ARBITRATION NOTICE: 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. WE EXPLAIN SOME LIMITED EXCEPTIONS BELOW.
1. The KOT Service
When you create an account with KOT, we will give you access to all of the KOT products, features, applications, services, technologies, and software that we provide to users, including the following, hereinafter collectively referred to as the Service:
A global platform for connecting with and growing your on-line community for purposes of:
- Getting a curated selection of brands, products, and services you like; and
- The ability to solicit feedback (votes) from other KOT users on content you post.
These constitute the only authorized uses of the App.
3. Your Obligations
By using our Service, you acknowledge and agree that:
- You are at least 13 years old.
- You are not be prohibited by law from using or paying for our Services.
- We have not have previously disabled your account for violation of law or any of our policies.
- You are not a convicted sex offender.
- You will maintain and promptly update your account information as necessary, maintain the security of your password, and be solely responsible for access and use of the Services via your account, including unauthorized access. You agree to immediately notify us if you discover or otherwise suspect any unauthorized activities in connection with your account or the Services.
- You will not:
- Impersonate others or provide inaccurate information;
- Create an account for anyone other than yourself, unless you have that person’s express permission;
- Use our Service to do anything unlawful, misleading, or fraudulent, or for an illegal or unauthorized purpose;
- Use the Service to process or store any information that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State or the Health Insurance Portability and Accountability Act;
- Do anything to interfere with or impair the intended operation of the Service, including but not limited to introducing any viruses worms, defects, Trojan horses, malware, or any other items of a destructive nature;
- Attempt to create accounts or access or collect information in unauthorized ways;
- Buy, sell, or transfer, or attempt to buy, sell, or transfer any aspect of your account, including your username, or solicit, collect, or use login credentials or badges of other users.
- Post private or confidential information or do anything that violates someone else’s rights, including intellectual property rights.
- Post anything that is objectionable or abusive. By way of example, but not limitation, this includes posts with content that is racist, sexist, transphobic, sexually graphic or revealing, and anything that could constitute harassment, bullying, or encourage violent behavior of any kind. We will not tolerate anything we consider to be objectionable or abusive, will promptly remove any post that contains such content, and may delete your account.
Use a domain name or URL in your username without our prior written consent.
4. Ownership of Content and Permissions. You grant us the permissions we need to provide the Service, which specifically includes the following:
- Permission to use your username, profile picture, and information about your relationships and actions with accounts, ads, and sponsored content. You give us permission to show your username, profile picture, and information about your actions (such as likes) or relationships (such as wishlists, items, and friends) next to or in connection with accounts, ads, offers, and other sponsored content that you follow or engage with that are displayed on KOT, without any compensation to you. For example, we may show that you liked a sponsored post created by a brand that has paid us to display its ads on KOT. As with actions on other content and follows of other accounts, actions on sponsored content and follows of sponsored accounts can be seen only by people who have permission to see that content or follow.
- You agree that we can download and install updates to the Service on your device.
- Our Rights. We retain the following rights:
- The right to change your username. We may change your username if it is inappropriate or infringes someone else’s rights, for example, if it infringes someone’s intellectual property, impersonates another user, or contains profane, violent, racist, or sexually inappropriate references or words.
- The intellectual property rights with respect to any of the content we have and make available as part of our Service. You may use content covered by our intellectual property rights in connection with your KOT account with our prior written permission, but we retain all rights to our content.
- All rights with respect to our source code. You must obtain our prior written permission to modify, create derivative works of, decompile, or otherwise attempt to extract source code from us.
5. Deleting Your Account and Your Content. You have the right to delete your account and content at any time. This will end the license you have granted to us, as stated above. However, content you delete may persist for a limited period of time in backup copies and will still be visible where others have shared it. You specifically acknowledge and agree that when you delete your account, KOT is under no obligation to proactively delete your content where it exists in backup copies or where it is shared by others.
6. Third Party Content and Integrated Services. Our Services may display or link to third-party content, advertisements, links, promotions, logos or other materials, including integrated services (collectively, “Third-Party Content”). We do not control, endorse, or sponsor any Third-Party Content or the third parties responsible for or referenced on the Third-Party Content. We make no representations or warranties of any kind regarding Third-Party Content. Your interactions with Third-Party Content, and any third party that provides Third-Party Content, are solely between you and such third parties, and Keep or Toss, Inc. is not party to and has no responsibility or liability with respect to any Third-Party Content.
7. Severability. If any aspect of this agreement is unenforceable, the rest will remain in effect.
8. Amendment and Waiver. Any amendment or waiver to our agreement must be in writing and signed by us. If we fail to enforce any aspect of this agreement, it will not be deemed a waiver of our rights.
9. Reservation of Rights. We reserve all rights not expressly granted to you.
10. No Third Party Rights. This agreement does not give rights to any third parties.
11. Assignment. You cannot transfer or assign your rights or obligations under this agreement without our consent. Our rights and obligations can be assigned to others. For example, this could occur if our ownership changes (as in a merger, acquisition, or sale of assets) or by law.
12. Limitation of Liability and Disclaimer of Warranty.
- Our Service is provided “as is,” and we cannot guarantee it will be safe and secure or will work perfectly all the time. TO THE EXTENT PERMITTED BY LAW, WE ALSO DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- We aren’t liable for your actions or content or the actions or content of others, whether online or offline, including unlawful or objectionable content. We also aren’t liable for services and features offered by other people or companies, even if you access them through our Service.
- Our liability for anything that happens on the Service is limited as much as the law will allow. Specifically, you agree that Keep or Toss, Inc. is not liable for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to these Terms, even if we have knowledge of the possibility of such damages. This includes when we delete your content, information, or account. Our aggregate liability arising out of or relating to these Terms will not exceed the greater of $100 or the amount you have paid us in the past twelve months.
- You agree to defend, at our request, indemnify and hold us harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with these Terms or your use of the Service. You will cooperate as required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without our prior written consent.
13. Dispute Resolution.
- Except as provided below, the parties agree that any cause of action, legal claim, or dispute between the parties arising out of or related to these Terms (“claim(s)”) must be resolved by arbitration on an individual basis. Class actions and class arbitrations are not permitted. You may bring a claim only on your own behalf and cannot seek relief that would affect other KOT users. If there is a final judicial determination that any particular claim (or a request for particular relief) cannot be arbitrated in accordance with this provision’s limitations, then only that claim (or only that request for relief) may be brought in court. All other claims (or requests for relief) remain subject to this provision.
- Instead of using arbitration, the parties can bring claims in the appropriate “small claims” court, if the rules of that court will allow it. If you don’t bring your claims in small claims court (or if either of the parties appeal a small claims court judgment to a court of general jurisdiction), then the claims must be resolved by binding, individual arbitration. The American Arbitration Association will administer all arbitrations under its Consumer Arbitration Rules. The parties expressly waive a trial by jury.
- The following claims don’t have to be arbitrated and may be brought in court: disputes related to intellectual property (like copyrights and trademarks) or efforts to interfere with the Service or engage with the Service in unauthorized ways (for example, automated ways). In addition, issues relating to the scope and enforceability of the arbitration provision are for a court to decide.
- This arbitration provision is governed by the Federal Arbitration Act.
- Before you commence arbitration of a claim, you must provide us with a written Notice of Dispute that includes your name, residence address, username, email address or phone number you use for your KOT account, a detailed description of the dispute, and the relief you seek. Any Notice of Dispute you send to us should be mailed to KOT, Inc., ℅ Registered Agent Solutions, Inc., 9 E. Loockerman Street, Suite 311, Dover, Delaware, 19901. Before we commence arbitration, we will send you a Notice of Dispute to the email address you use with your KOT account, or other appropriate means. If we are unable to resolve a dispute within thirty (30) days after the Notice of Dispute is received, either of the parties may commence arbitration. If your claim seeks less than $5,000 and you provided us with proper Notice of Dispute under this section, we will pay all arbitration filing fees, administration and hearing costs, and arbitrator fees. For all other claims, the costs and fees of arbitration shall be allocated in accordance with the arbitration provider’s rules, including rules regarding frivolous or improper claims.
- For any claim that is not arbitrated or resolved in small claims court, you agree that it will be resolved exclusively in the U.S. District Court for the Southern District of California or a state court located in Los Angeles County. You also agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim.
- The laws of the State of California, to the extent not preempted by or inconsistent with federal law, will govern these Terms and any claim, without regard to conflict of law provisions.
14. Unsolicited Material. We always appreciate feedback or other suggestions, but may use them without any restrictions or obligation to compensate you for them, and are under no obligation to keep them confidential.
15. Updating These Terms. We may change our Service and policies, and we may need to make changes to these Terms so that they accurately reflect our Service and policies. Unless otherwise required by law, we will notify you (for example, through our Service) before we make changes to these Terms and give you an opportunity to review them before they go into effect. Then, if you continue to use the Service, you will be bound by the updated Terms. If you do not want to agree to these or any updated Terms, you can delete your account by emailing info@keeportoss.
Drafted: July 30, 2020