Last Updated: May 6, 2020
THESE TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (THE “USER”) AND KDC, LLC (“KDC”, “WE”, “OUR”, “US”, OR OUR AFFILIATES, AS APPLICABLE) STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF shop.kush.com (THE “SERVICE”). PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING AND/OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT AND ITS CONDITIONS, DO NOT DOWNLOAD, INSTALL AND/OR USE THE SERVICE.
The Service provides web-based platforms that allow Users to purchase products in the CBD space (“Products”).
The production, distribution and possession of hemp or products derived from hemp, or conspiring or aiding and abetting someone to do the same, may be illegal under federal law and the laws of various states.
KDC operates and does business only in those states in which the production of hemp is legal under state law. All Users of the Service are responsible for providing complete and truthful information to KDC and for complying with all applicable laws, regulations and policies at all times. KDC is not responsible for any non-compliance or any resulting civil or criminal penalties.
Subject to your complete and ongoing compliance with this Agreement, KDC grants you, solely for your personal, non-commercial use, during the term of this Agreement, a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Service.
Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
The Service, all content (other than User Content) made available on or through the Service, including without limitation images, graphics, photos, video, text and sound (“Content”), and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service, is owned by KDC its licensors, vendors, agents and/or its content providers. All elements of the Service are protected by intellectual property laws. The Service may only be used for the intended purpose for which it is made available. The Service, Content and all related rights (including but not limited to copyrights, trademarks and other proprietary rights) are the exclusive property of KDC, its Affiliates, or their licensors unless otherwise expressly agreed. You will not remove any trademark, service mark, copyright or other proprietary notices from Content or materials found on the Service. Other product and company names that are mentioned on the Service may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you under this Agreement.
Use of Service
YOU NEED TO BE AT LEAST 21 YEARS OLD AND A RESIDENT OF THE UNITED STATES TO REGISTER FOR AND USE THE SERVICE. BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 21 YEARS OLD, THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT AND TO ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THAT YOU WILL COMPLY WITH ALL APPLICABLE LAWS, REGULATIONS, RULES AND POLICIES AT ALL TIMES. FURTHER, YOU MUST BE OF LEGAL AGE REQUIRED BY THE STATE YOU ARE IN TO PURCHASE PRODUCTS OFFERED THROUGH THE SERVICE.
You further represent and warrant that you have not previously been suspended or removed from using the Service and that you may enter into this Agreement without violating any other agreement to which you are a party.
By establishing a User account on the Service, you thereby represent that you have legal authority to enter into this Agreement. If you do not have the legal authority to enter into this Agreement, do not create a User account. If it is determined or discovered that you do not have such authority, or have misrepresented your authority to KDC, your User account will be terminated immediately. KDC, in its sole discretion, specifically reserves the right to terminate any User accounts that are utilized by third parties unrelated to the transaction conducted on KDC’s Service.
Each User may create a personalized account to access the Service and to receive messages and notifications from KDC. User accounts include a unique username, your email address, you phone number, and a password. If you are a business, we may also need your business license number and other verifying information.
You agree to provide true, accurate, current and complete data for your accounts and to maintain and update account data to keep it true, accurate, current, and complete. You further agree to notify us immediately of any unauthorized use of your password and/or account. You will be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your username, password and/or account. We have the right to provide account data, content or use records, and other information in response to a subpoena, warrant, order or other legal request.
Maintaining a safe and secure User community is very important to KDC. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property.
Any interactions and communications with other Users must comply with respective state laws, regulations and policies. Neither KDC nor its Affiliates are responsible for any civil or criminal penalties or consequences for non-compliance. Please review your state and local rules and regulations on hemp activity before using the Service.
NEITHER KDC NOR ITS AFFILIATES ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICE AND YOU HEREBY RELEASE KDC AND ITS AFFILIATES FROM ANY LIABILITY RELATED THERETO. KDC AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICE.
Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
By providing User Content to or via the Service, you grant KDC a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
By providing User Content to or via the Service to other Users of the Service, you grant those Users a non-exclusive license to access and use that User Content as permitted by this Agreement and the functionality of the Service.
We disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize KDC and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by KDC, the Service, and this Agreement;
- your User Content, and the use of your User Content as contemplated by this Agreement, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause KDC to violate any law or regulation; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. KDC may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this Agreement or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against KDC with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, KDC does not permit copyright-infringing activities on the Service.
BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under this Agreement; or
- attempt to do any of the acts described in this section or assist or permit any person in engaging in any of the acts described in this section.
When ordering Products, you acknowledge and agree that:
Occasionally, our Products may vary slightly in color and style from the photographs displayed on the Service.
Once we have received and processed your Product order, we will charge your authorized payment method. Upon our receipt of the payment, title to the Product will pass to you.
You will be charged the applicable state taxes (including the sales tax), if any, assessed by your state for any Product transaction.
By asking us to ship a delivery to you, you are asking us to engage a common carrier to deliver your order to you. We make no representations about the legality of shipping Products. Our site lists those states where common carriers will deliver CBD goods. You are responsible for compliance with all laws regarding such shipments.
By arranging for transportation of the Products, KDC is providing a service to, and acting on behalf of you. By utilizing this service from KDC you are representing that you are acting in compliance with your local and state laws regarding the purchase, transportation and delivery of hemp related goods. You further represent that you have obtained any required permission, paid any required fees, are working through properly licensed intermediaries where required, are legally entitled to take possession of the Products. If, between the date of order and date of arrival, the laws of your state change so as to make it illegal for you to import your shipment, you may return the order for a full refund.
If you provide us with a shipping address that is invalid or where you cannot securely accept the Products upon delivery, you are solely responsible for any loss, theft, or damage to the Products resulting therefrom.
We reserve the right to reject, cancel, or prohibit any sales of Products, including as a result of concerns regarding delivery location or Product availability.
Following delivery to the designated address, you are solely responsible for the condition of Products.
Returns are only accepted within 15 days of the date of purchase. To be eligible for a return, your item must be unused and in the same condition that you received it. It must also be in the original packaging. To return your product, please contact us at firstname.lastname@example.org. To process your return, we require a receipt or proof of purchase. You will be responsible for shipping costs. If the product is received by us in unused and undamaged condition and in its original packaging, we will refund your purchase. Several types of products are exempt from being returned. These products are identified on the website and during the ordering process as being non-returnable.
Before you pay any Product fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
We reserve the right to determine pricing for the Products. KDC will keep pricing information published on the Service up to date. We encourage you to check our Service periodically for current pricing information.
You authorize KDC or its third party payment processor to charge all sums for the orders that you make, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, KDC or a third party payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Each Party (“Disclosing Party”) has certain Confidential Information that it may share with the other Party (“Recipient”) for the sole purpose of performing this Agreement. “Confidential Information” means proprietary, nonpublic or trade secret information disclosed in any form, that Disclosing Party designates as being confidential or that should reasonably have been understood as confidential. Confidential Information does not include information that (a) is already known to Recipient when disclosed by Disclosing Party and was not obtained unlawfully, (b) becomes publicly known without fault of Recipient, (c) is independently developed by Recipient or (d) Disclosing Party approves in writing to be released publicly. Each Party will use reasonable care to prevent unauthorized disclosure of Confidential Information. Recipient may disclose to its lawyers, accountants, employees or agents who have agreed in writing to confidentiality duties as strict as this Agreement. Recipient may disclose Confidential Information as required by court order or legal request, if Recipient gives prior notice to Disclosing Party, cooperates with Disclosing Party to obtain a protective order, and only discloses what is necessary to comply. Upon request, Recipient will return or destroy all copies of Disclosing Party’s Confidential Information. Confidentiality obligations will survive the termination of this Agreement.
As part of the Service, KDC may provide you with convenient links to third party website(s) (“Third Party Sites”) as well as content or items belonging to or originating from third parties (the “Third Party Service, Software or Content”). These links are provided as a courtesy to Users. KDC has no control over Third Party Sites and Third Party Service, Software or Content or the promotions, materials, information, goods or Service available on these Third Party Sites or Third Party Service, Software or Content. Such Third Party Sites and Third Party Service, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by KDC, and KDC is not responsible for any Third Party Sites accessed through the Service or any Third Party Service, Software or Content posted on, available through or installed from the Service, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Service, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Service, Software or Content does not imply approval or endorsement thereof by KDC. If you decide to leave the Service and access the Third Party Sites or to use or install any Third Party Service, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. Please review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Sites or Third Party Service, Software or Content before commencing access or use thereof.
Any statements on this site or any materials or Products we distribute or sell have not been evaluated by the Food and Drug Administration (“FDA”). Neither the Products nor the ingredients in any of the Products available on this site have been approved or endorsed by the FDA or any regulatory agency. The Products on this site are not intended to diagnose, treat, cure or prevent any disease. The information on this site or other materials we may provide to you are designed for educational purposes only and are not intended to be a substitute for informed medical advice or care. This information should not be used to diagnose or treat any health problems or illnesses without consulting a doctor. If you are pregnant, nursing, taking medication, or have a medical condition, we suggest consulting with a physician before using any of our Products.
Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by KDC, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. KDC does not guarantee the accuracy, completeness, or usefulness of any information on the Service and neither does KDC adopt nor endorse, nor is KDC responsible for, the accuracy or reliability of any opinion, advice, or statement made posted or transmitted via the Service. KDC takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. Under no circumstances will KDC be responsible for any loss, damage or injury resulting from anyone’s reliance on information or other content posted on the Service, or transmitted to Users.
Though KDC strives to enforce this Agreement, you may be exposed to User Content that is inaccurate or objectionable. KDC reserves the right, but has no obligation, to monitor the materials posted in the public areas of the Service or to limit or deny a User’s access to the Service or take other appropriate action if a User violates this Agreement of Service or engages in any activity that violates the rights of any person or entity or which we deem unlawful, offensive, abusive, harmful or malicious. KDC shall have the right to remove, with or without notice, any such material that in its sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, or that might violate the rights, harm, or threaten the safety of Users or others. Unauthorized use may result in criminal and/or civil prosecution under Federal, State and local law. If you become aware of misuse of our Service, please contact us email@example.com.
THE SERVICE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING,KDCEXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
NEITHER KDC NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OR THIRD PARTY.
IN ADDITION, EACH USER IS RESPONSIBLE FOR THEIR SELECTION OF A GOOD OR SERVICE OFFERED BY ANOTHER USER ON THE SERVICE, AND FOR SELECTING THEIR SELLER. KDC DOES NOT PROVIDE ANY REPRESENTATION OR WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED BY A USER AND DOES NOT RECOMMEND ANY PARTICULAR BUYER OR SELLER. KDC DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY BUYER’S OR SELLER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
Limitations on Liability; Release
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KDC, ITS AFFILIATES, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH KDC OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOTKDCHAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.
IN THE EVENT OF ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATED TO THE SERVICE, CONTENT OR GOODS OR SERVICES OFFERED, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SERVICE. THE AGGREGATE LIABILITY OF KDC, ITS AFFILIATES, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS OR PARTNERS, FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, REGARDLESS OF LEGAL THEORY, IS LIMITED TO THE LESSER OF (A) DIRECT DAMAGES PROVEN BY YOU OR (B) THE AMOUNT OF FEES OR CHARGES PAID BY YOU TOKDCDURING THE 3-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE.
If you have a dispute with one or more Users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
If you are a California resident, you waive California Civil Code §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.”
Subject to the terms and conditions set forth in section, each party (as “Indemnifying Party”) shall indemnify, hold harmless, and defend the other Party and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees and the costs of enforcing any right to indemnification under this Agreement, and the costs of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), relating to, arising out of or resulting from: (i) breach or non-fulfillment of any representation, warranty or covenant under of this Agreement by Indemnifying Party; (ii) any negligent or more culpable act or omission of Indemnifying Party (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; (iii) any infringement, misuse, or misappropriation of any third-party intellectual property rights; (iv) any violation or alleged violation of the intellectual property rights of Indemnified Party as a result of Indemnifying Party’s performance under this Agreement (subject to the exceptions and limitations listed below); (iv) any breach of any confidentiality obligations; (v) any violation of any law; (vi) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party; (vii) any misuse of, or unauthorized access to, the Service; or (viii) your violation of any law, rule or regulation of the United States or any other jurisdiction, including without limitation concerning the licensing, cultivation, manufacture, possession, distribution, testing, marketing, purchase, sale and/or transfer of hemp, and/or products derived therefrom. KDC may assume exclusive control of any defense of any matter subject to indemnification by you, and you agree to cooperate with KDC in such event.
Exceptions and Limitations. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify, hold harmless or defend Indemnified Party against any claim if such claim or corresponding Losses arise out of or result from Indemnified Party’s: (i) negligence or more culpable act or omission (including recklessness or willful misconduct); (ii) bad faith failure to comply with any of its material obligations set forth in this Agreement; or (iii) violation or alleged violation of the intellectual property rights of a third party, where such infringement was absent or non-existent prior to Indemnified Party’s use or exploitation of the intellectual property.
As used in this Agreement, “Affiliate” means any other individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity (each, a “Person”), that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term “control” means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
KDC may terminate or suspend your right to access or use the Service in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with email notice of such User Breach and such termination or suspension, and such termination or suspension will be effective immediately upon delivery of notice. We may also terminate or suspend your account without notice if we believe it is required to prevent damage, harm or injury to us or anyone else.
If KDC terminates or suspends your right to access or use the Service, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, KDC reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to use the Service is terminated or suspended, this Agreement will remain enforceable against you.
KDC reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Service at its sole discretion. KDC is not liable to you for any modification or discontinuance of all or any portion of the Service. Notwithstanding anything to contrary in this Section, KDC has the right to restrict anyone from completing registration as a User if KDC believes such person may threaten the safety and integrity of the Service, or if, in KDC’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Service. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Governing Law; Dispute Resolution
To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and KDC agree to first attempt to negotiate any Dispute informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address is the email address submitted with the creation of a User account. KDC’s address for such notices is:
3708 Airport Way S
Seattle, WA 98134
If you and KDC are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Service will be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and KDC may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. In any dispute, neither party will assert that the Agreement is invalid due to illegality.
Waiver of Right to be a Plaintiff or Class Member in a Purported Class Action or Representative Proceeding. You and KDC agree that any arbitration will be limited to the Dispute between KDC and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU ANDKDCARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and KDC otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
Arbitration will take place exclusively in Seattle, Washington. You and KDC agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the Washington state and Federal courts located in King County have exclusive jurisdiction and you and KDC agree to submit to the personal jurisdiction of such courts.
You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying KDC in writing within 30 days of the date you first registered for the Service or 30 days from the date this Agreement was last updated. To opt out, you must send a written notification to KDC at 3708 Airport Way S, Seattle, WA 98134, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the State of Washington, without regard to choice of law principles.
Copyright Complaints and Copyright Agent
a. Termination of Repeat Infringer Accounts. KDC respects the intellectual property rights of others and requests that the Users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, KDC has adopted and implemented a policy that provides for the termination in appropriate circumstances of Users of the Application who are repeat infringers. KDC may terminate access for participants or Users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
b. DMCA Take-Down Notices. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to KDC’s designated copyright agent at 3708 Airport Way S, Seattle, WA 98134:
i. The date of your notification;
ii. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
iii. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iv. A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
v. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and/or email address;
vi. 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 owner, its agent, or the law; and
vii. 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.
c. Counter-Notices. If you believe that your User Content that has been removed from the Service is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
i. Your physical or electronic signature;
ii. A description of the content that has been removed and the location at which the content appeared before it was removed;
iii. A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
iv. Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Washington state and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by KDC copyright agent, KDC may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or User, the removed content may (in KDC’s discretion) be reinstated on the Service in 10 to 14 business days or more after receipt of the counter-notice.
Consent to Receive Communications in Electronic Form
You (a) consent to receive communications from KDC in an electronic form via the email address you have submitted; and (b) agree that all Terms of Service, agreements, notices, disclosures, and other communications that KDC provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
We may also use your email address, to send you other messages, including information about KDC and special offers. You may opt out of such email by changing your account settings or sending an email to firstname.lastname@example.org or mail to the following postal address:
3708 Airport Way S
Seattle, WA 98134
Opting out may prevent you from receiving messages regarding KDC or special offers.
Modification of Terms of Service
We can amend this Agreement of Service at any time and will update this Agreement of Service in the event of any such amendments. It is your sole responsibility to check the Service from time to time to view any such changes in the Agreement. If you continue to use the Service, you signify your agreement to our revisions to this Agreement of Service. However, we will notify you of material chances to the terms by posting a notice on our homepage and/or sending an email to the email address you provided to us. For this additional reason, you should keep your contact and profile information current. Any changes to this Agreement of Service (other than as set forth in this paragraph) or waiver of KDC’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of KDC. No purported waiver or modification of this Agreement by KDC via telephonic or email communications shall be valid.
If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of KDC to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
You agree that any cause of action related to or arising out of your relationship with KDC must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
KDC and its Affiliates will not be responsible for damages or for delays or failures in performance due to due to acts of God, acts of terrorism, civil disorders, rebellion, riots, insurrection, fires, explosions, accidents, floods, vandalism, sabotage, unavailability of equipment, software or parts from vendors, strikes or other labor activity, disputes or conditions, shortages, natural disaster, embargoes, war or unrest, military action, governmental restrictions or action, terrorism or threat of terrorism, computer viruses or worms, computer sabotage, malicious online attacks or other cause beyond their control.
This Agreement including any separate terms and conditions agreed in writing between You and KDC, are the entire agreement between You and KDC, and supersede any prior understandings or agreements whether written or verbal. This Agreement of Service and Your use of the Service are governed by the federal laws of the United States of America and the laws of the State of Washington, without regard to conflict of law provisions. You agree that the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
If you have any questions, please contact us by email at email@example.com.