Terms of Service
These Terms of Service include:
Your agreement that the MyKukun Service is provided “as is” and without warranty (Section 14).
Your agreement that the Company has no liability regarding the MyKukun Service (Section 15).
Your consent to release the Company from liability based on claims between Users, Vendors or Users and Vendors (Section 3) and generally (Section 15).
Your agreement to indemnify the Company from claims due to your use or inability to use the MyKukun Service or content submitted from your account to the MyKukun Service (Section 11).
Your consent that either party has the right to compel arbitration and that no claims can be adjudicated on a class basis (Section 18).
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
1. MyKukun Service Provides a Platform for Remodelers.
The MyKukun Service provides inspiration, information and tools for individuals who are home remodelers (“Users” or individually a “User”). The MyKukun Service includes a site where remodeling alternatives, products and services can be viewed, a renovation project budget can be estimated and a communication platform that enables connection and commerce between Users and vendors or service professionals (collectively, “Vendors”).
– Your license to use the MyKukun Services. The Company provides content through the Site and through the MyKukun Services that is copyrighted and/or trademarked work of the Company or the Company’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content. Subject to the terms and conditions of these Terms, and your compliance with these Terms, the Company hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your personal use. Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner. You need not register with the Company to simply visit and view the Site and use certain functionality provided by the MyKukun Service. However, in order to name or save the projects you design using the Site and to use certain Materials offered on and through the Site, you must register with the Company for an account and password.
– Your license automatically terminates if you breach these Terms. If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
– Password Restricted Areas of this Site. If you desire to register for an account with the Company, you must provide your name and email address on the account registration page and create a username and password. You will also have the ability to provide your phone number, which is not required to register for an account but may be helpful to the Company in providing you with more a more customized experience when using the Site. Once you have submitted your account registration information, the Company administrator shall have the right to approve or reject the requested registration, in the Company administrator’s sole discretion. If the Company administrator approves your account, you will be able to log-on to the Site using the password you chose (your “Password”). You are responsible for maintaining the confidentiality of your Password, and you are responsible for all activities that occur using your Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardize the security of your Password. You agree to notify the Company if your Password is lost, stolen, if you are aware of any unauthorized use of your Password or if you know of any other breach of security in relation to the Site. All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes.
2. MyKukun Service Provides a Venue for Bid Solicitation and the Purchasing of Products and Services between Users and Vendors.
Users may be seeking to obtain products and/or services (“Vendor Products and Services”) pursuant to bid requests posted by a User for response from the Vendor community (each a “Bid” and collectively “Bids”). In any purchase of Vendor Products and Services, Users are the customers of Vendors, not of Company. The availability of any Vendor Products and Services does not imply Company’s endorsement of those Vendor Products and Services. The MyKukun Service is a platform for enabling connections between Users and Vendors relating to Bids. Company is not responsible for the actions, performance, integrity or responsibility of Users, nor does it have control over the quality, accuracy, timing, legality, and failure to provide information, or any other aspect whatsoever relating to any Bid. Similarly, Company is not responsible for the actions, performance, integrity or responsibility of Vendors, nor does it have control over the quality, accuracy, timing, legality, and failure to provide information or any other aspect whatsoever relating to a Vendor’s response to any Bid. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Bids requested by Users and services offered by Vendors identified through the MyKukun Service whether in public, private, or offline interactions.
When interacting with other Users or Vendors, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE MYKUKUN SERVICE AND/OR VENDOR IN THE MYKUKUN SERVICE AND YOU HEREBY RELEASE THE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE MYKUKUN SERVICE.
3. Your Submissions or Postings on the MyKukun Service are subject to the following rules.
– You agree to license your Content. The MyKukun Service provides media and content, including photos, audio/visual works, information, text, reviews, postings and other content provided by Company, Users and Vendors (collectively “Content”). Content may be viewed by the general public and will not be treated as private, proprietary or confidential. You hereby grant Company and our affiliates, licensees and sublicensees, without compensation to you or others, a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute such Content, or any portion thereof, throughout the world in any format, media or distribution method (whether now known or hereafter created) for the duration of any copyright or other rights in such Content. Such permission shall be perpetual and may not be revoked for any reason, to the maximum extent permitted by law. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in any Content posted or provided by you. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Content posted by you to or through this Site.
– You or your licensors maintain ownership of your Content. Company acknowledges and agrees that you, or your licensors as applicable, retain ownership of any and all copyrights in the Content, subject to the non-exclusive rights granted to Company in the paragraph above, and that no ownership of such copyrights is transferred to Company under these terms. Further, with respect to Content in the form of photos, and subject to Company’s product and user experience considerations: (a) Company will use commercially reasonable efforts to maintain the attribution of such photos as submitted by you, and (b) Company will not license or sublicense to third parties individual photo Content or collections of photo Content submitted by you, except in each case for Company Business Purposes. “Company Business Purposes” means any use in connection with a Company-branded or co-branded website, application, publication or service, or any use which advertises, markets or promotes the Site, the MyKukun Service, the Information, Company, or its affiliates.
– You warrant you have the right to your Content. By posting or providing any Content on the Site, you represent and warrant to Company that you own or have the right to use and permit us to use and license such Content in the manner stated in this Agreement. By way of example and not limitation, if you post or otherwise provide a photograph which includes an image of any person, you need to first obtain permission or a release from such person (or such person’s parent/legal guardian if applicable) appearing in the photograph to use their image and permit us to use and license it as stated in this Agreement and you must be the owner or licensee of the copyright in the photograph, with the right to permit us to use it as stated in this Agreement. By way of further example and not limitation, if you post or otherwise provide a photograph of a pictorial, graphic, sculptural or architectural work that is protected by copyright, you need to first obtain permission or a release from the owner of the copyright in such work to reproduce and adapt their work and permit us to use it as stated in this Agreement and you must be the owner or licensee of the copyright in the photograph, with the right to permit us to use it as stated in this Agreement.
– You agree to adhere to our rules of conduct in connection with your Content. Company may enable you to post ratings or reviews of Vendors and Vendor Products and Services (your “Reviews”). Reviews are considered Content. You may not post any Reviews if you are (a) an employee, contractor, officer or director of the Vendor you are reviewing; (b) an employee, contractor, officer or director of a competitor of the Vendor you are reviewing; or (c) related to the Vendor in any way, including by blood, adoption or marriage. By posting a Review, you acknowledge and agree that such Content: is based upon your first-hand experience, is accurate, truthful and complete; and is not defamatory, trade libelous, or otherwise in violation of our Acceptable Use Policy set forth in Section 10 below, all as determined by us in our sole and absolute discretion.
– You agree that we may use Content as we deem appropriate. You further agree that we may use the posted or provided Content in any manner that we deem appropriate or necessary. We reserve the right to edit or abridge any Content for any reason, and to edit, refuse to post or remove any Content submitted by you or others. We do not guarantee that we will post all Content submitted or that such content will not be offensive, defamatory or objectionable. Although we reserve the right to remove without notice any Content for any reason, we have no obligation to delete Content that you personally may find objectionable or offensive. We do not control in real time the Content posted via the MyKukun Service and as such do not guarantee the accuracy, integrity or quality of such Content. In addition to other disclaimers found in this Agreement, we do not endorse or make any warranties or representations with respect to the accuracy, completeness or timeliness of any Content posted on the Site.
4. MyKukun Service contains Third-Party Links.
YOU AGREE THAT THE COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY.
The Company may make changes to Site (including, for avoidance of doubt, the MyKukun Service and Mobile Application) at any time. The Company can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site and by emailing you at the address associated with your account (if any). By using any part of the Site after the Company has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.
6. Mobile Applications.
The Company makes available Mobile Applications to access the MyKukun Service via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. The Company does not warrant that the Mobile Application will be compatible with any particular mobile device. The Company hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application on mobile devices owned or leased solely by you, for your personal use. You are required to agree to these Terms each time you install the Mobile Application on a mobile device. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that the Company may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and the Company and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
– Additional terms for iOS App. The following additional terms and conditions apply with respect to any Mobile Application that the Company provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and the Company only, and not with Apple, Inc. (“Apple”).
- Your use of the Company’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- The Company, and not Apple, are solely responsible for our iOS App and the Services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that the Company, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that the Company, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the Company’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
– Additional terms for Android App. The following additional terms and conditions apply with respect to any Mobile Application that the Company provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and the Company only, and not with Google, Inc. (“Google”).
- Your use of the Company’s Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. The Company, and not Google, are solely responsible for the Company’s Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to the Company’s Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Company’s Android App.
7. Geo-Location Terms.
If applicable, you agree to pay all fees or charges to your account based on the Company’s fees, charges, and billing terms. If you have a balance due on any account, you agree that the Company or our third party payment processor may, and you hereby authorize the Company and its third party processors to, charge such unpaid fees, any applicable tax and any other charges to your credit card, debit card, or other payment method accepted by the Company and/or its third party processors, or otherwise bill you for such unpaid fees or other applicable charges. If you do not pay any amount due on time, or if the Company and/or its third party processors cannot charge your credit card, debit card, or other payment method for any reason, we, in addition to any other rights or remedies it may have, reserve the right to either immediately suspend or terminate your access to all or a portion of the Site. The Company is not liable for any loss caused by any unauthorized use of your credit card, debit card or any other method of payment by a third party in connection with your use of the Site. The Company reserves the right to change its billing methods at any time; any changes to billing methods will be posted on or through the Site. Your continued use of the Site after the changes have taken effect means that you accept such changes.
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made on the Site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. Requests for refunds or returns of products should be directed to the merchant from whom you purchase the products and not to the Company.
9. Electronic Communications.
By using the Site, you consent to receiving electronic communications from the Company. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site. These electronic communications are part of your relationship with the Company. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
10. Acceptable Use Policy.
When using this Site and/or the MyKukun Service, you agree to abide by common standards of etiquette and act in accordance with the law. For example, you agree not to not to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Site.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on this Site.
- Post anything contrary to our public image, goodwill or reputation.
- This list of prohibitions provides examples and is not complete or exclusive. The Company reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to this Site or to any other user of this Site. The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
11. Indemnification for Unauthorized use of any Materials or Third-Party content.
You agree to indemnify and hold the Company and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) the Company or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
12. Proprietary Rights.
The Company is a trademark of the Company in the United States. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of the Company. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
The Mobile Application software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if You are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Intellectual Property Infringement.
The Company respects the intellectual property rights of others, and we ask you to do the same. The Company may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide the Company’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit the Company to locate the material.
- Information reasonably sufficient to permit the Company to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Company’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
1060 Continental Drive
Menlo Park, CA 94025
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
13. Submitting a Digital Millennium Copyright Act (“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 valid DMCA takedown notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to the Company designated agent that includes all of 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 the Company 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.
– Termination of Repeat Infringers. The Company reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
14. Disclaimer of Warranties.
Your use of this Site is at your own risk. The Materials have not been verified or authenticated in whole or in part by the Company, and they may include inaccuracies or typographical or other errors. The Company does not warrant the accuracy of timeliness of the Materials contained on the Site. The Company has no liability for any errors or omissions in the Materials, whether provided by the Company, our licensors or suppliers or other users.
THE COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE MYKUKUN SERVICE, MOBILE APPLICATION OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, THE MYKUKUN SERVICE, MOBILE APPLICATION AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED THEREON OR THEREIN IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
THE COMPANY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT OBTAINED THROUGH YOUR USE OF THE SITE, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH SITE. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH ANY PARTIES WITH WHOM YOU COMMUNICATE, INTERACT OR CONDUCT BUSINESS WITH AS A RESULT OF YOUR USE OF THE SITE.
15. Limitation of Liability.
THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR TRANSACTIONS WITH OTHER ANY PARTIES WITH WHOM YOU COMMUNICATE, INTERACT OR CONDUCT BUSINESS WITH AS A RESULT OF YOUR USE OF THE SITE) HOWEVER ARISING, EVEN IF THE COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
16. Local Laws; Export Control.
The Company controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you may not make purchases from the Site and you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to the Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, the MyKukun Service or any services offered through the Site, the Mobile Application, or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and the Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that the Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
18. Dispute Resolution and Arbitration; Class Action Waiver.
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at email@example.com. This Dispute Resolution and Arbitration; Class Action Waiver provision (the “Provision”) facilitates the prompt and efficient resolution of any disputes that may arise between you and the Company. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and the Company shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “the Company” means the Company and its parents, subsidiaries, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and the Company regarding any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as the Company’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
– Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, you must first give the Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Kukun, Inc., 1060 Continental Drive, Menlo Park, CA 94025. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If the Company does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
– Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or the Company may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Kukun, Inc., 1060 Continental Drive, Menlo Park, CA 94025. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with the Company through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with the Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
– Arbitration Procedures. If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or the Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
– Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
– Location of Arbitration. You or the Company may initiate arbitration in either San Mateo County, California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, the Company may transfer the arbitration to San Mateo County, California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
– Payment of Arbitration Fees and Costs. The Company will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with the Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
– Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and the Company specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
– Jury Waiver. You understand and agree that by entering into this Agreement you and the Company are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and the Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
19. Miscellaneous Terms.
– Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
– Continuation. This Provision shall survive the termination of your service with the Company or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if the Company makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require the Company to adhere to the language in this Provision if a dispute between us arises.
– General. The Company prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by the Company, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in San Mateo County in the State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. The Company’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and the Company and supersede all prior or contemporaneous negotiations, discussions or agreements between you and the Company about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
– California Consumer Notice. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site and the MyKukun Service are provided by Kukun, Inc. If you have a question or complaint regarding the Site, please contact Customer Service at firstname.lastname@example.org. You may also contact us by writing Kukun, Inc., 1060 Continental Drive, Menlo Park, CA 94025. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
– Return Policy. The Company does not offer returns on its subscriptions; for more information, email email@example.com.
20. Contact Us. If you have any questions about these Terms or otherwise need to contact the Company for any reason, you can reach us at firstname.lastname@example.org.
Last updated 3 March 2016.