.  Governing Law

 

These Terms shall be governed by the laws of the State of California, without regard to its choice of law principles.  In the event arbitration does not apply, we and you irrevocably submit to the jurisdiction of the state and federal courts of Santa Clara County, California with regard to any dispute arising out of or relating to these Terms.

17. Arbitration Provision

You and we agree that any dispute, claim or controversy between you and us arising in connection with or relating in any way to these Terms or the App or Services will be determined by mandatory binding individual (not class) arbitration.  You and MYKUMBAYA further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of this arbitration provision or to the arbitrability of any claim or counterclaim.  Arbitration is more informal than a lawsuit in court.  THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.  There may be more limited discovery than in court.  The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration.  This arbitration provision will survive termination of these Terms.

You and MYKUMBAYA both agree that nothing in this Arbitration Provision will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court, or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator.  In addition, this Arbitration Provision doesn’t stop you or us from bringing issues to the attention of federal, state or local agencies.  Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).

 

YOU AND MYKUMBAYA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.  Unless both you and MYKUMBAYA agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.  The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.  If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

 

Either you or we may start arbitration proceedings.  Any arbitration between you and MYKUMBAYA will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Provision.  You and MYKUMBAYA agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above).  The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879.

 

Any arbitration hearings will take place in the county of your residence address, provided that if the claim is for $25,000 or less, you or MYKUMBAYA may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.

 

If you choose to file an arbitration proceeding and you are required to pay a filing fee, MYKUMBAYA will reimburse you for that filing fee, unless your claim is for greater than US $10,000, in which case you will be responsible for the filing fee.  MYKUMBAYA will pay any other arbitration fees, including your share of arbitrator compensation, unless otherwise required by AAA rules or court order.  Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.  The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

 

If this Arbitration Provision is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in this section shall govern any claim in court arising out of or related to these Terms.

18. Termination

These Terms are effective unless and until terminated by either you or MYKUMBAYA. You may terminate these Terms at any time, provided that you discontinue any further use of the App and associated Services. We also may terminate or suspend these Terms, at any time, without notice and accordingly deny you access to the App and associated Services, for any reason, including without limitation, if at our sole discretion you fail to comply with any provision of these Terms or your use is harmful to the interests of another user of the App. Upon any termination of the Terms by either you or us, you must promptly uninstall the App and cease using the Services.

 

Sections 3, 5, 6, and 9 through 21 shall survive termination of these Terms.

19. Intellectual Property Claims

We respect the intellectual property rights of others and require that users of our App and Services do the same. In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent can be reached at contactus@mykumbaya.com. To be sure the matter is handled immediately, your written notice must:

•           Contain your physical or electronic signature;

•           Identify the copyrighted work or other intellectual property alleged to have been infringed;

•           Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;

•           Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);

•           Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;

•           Contain a statement that the information in the written notice is accurate; and

•           Contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.

Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.

 

Submitting a DMCA Counter-Notification

We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our Agent with a written counter-notification that includes the following information:

•           Your physical or electronic signature;

•           Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;

•           A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

•           Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

We reserve the right, in our sole discretion, to terminate the account or access of any user of the App and Services who is the subject of repeated DMCA or other infringement notifications.

20. General

These Terms, including the Privacy Policy and other policies incorporated herein, constitute the entire and only agreement between you and MYKUMBAYA with respect to the subject matter of these Terms, and supersede any and all prior or contemporaneous agreements, representations, warranties and understandings, written or oral, with respect to the subject matter of these Terms.  If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.  These Terms may not be changed, waived or modified except by MYKUMBAYA as provided herein or otherwise by written instrument signed by MYKUMBAYA.  Neither these Terms nor any right, obligation or remedy hereunder is assignable, transferable, delegable or sublicensable by you except with MYKUMBAYA’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void.  MYKUMBAYA may assign, transfer or delegate this or any right or obligation or remedy hereunder in its sole discretion.  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 these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

21. Contact Us

If you have any questions regarding our App or Services, you can email us at contactus@mykumbaya.com