TWIGTALE TERMS OF USE

LAST UPDATED: November 22, 2011

Welcome to Twigtale!  We hope you enjoy your visit to our website and find that using our services is productive, easy, and fun.

The following terms and conditions (the “Terms of Use”) shall constitute an agreement between you and Kitabu LLC, a California limited liability company (hereinafter referred to as “we”, “us”, or “Kitabu”), the owner and operator of www.twigtale.com (the “Twigtale Site”). These Terms of Use govern your use of the Twigtale Site and all services available or accessible through the Twigtale Site (collectively, the “Twigtale Services”). BY UTILIZING THE TWIGTALE SITE OR ANY TWIGTALE SERVICES OR BY REGISTERING WITH US, YOU SIGNIFY THAT YOU AGREE TO THESE TERMS OF USE, INCLUDING OUR PRIVACY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE and that you consent to resolve in the State of California any dispute that you may have with us or in connection with the Twigtale Site or Services. Please read the following Terms of Use carefully.    If you do not agree to these Terms of Use, please do not use the Twigtale Site or Services.  Note that any violation of these Terms of Use may result in termination of your ability to access and use the Twigtale Site or Services.

1. Changes to the Terms of Use.

We may change the Terms of Use at any time, as we reasonably deem appropriate. Upon any change in the Terms of Use, we will post the amended agreement on the Twigtale Site with notice of the changes and/or send you an email notifying you of the nature of the modifications and providing a link to the modified document on the Twigtale Site for your review. Your continued use of the Twigtale Services following receipt of such notification and/or posting shall constitute your affirmative acknowledgement of the modifications to the Terms of Use and your agreement to abide and be bound by the Terms of Use, as amended. If at any time you choose not to accept the Terms of Use, including following notification or posting of any modifications hereto, then you agree not to use the Twigtale Site or Twigtale Services. You can determine when these Terms of Use were last revised by referring to the “LAST UPDATED” legend at the top of these Terms of Use.  Be sure to return to this page periodically to ensure familiarity with the most current version of these Terms of Use.  Upon our request, you agree to sign a non-electronic version of these Terms of Use.

2. Changes to the Twigtale Services.

We reserve the right at any time to change all or any part of the Twigtale Services, including by eliminating or discontinuing any content or feature of the Twigtale Services, and to change any fees or charges associated with any of the Twigtale Services.  Any changes we make will be effective immediately upon notice, which we may provide by any means including, without limitation, posting on the Twigtale Site or by electronic mail.  Your continued use of the Twigtale Services after such notice will be deemed acceptance of such changes.  You agree that we shall not be liable to you or to any third party for any elimination or discontinuation of any content or feature of the Twigtale Services or any change in any fees or charges for use of the Twigtale Services.

3. Registration.

In order to utilize some of the Twigtale Services available on/through the Twigtale Site, you will have to register for an account with us (“Twigtale Account”).  As part of the account set-up and registration process, you will create a username and password and may be asked to provide certain other personal information. The username and password that you provide are your credentials (“Credentials”). When and if you set up your Twigtale Account and register to use the Twigtale Services, you agree to (a) provide accurate, current and complete information about yourself as prompted by our registration form (including your email address), and (b) maintain and update your information (including your email address) to keep it accurate, current and complete.  You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate your access to and use of the Twigtale Services.  We may refuse to grant you a username for any reason in our sole discretion, including in the event that we determine that such user name impersonates someone else, is illegal, vulgar, or otherwise offensive, or is protected by trademark or other proprietary rights law, or otherwise may cause confusion.  You will be responsible for the confidentiality and use of your Credentials and agree not to transfer or resell your Credentials to any third party.  YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR CREDENTIALS AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR TWIGTALE ACCOUNT. Our use and disclosure of any such information that you provide is governed by our Privacy Policy.

4. Your Use of the Twigtale Services.

While using the Twigtale Site and/or Twigtale Services, you agree to comply with all applicable laws, rules, and regulations.  In addition, we expect users of the Twigtale Site and/or Twigtale Services to respect the rights and dignity of others.  Your use of the Twigtale Site and/or Twigtale Services is conditioned in part on your compliance with the rules of conduct set forth in this section; any failure to comply may result in termination of your access to the Twigtale Site and/or Twigtale Services pursuant to Section 10 below.  You may not use the Twigtale Site or the Twigtale Services in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Twigtale Site or the Twigtale Services. You may not attempt to gain unauthorized access to any of the Twigtale Services, any Twigtale Accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting anything else contained herein, you agree that while using the Twigtale Services, you shall not (and you agree not to allow any third party to):

• copy, modify, adapt, sublicense, translate, sell, reverse engineer, decompile, or disassemble any portion of the Twigtale Site, its content or materials and/or the Twigtale Services;
• remove any copyright, trademark, or other proprietary rights notices contained in or displayed on any portion of the Twigtale Site or Twigtale Services;
• use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Twigtale Services;
• transmit any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs, or other items of a destructive nature;
• reformat or frame any portion of the web pages that are part of the Twigtale Site and/or the Twigtale Services;
• create user accounts by automated means or under false or fraudulent pretenses or impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity;
• access or use (or attempt to access or use) another user’s content without permission;
• collect and store any personal data about other users or any other content available on or through the Twigtale Site and/or Twigtale Services;
• defame, abuse, harass, stalk, threaten, or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; or
• express or imply that any statements you make are endorsed by us, without our prior written consent;

We may suspend and/or terminate your access to and use of the Twigtale Services and/or any features made available through the Twigtale Site immediately if you fail to comply with the above rules or otherwise fail to comply with these Terms of Use.

5. Your Submissions.

As part of the Twigtale Services, we may offer you the opportunity to upload, submit, post, publish, communicate, display, distribute, or otherwise transmit text, photographic images, audiovisual, and/or other content (“Submissions”). You retain ownership of your Submissions, and we will only exploit your Submissions in connection with the Twigtale Services, however, we are not responsible for and shall have no liability whatsoever in connection with any third party access or use of your Submissions. We reserve the right to monitor the Twigtale Services and remove any Submissions we deem inappropriate, in our sole discretion. However, we do not have any obligation to and are not responsible for any failure or delay in removing any Submissions. Likewise, by accepting or allowing you to provide Submissions, we are not obligated to post, publish, display, transmit, or otherwise make your Submissions available to the public, and we reserve the right not to do so. We are not responsible for, and will have no liability for, the removal, non-removal or third party use of any Submissions. By providing any Submission, you understand and agree that, subject to the Privacy Policy, uploading a Submission also constitutes permission for Kitabu, our contractors, agencies and any third parties approved by Kitabu to use the Submission (and/or any portions or derivatives thereof)  for any purpose, including promotional or marketing purposes, as we deem appropriate.

In addition:

• You are solely responsible for your Submissions;
• You may not upload, post, submit, distribute, transmit, reproduce or otherwise exploit any Submission that infringes, misappropriates or violates the intellectual property, publicity, privacy, or other proprietary rights of any third party;
• You may not provide any Submission that falsely expresses or implies that such Submission is sponsored or endorsed by us;
• You may not provide any Submission that harasses or advocates harassment of a third party, is unlawful, fraudulent, threatening, abusive, obscene, defamatory, libelous, promotes or encourages illegal activity or is otherwise objectionable;
• You may not provide Submissions as a means of transmitting unsolicited mass mailings or “spamming;”
• Your Submission may not be pornographic, sexually explicit, feature graphic nudity or otherwise be inappropriate for or harmful to minors in any way whatsoever;
• You understand and agree that we may delete any Submission that in our sole judgment violates these Terms of Use or is otherwise offensive, illegal violates the rights of, harms or threatens the safety of a third party;
• You agree that you will only provide Submissions that you believe to be true and you will not purposely provide false or misleading information;

• You may not provide any Submission which solicits or is designed to solicit personal information from anyone under eighteen or which otherwise poses or creates a privacy or security risk to any person;

• BY SUBMITTING ANY SUBMISSION, YOU AGREE TO AND HEREBY DO GRANT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO GRANT, KITABU, ITS SERVICE PROVIDERS AND OTHER CONTRACTORS AND THE USERS OF THE TWIGTALE SITE AND TWIGTALE SERVICES, A NON-EXCLUSIVE, IRREVOCABLE, PERPETUAL, ROYALTY-FREE, FULLY SUBLICENSABLE, FULLY PAID UP, WORLDWIDE LICENSE TO USE, COPY, PUBLICLY PERFORM, DIGITALLY PERFORM, PUBLICLY DISPLAY, DIGITALLY DISPLAY, TRANSMIT, DISTRIBUTE AND EXPLOIT SUCH SUBMISSION AND TO ADAPT, EDIT, TRANSLATE, PREPARE DERIVATIVE WORKS OF OR INCORPORATE INTO OTHER WORKS, SUCH SUBMISSION; and
• BY SUBMITTING ANY SUBMISSION WHICH CONTAINS THE LIKENESS OF ANY INDIVIDUAL (YOURS OR THAT OF A THIRD PARTY), YOU CONSENT TO AND YOU REPRESENT AND WARRANT THAT YOU HAVE OBTAINED WRITTEN CONSENT OR PERMISSIONS FROM EVERY OTHER IDENTIFIABLE INDIVIDUAL WHO APPEARS IN THE SUBMISSION TO OUR EXPLOITATION OF THE SUBMISSION IN THE MANNER CONTEMPLATED BY THESE TERMS OF USE. IF YOUR SUBMISSION CONTAINS THE LIKENESS OF ANY IDENTIFIABLE INDIVIDUAL UNDER THE AGE OF EIGHTEEN (18), YOU FURTHER WARRANT AND REPRESENT THAT YOU HAVE OBTAINED SUCH CONSENT OR PERMISSION FROM THE MINOR’S PARENT OR GUARDIAN (AND YOU AGREE TO PROVIDE TO KITABU WITH A COPIES THEREOF UPON OUR REQUEST).

We reserve the right to investigate and take appropriate legal action, in our sole discretion, against anyone who violates this provision, including without limitation, removing the offending Submission or communication (or replacing expletives or other language that may be deemed harmful or offensive contained therein) from the Twigtale Site and/or Twigtale Services and terminating the membership of or blocking access to the Twigtale Services by such violators  (including, without limitation, by suspending the processing and shipping of any order relating to any Submission).

6. Our Proprietary Content.

Except for your Submissions, all of the content available on or through the Twigtale Services and/or the Twigtale Site, including without limitation, textual templates, stock photos, graphics, images, logos, trade/service marks, and audiovisual content, is owned and/or controlled by Kitabu, our licensors or other users and is protected, as applicable, by copyright, trademark, trade dress, patent, and trade secret laws, other proprietary rights, and international treaties. You acknowledge that the Twigtale Services and any underlying technology or software used in connection with the Twigtale Services contain Twigtale’s proprietary information. Subject to and conditioned upon your compliance with these Terms of Use, and solely in connection with your use of the  Twigtale Services, we grant to you a non-exclusive, non-transferable, nonsublicensable limited license to access and use the aforementioned content for personal, non-commercial purposes only, provided that you keep intact all copyright and other proprietary notices, and we do not transfer any intellectual property or other rights to you by virtue of permitting your use of the Twigtale Services. You may not copy, distribute, republish, sell, or exploit any of such proprietary content, or otherwise exploit the Twigtale Site or Services, in whole or in part, for any commercial gain or purpose whatsoever. Except as is expressly provided herein, we do not grant you any express or implied rights, and all rights in the Twigtale Site and the Twigtale Services not expressly granted by us to you are retained by us and/or our licensors.

7. Your Purchases.

If you wish to purchase any books or other products or services through the Twigtale Site or Services, we will ask you to supply certain information applicable to your purchase, including, without limitation, payment information.  Any such information will be treated as described in our Privacy Policy. In connection with all books and/or other products or services that you select to purchase on/through the Twigtale Site or Services, payment in is due and payable to Kitabu immediately upon sale. By providing your payment information, you authorize Kitabu to debit your account for the total cost of your order and agree to be responsible for payment in full of all related charges at the prices in effect when such charges are incurred.  You will also be responsible for paying any applicable taxes relating to your purchases. Furthermore, you warrant and represent that all that all payment information you provide is true, correct, and complete and that you have the legal right to use any credit card(s) or other payment means used to initiate any transaction. All orders are subject to payment verification prior to shipping. We are not responsible for typographical errors in the billing or shipping information that you provide.  All orders are non-refundable. Purchases will be shipped to the address you provide and via the carrier/shipping method you designate at checkout. All sales are made pursuant to these Terms of Use, which, as concerns orders placed on/through the Twigtale Site or Twigtale Services, shall constitute a shipment contract, such that the risk of loss shall pass, along with title, to you upon our delivery of your purchases to the common carrier selected. We reserve the right to ship partial orders (at no additional cost to you).

Descriptions, images, references, features, content, specifications, products, price, and availability of products and services offered for sale on/through the Twigtale Site and/or Twigtale Services are subject to change without notice, and our current prices can be found on the Twigtale Site. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.  The inclusion of any products or services on/through the Twigtale Site or Services at a particular time does not imply or guarantee that these products or services will be available at any time.  It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Twigtale Site or Services.  By placing an order, you represent that the products ordered will be used only in a lawful manner.  We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service we offer for sale on/through the Twigtale Site or Twigtale Services; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service.

8. Public Linking.

As part of the Twigtale Services, we may enable you to share your Twigtale creations with friends via our “Public Linking” feature. Please be aware that any content (which may include your Submissions and/or portions or derivates thereof) that you choose to share using this feature will be publicly accessible. We are not responsible for and shall have no liability whatsoever as a result of or in connection with any third party access or use of Submissions or any portions or derivates thereof which you share via the Public Linking feature. We reserve the right to modify, suspend or terminate this feature at any time, as we deems appropriate in our sole discretion.

9. Forums.

As part of the Twigtale Services, we may permit you to communicate directly with other users through our user forums (collectively, the “Forums”).  Some Forum participants may not be Twigtale Members, may have no connection to us whatsoever and may use anonymous screen names.  Forum participants may occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading or deceptive and/or may otherwise behave in a manner objectionable to you.  Notwithstanding any other provisions contained herein, we neither endorse nor are responsible for any statement, opinion or other content accessible on or through the Forums. Under no circumstances will Kitabu, any of our affiliates, distributors, partners, licensors, and/or any of our or their directors, officers, employees, consultants, agents, or other representatives be liable for any loss or damage caused by your reliance on information obtained through the Forums.  We may, but have no obligation to, monitor the Forums.

10. Our Copyright Dispute Policy

We are committed to protecting copyrights and expect our users to do the same. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law.  If you believe in good faith that any material used or displayed on or through the Twigtale Site or Twigtale Services infringes your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked.  The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Twigtale Site or Services; (d) the name, address, telephone number, and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.  We will notify you in the event any of your Submissions are removed pursuant to our Copyright Dispute Policy. Upon such notification, if you believe that your Submission is not infringing and should not have been removed, you may send a counter-notice to our Designated Agent, which must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov/  for further details.

Our Designated Agent may be reached at:

Kitabu, LLC
P.O. Box 881016
Los Angeles, CA 90009

Email: support@twigtale.com

11. Termination.

We may, in our sole discretion, immediately terminate your access to and block your use of the Twigtale Site, Services or any portions thereof, at any time, without prior notice and for any reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms of Use.  Upon termination of these Terms of Use, your right to access and/or use the Twigtale Services will immediately cease and we may immediately deactivate or delete your Credentials, and all related information and files associated with your Twigtale Account (including all Submissions), and/or bar any further access to such information or files.  You agree that we shall not be liable to you or any third party for any termination of your access to the Twigtale Services or to any such information or files, and shall not be required to make such information or files available to you after any such termination.  Except for the license to access and use the Twigtale Site and Twigtale Services granted to you in Section 2, the rights and obligations of the parties as set forth herein will survive termination.

12.  Third-Party Websites, Software, and Services.

The Twigtale Site and/or Twigtale Services may feature advertisements and contain links to other websites, software and/or services (collectively, “Third Party Sites”).  Any links to a Third Party Site are provided solely for your convenience.  Kitabu does not endorse, sanction, or verify the accuracy or ownership of the information contained in advertisements on the Twigtale Site, the content of any Third Party Site or any products or services advertised on a Third Party Site.  If you decide to click on an advertisement or link to a Third Party Site or otherwise navigate to a Third Party Site, you do so at your own risk. Once you access a Third Party Site, you may no longer be protected by these Terms of Use and may be subject to other terms and conditions of such Third Party Site. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Site to which you navigate. Concerns regarding a Third Party Site should be directed to the Third Party Site itself.  Kitabu has no control over and bears no responsibility for any action associated with any Third Party Site.  Moreover, we do not imply an affiliation with any Third Party Site.

13. Promotions.

In addition to these Terms of Use, any contests, sweepstakes, surveys, games, or similar promotions (collectively, “Promotions”) made available through the Twigtale Site may be governed by specific rules that are separate from this Agreement.  By participating in any such Promotion, you will become subject to those rules, which may vary from the terms and conditions set forth herein.  We urge you to review any specific rules applicable to a particular Promotion, which will be linked from such Promotion, and to review our Privacy Policy which, in addition to these Terms of Use, governs any information you submit in connection with such activities. To the extent that the terms and conditions of such rules conflict with these Terms of Use, the terms and conditions of such rules shall control.

14. Eligibility.

Although the products available for purchase on/through the Twigtale Site are, indeed, intended to be enjoyed by children of all ages off-site, you must be thirteen (13) years of age or older to register with us or use the Twigtale Site and the online Twigtale Services. If you are under the age of 13, you can use the Twigtale Site or Twigtale Services only in conjunction with, and under the supervision of, your parent or guardian who has agreed to the Terms of Use.  If you do not qualify under these Terms of Use, do not use the Twigtale Site or Twigtale Services. Membership in the Twigtale Services is void where prohibited by applicable law, and the right to access the Twigtale Site is revoked in such jurisdictions.  By using the Twigtale Site and/or the Twigtale Services, you represent and warrant that you have the right, authority, and capacity to enter into the Terms of Use and to abide by all of the terms and conditions set forth herein.  Any use of the Twigtale Site or Twigtale Services outside of the United States is at your own risk and you are responsible for compliance with any local laws applicable to your use of the Twigtale Services or the Twigtale Site.

15. Disclaimer of Warranties.

WE PROVIDE THE TWIGTALE SITE AND THE TWIGTALE SERVICES “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE.” WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE TWIGTALE SITE OR TWIGTALE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE TWIGTALE SERVICES AND THE TWIGTALE SITE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES THAT THE TWIGTALE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TWIGTALE SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE TWIGTALE ERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF INFORMATION PROVIDED BY USERS OF THE TWIGTALE SITE OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE TWIGTALE SITE OR TWIGTALE SERVICES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, KITABU MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE BY OR THROUGH THE TWIGTALE SITE OR ANY SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. KITABU DOES NOT WARRANT THAT THE TWIGTALE SITE OR THE TWIGTALE SERVICES WILL OPERATE ERROR-FREE, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE TWIGTALE SERVICES, OUR SOFTWARE OR TWIGTALE SITE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS.

16. Liability Limitations.

YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR REGISTRATION. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE TWIGTALE SERVICES OR THE TWIGTALE SITE, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (1) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO UTILIZE THE TWIGTALE SERVICES; OR (2) $100. IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE TWIGTALE SITE AND/OR THE TWIGTALE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “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.”

17. California Users.

This notice is for our California users: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

18. Indemnification.

You agree to indemnify, defend and hold us, our affiliates, distributors, partners, licensors, advertisers, and sponsors, and our and their directors, officers, employees, consultants, agents, and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from (a) your breach of these Terms of Use, including any violation of the rules set forth in Section 2 above; (b) your Submissions; and/or (c) your activities in connection with the Twigtale Site or Twigtale Services (including, without limitation, any and all purchases).

19. Feedback.

Many of our users are interested in submitting ideas and suggestions in connection with the Twigtale Site or Services, either independently of, or in conjunction with, our internally developed concepts. We appreciate our users’ interest in improving the Twigtale Services; however, please note that any such ideas or suggestions that you submit will be owned by Kitabu, and you hereby irrevocably assign any intellectual property rights in such ideas and suggestions to Kitabu.  In the event that the foregoing assignment is held to be ineffective for any reason, your ideas and suggestions will be treated as Submissions, subject to the license granted herein.

20. International Use.

The Twigtale Services are controlled and operated by Kitabu from within the United States, and the Twigtale Site is not intended to be accessed outside  the United States.  Kitabu does not represent or warrant that the Twigtale Services or any portions thereof are appropriate or available for use in any other jurisdiction.  Those who choose to access the Twigtale Services from outside the United States do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules, and regulations.  We may limit the Twigtale Services’ availability, in whole or in part, to any person, geographic area, or jurisdiction we choose, at any time and in our sole discretion.

21. Our Relationship.

The relationship between you and Kitabu is one of independent contractors and nothing in these Terms of Use creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. Neither party hereto will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity, except as specifically provided herein.

22. Miscellaneous.

These Terms of Use are shall be deemed to have been entered into and shall be construed and enforced in accordance with the laws of the State of California , as applied to contracts made and performed entirely within California, without giving effect to any conflicts of law statutes.  You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County of Los Angeles, California,  and waive any jurisdictional, venue, or inconvenient forum objections to such courts.  If any provision of these Terms of Use, or the application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, such provision shall be enforced to the maximum extent possible, or, if incapable of such enforcement, shall be deemed to be deleted from these Terms of Use, and the remainder of these Terms of Use and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect.  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, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.  This is the entire agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter.  These Terms of Use are not assignable, transferable, or sublicenseable by you except with our prior written consent.    Any heading, caption, or section title contained in these Terms of Use is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

If you have any questions or comments regarding these Terms of Use, please contact: support@twigtale.com.

Copyright © 2011 Kitabu LLC. All rights reserved.