By clicking “I Accept” or by accessing or using the https://kidsandart.org website (the “Site”) through which we describe our impact and make available our unique art kits, breathing cards, guided meditations, wellness cards, and other products for sale or license (the “Products”), or by participating in online and in-person workshops (“Workshops”), attending events we offer to the general public and our generous donors (“Events”), volunteering as an artist or as an individual (“Volunteer Program”) or donating to our cause (collectively, the “Services”), you agree to be bound by the terms and conditions contained in this Agreement and all other terms incorporated herein by reference. Some of the Services may be subject to additional terms and conditions we specify from time to time. Your use of such Services is subject to those additional terms and conditions, and to the extent there is a conflict between the terms of this Agreement and such additional terms and conditions, the additional terms and conditions will govern. This Agreement applies to all users of the Services.
MEDICAL DISCLAIMER: While we strive to provide a therapeutic outlet for children through art, the material and content contained in the Services are not intended to serve as a substitute for consultation, diagnosis or medical treatment by a licensed medical professional. Please consult your doctor for any medical or health-related questions. The information contained in the Services should NOT be used to disregard medical or health-related advice from a physician or licensed medical professional.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. Eligibility; Accounts.
2.1 If you are below the age of consent under applicable law in the country in which you reside, then your parent or legal guardian must read and accept this Agreement in your name and on your behalf. You represent and warrant that you are at least 13 years of age (or the age of legal majority where you live). If you are under age 13, you may not, under any circumstances or for any reason, use the Site.
2.2 If you use our Services on behalf of another person or entity, (a) all references to “you” throughout this Agreement will include that person or entity, (b) you represent and warrant that you are authorized to accept this Agreement on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates this Agreement, the person or entity agrees to be responsible to us.
2.3 You are solely responsible for ensuring that your use of the Services complies with all laws, rules and regulations applicable to you. If the applicable law in the country in which you reside requires that you must be older than 13 to receive certain Services, then the minimum age is the legally required one. If you are a minor, you may wish to consult your parents about what portions of the Services are appropriate for you. The right to access the Site is revoked where this Agreement or use of the Site is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
2.4 The Site is controlled and operated from the United States, and is not intended to subject K&A to any non-U.S. jurisdiction or law. The Site may not be appropriate or available for use in some non-U.S. jurisdictions. 2.5. You may need to register for a free account to use all or part of the Services. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not K&A, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your account.
3. Use of the Services.
3.1 The Services contain material, including but not limited to software, text, graphics and images (collectively referred to as the “Content”). We may own the Content, or portions of the Content may be made available to us through arrangements that we have with third parties. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of any Content. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. Other than the limited rights granted under this Agreement, you will acquire no licenses or rights in or to the Content. Except as permitted under this Agreement or otherwise provided in writing by us, you may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. If you violate any part of this Agreement, your right to access and/or use the Content and Services will automatically terminate and you will immediately destroy any copies you have made of the Content.
3.2 “KIDS & ART,” “CANCER SUCKS. ART HEALS.”, “Joy heART Project,” “Amaeyzing Legacy,” “Show me your heART,” “Spread the healing effect of Art,” “Artists as Second Responders,” and the other trademarks, service marks, and logos of K&A (the “K&A Trademarks”) used and displayed in connection with the Services are registered and unregistered trademarks or service marks of K&A. Other company, product, and service names located on the Services or otherwise used in connection with the Services may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with the K&A Trademarks, the “Trademarks”). Nothing on the Site, in the Services or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Services without our prior written consent specific for each such use. The Trademarks may not be used to disparage us or any applicable third party, our or the applicable third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any K&A Trademarks as part of a link to or from any website is prohibited without our prior written consent. All goodwill generated from the use of any K&A Trademark will inure to our benefit.
4. Prohibited Conduct.
4.1 You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Exploit or otherwise engage in bad acts with respect to children’s photos or identities or in child pornography;
- Impersonate or post User Content (defined in Section 6 below) on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Post, transmit or otherwise make available any User Content that is or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right without the express prior written consent of the applicable owner;
- Post, transmit or otherwise make available any private or personal information of a third party without such third party’s consent;
- Sell, resell or commercially use our Services or use our Services for any purpose that is fraudulent or otherwise tortious or unlawful;
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
- Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services except as expressly permitted;
- Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Attempt to decipher, decompile, disassemble or reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
- Frame or mirror any portion of the Site, or otherwise incorporate any portion of the Site or Services into any product or service;
- Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
- Delete or alter any material we or any other person or entity posts on the Site;
- Use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site;
- Bypass or ignore instructions contained in our robots.txt file; or
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement or our guidelines and policies.
4.2 Enforcement of this Section 4 is solely at K&A’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
4.3 Please note that parental control protections (such as computer hardware, software or filtering services) may be commercially available to assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections should be available at: https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers (last checked on January 25, 2021).
5. External Sites.
5.1 The Site may contain links to third party websites, services or other resources on the Internet, including but not limited to our social media pages, and other websites, services or resources may contain links to the Site (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. If you decide to access any External Sites, you do so at your own risk. You acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through any External Sites.
5.2 To the fullest extent permitted by applicable law, you release K&A Parties (defined in Section 11 below) from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties related to such External Sites. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code §1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
6. User Content.
6.1 With respect to the Photos (defined below), Submissions (defined below), and any content or other materials you provide to us (collectively, the “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, and that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You will not (and will not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty. You will not (and will not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that you know is false, misleading, untruthful or inaccurate, or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion.
6.2 The Site may pull content from our users who share photos and videos on Instagram, Twitter, Pinterest, Youtube and/or Facebook by tagging the @kidsandartorg account or otherwise sharing such content directly with us (collectively, “Photos”). You acknowledge and agree that the Photos may be used in emails, newsletters and on the Site, and you hereby grant us permission to use and authorize others to use your name or social media handle in association with the Photos for identification, publicity related to the Services and similar promotional purposes.
6.3 By uploading or providing any User Content, you hereby grant and will grant K&A and its successors and assigns a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to reproduce, adapt, publish, create derivative works from, copy, display, upload, publicly perform, distribute, store, modify and otherwise use your User Content and any name, username, likeness, voice or photograph provided in connection with your User Content, without compensation to you, in connection with the operation of the Site or the promotion, advertising or marketing of the Services, in any form, medium or technology now known or later developed. You represent and warrant that you have all rights necessary to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
6.4 Except where prohibited by applicable law, by submitting User Content to us, you are waiving and agreeing not to assert any copyrights or “moral” rights or claim resulting from our alteration of the User Content or any Photos, Submissions, photograph(s), footage, illustrations, statements or other work contained in the User Content. You are also agreeing to appoint K&A as your irrevocable attorney-in-fact with respect to the User Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that we can use the User Content that you are licensing in any way we see fit, own and protect the rights in any derivative works created from your User Content, and have the User Content removed from any other website or forum.
6.5 You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (collectively, “Submissions”) that you provide to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
6.6 You acknowledge and agree that we may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of K&A, our users and the public. You understand that the technical processing and transmission of the Site, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
6.7 Enforcement of this Section 6 is solely at K&A’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 6 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
7. IP Infringement.
We respect the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below. We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to K&A’s Copyright Agent at email@example.com (Subject line: “Takedown Request”). You may also contact us by mail at 1443 Howard Ave, Suite 218 Burlingame, CA 94010. Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to K&A for certain costs and damages.
8. Ownership; Limited License.
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by K&A or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
9. Donations, Payments; Ordering & Availability; Billing.
9.1 You agree to provide accurate and up-to-date payment information at the time you make a donation or order any Product. We have contracted with a third-party payment processor to facilitate purchases made on the Site. When you make a purchase through the Site, you will provide your payment details and any additional information required to complete your order directly to our third-party payment processor. You represent and warrant that you have the right to use any credit card you submit in connection with a transaction. You should be aware that online payment transactions are subject to validation checks by our payment processor and your card issuer and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our payment processor uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Please note, it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our payment processor may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
9.2 All amounts are shown in U.S. dollars. You agree to have sufficient funds or credit available upon placement of any such order to ensure that the purchase price and applicable taxes, shipping and handling charges will be collectible by us. After you place your order, we will send you a confirmation email (the “Order Confirmation”). We strive to provide accurate pricing information regarding the Products available on the Site. We cannot, however, insure against pricing errors. We reserve the right, at our sole discretion, to not process or to cancel any orders placed for a Product whose price was incorrectly posted on the Site as a result of an error. If this occurs, we will notify you by email. The Site may contain information regarding the availability of Products. In rare cases, a Product may be in stock when you place the order, and sold out by the time we attempt to process the order. Should this happen, we will notify you by email and cancel the item from your order. Your sole remedy in the event of a pricing or availability error is to cancel your order and obtain a refund.
9.3 Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value added tax and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping or carriage of the Products as such costs are specified by us when you submit your order.
9.4 All orders are subject to our acceptance or rejection based on Product availability, noncompliance with this Agreement or any other reason as determined in our sole discretion. For instance, if we have reason to believe that your order is not for personal use, we reserve the right to reject or cancel any order that you place. We also reserve the right, in our sole discretion, to take steps to verify your identity to process your order. We will either not charge you or refund the charges for orders that we cancel or do not process.
9.5 We attempt to provide accurate descriptions of Products. We do not warrant, however, that the descriptions are accurate, complete, reliable, current or error-free. If a Product is not as described, your sole remedy is to return the item, unless otherwise specified in writing by us. We occasionally run promotions or provide limited-time offers for our Products. Please review the promotion or offer for eligibility and other terms and conditions.
10.1 Your order will be fulfilled by the delivery date set out in the Order Confirmation or, if no delivery date is specified, then within 30 days after the date of the Order Confirmation, unless there are exceptional circumstances and except in the case of pre-orders.
10.2 Your order will be delivered to the delivery address that you specify when placing your order. If we are unable to deliver to your delivery address, for example if your delivery address is geographically remote, we will notify you before we accept your order. We reserve the right not to deliver to any country that is prohibited by applicable export laws. Products comprised within the same order cannot be delivered to different addresses.
10.3 The Product(s) ordered will be at your risk from the time the Product(s) are delivered to the carrier. Ownership of the Product(s) ordered will also pass to you upon the carrier’s receipt of the Product(s), provided full payment of all sums due in respect of the Product(s), including any delivery charges, has been received.
10.4 You are responsible for inspecting all Products for any damage or other issues upon delivery. If any Product you order is damaged or faulty when delivered to you or has developed a fault, you may have one or more legal remedies available to you, depending on when you make us aware of the problem, in accordance with your legal rights. If you believe a Product was delivered damaged or faulty or has developed a fault, you should inform us as soon as possible, preferably in writing, giving your name, address and order reference. Nothing in this section affects your legal rights. 10.5 All sales are final and no refunds will be allowed except as required by law.
11. Disclaimers; Release and Limitation of Liability.
11.1 Products and Workshops may include or involve the use of our unique art kits. While we’ve designed the art kits to be fun and allow kids to explore their creative side, all art kits have the potential for safety issues. Therefore, all art kits may only be used with adult supervision. K&A will not be held responsible for any damages as a result of any activities or materials contained within the art kits. Adults should handle or assist with the contents of the art kits, which may include, scissors, glue, small items which may be choking hazards for young children, plastic, or other potentially harmful materials. K&A will not be held liable in the event of an accident or injury. Further, to the fullest extent permitted by applicable law, you release K&A from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between you and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code §1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
11.2 Except As Otherwise Provided By Us In Writing, K&a And Our Officers, Directors, Employees, Agents, Suppliers, Or Licensors (collectively, The “k&a Parties”) Make No Warranties Or Representations About The Content Or The Services, Including But Not Limited To The Services’ Accuracy, Reliability, Completeness, Timeliness Or Reliability. We Attempt To Display The Products And Other Materials And Information You View On The Sites, Including Pricing And Other Information, As Accurately As Possible. However, We Do Not Guarantee The Accuracy Or Completeness Of Such Materials And Information. The K&a Parties Will Not Be Subject To Liability For The Truth, Accuracy Or Completeness Of The Content Or The Site Or Any Other Information Conveyed To The User Or For Errors, Mistakes Or Omissions Therein Or For Any Delays Or Interruptions Of The Data Or Information Stream From Whatever Cause. You Agree That You Use The Services And The Content At Your Own Risk.
11.3 The K&a Parties Do Not Warrant That The Site Will Operate Error Free Or That The Site, Its Servers, Or The Content Are Free Of Computer Viruses Or Similar Contamination Or Destructive Features. If Your Use Of The Site Or The Content Results In The Need For Servicing Or Replacing Equipment Or Data, No K&a Party Will Be Responsible For Those Costs.
11.4 Except As Otherwise Provided By Us In Writing And To The Extent Permitted Under Applicable Law, The Services Are Provided On An “as Is” And “as Available” Basis Without Any Warranties, Whether Express, Implied Or Statutory, Of Any Kind. The K&a Parties Disclaim All Warranties With Respect To The Services External Sites, Including, But Not Limited To, The Warranties Of Title, Merchantability, Non Infringement Of Third Parties’ Rights, And Fitness For Particular Purpose.
11.5 In No Event Will Any K&a Party Be Liable For Any Damages Whatsoever (including, Without Limitation, Indirect, Incidental, Special, Exemplary, Punitive And Consequential Damages, Lost Profits, Or Damages Resulting From Lost Data Or Business Interruption) Resulting From The Use Or Inability To Use The Services, The Content Or External Sites, Whether Based On Warranty, Contract, Tort (including Negligence), Or Any Other Legal Theory, Even If Such K&a Party Has Been Advised Of The Possibility Of Such Damages, Or For Any Direct Damages In Excess Of (in The Aggregate) The Greater Of $50 Or The Amount Paid By You To Use The Services (if Any) During The Twelve Months The Dispute.
11.6 Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF THE K&A PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THIS AGREEMENT AFFECTS ANY LEGAL RIGHTS AND REMEDIES YOU HAVE UNDER LOCAL LAW.
To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless the K&A Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach or alleged breach of this Agreement, any User Content you provide, or your access to, use or misuse of the Content or the Services. We will provide notice to you of any such claim, suit, or proceeding that triggers this indemnification obligation, and you agree to do the same by writing to K&A at firstname.lastname@example.org. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
13. Arbitration Clause And Class Action Waiver—important—please Review As This Affects Your Legal Rights.
Please Read The Following Section Carefully Because It Requires You To Arbitrate Certain Disputes And Claims With K&a And Limits The Manner In Which You Can Seek Relief From Us, Unless You Opt Out Of Arbitration By Following The Instructions Set Forth Below. No Class Or Representative Actions Or Arbitrations Are Allowed Under This Arbitration Agreement. In Addition, Arbitration Precludes You From Suing In Court Or Having A Jury Trial.
13.1 You And K&a Agree That Any Dispute Arising Out Of Or Related To This Agreement Or Our Services Is Personal To You And K&a And That Any Dispute Will Be Resolved Solely Through Individual Action, And Will Not Be Brought As A Class Arbitration, Class Action Or Any Other Type Of Representative Proceeding.
13.2 Except for small claims disputes in which you or K&A seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or K&A seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and K&A waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or our Services resolved in court. Instead, for any dispute or claim that you have against K&A or relating in any way to the Services, you agree to first contact K&A and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to K&A by email at email@example.com or by certified mail addressed to Kids & Art Foundation, 1443 Howard Ave, Suite 218 Burlingame, CA 94010. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and K&A cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration. Arbitration proceedings will be held in San Mateo County, California or may be conducted telephonically or via video conference for disputes alleging damages less than $500, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
13.3 You and K&A agree that this Agreement affects interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. §1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
13.4 The arbitrator, K&A, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
13.5 You and K&A agree that for any arbitration you initiate, you will pay the filing fee and K&A will pay the remaining JAMS fees and costs. For any arbitration initiated by K&A, K&A will pay all JAMS fees and costs. You and K&A agree that the state or federal courts of the State of California and the United States sitting in San Mateo County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
13.6 Any claim arising out of or related to this Agreement or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and K&A will not have the right to assert the claim. You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 13 by emailing firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 16.1.
13.7 If any portion of this Section 13 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision will be severed from this Agreement; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 13 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 13; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 13 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 will be enforceable.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Site or the Content at any time and for any reason (including if we believe that you have engaged in any suspected fraudulent or abusive activity, or violated or acted inconsistently with the letter or spirit of this Agreement) without prior notice or liability, including the right to reject any order you place for the purchase of Products. We reserve the right to change, suspend, or discontinue all or any part of the Services or the Content at any time without prior notice or liability. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity, limitations of liability, class action waivers and arbitration.
15. User Must Comply with Applicable Laws.
15.1 You are solely responsible for ensuring compliance with the laws of your specific jurisdiction and for abiding by all applicable local, state, provincial, national and international laws and regulations.
15.2 The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content or Products to countries or persons prohibited under the export control laws. By downloading Content from the Site, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
16.1 This Agreement is governed by the internal substantive laws of the State of California, without respect to its conflict of laws provisions. Any dispute between you and K&A that is not subject to arbitration or cannot be heard in small claims court will be resolved in state and federal courts sitting San Mateo County, California. If any provision of this Agreement is found to be unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions of the Agreement, which will remain in full force and effect. Our failure to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement. No waiver will be effective against us unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. We will not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. Any information you submit to or provide through the Site might be publicly accessible, and you should protect important and private information. We are not liable for protection of privacy of email or other information transferred through the Internet or any other network that you may use.
16.2 Except as expressly agreed by us and you, this Agreement constitutes the entire agreement between us and you with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between us and you with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import. This Agreement is personal to you, and is not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. You may contact us at the following address: 1443 Howard Ave, Suit 218 Burlingame, CA 94010 or at the following email address email@example.com. Electronic notices should be sent to firstname.lastname@example.org.
16.3 Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at
1625 N. Market Blvd.,
Suite N-112, Sacramento,
California 95834, or by
telephone at 1 (800) 952-5210.