Terms of Service
Last Updated: September 2, 2019
Cactus (https://cactus.app) is owned and operated by Kinecho, Inc.
PLEASE CAREFULLY READ THIS AGREEMENT, INCLUDING THE REQUIRED USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND THE LIMITATIONS ON THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE, AS FULLY DESCRIBED IN THE “DISPUTE RESOLUTION/CLASS-ARBITRATION WAIVER” SECTION OF THIS AGREEMENT.
BY ACCESSING OR USING THE PLATFORM OR ANY CONTENT OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, KINECHO IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR ANY CONTENT OR SERVICES ACCESSIBLE THROUGH THE PLATFORM AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR ANY CONTENT OR SERVICES. IF YOU ACCESS OR USE THE PLATFORM OR ANY CONTENT OR SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
Unless you later enter into any other agreements with Kinecho regarding the Platform, this Agreement is the complete and exclusive agreement between you and Kinecho regarding your access to and use of the Platform, and all Content and Services. This Agreement supersedes any prior agreement or other communications between you and Kinecho relating to your use of and access to the Platform, and any Content or Services.
TERM. This Agreement is entered into as of the earlier of the date you first download or install any Application or first access or use any other portion of the Platform (the “Effective Date”) and will continue until terminated as set forth herein.
SATISFACTION GUARANTEE. You may cancel your membership by contacting us at firstname.lastname@example.org. If you aren’t happy with Cactus or Kinecho at any time, contact us at email@example.com and we will try our best to help you out.
ELIGIBILITY. The Platform is not available to individuals under the age of 13 or who do not meet any of the other qualifications included in this Agreement. If you are under age 13, or do not meet the qualifications in this Agreement, please do not attempt to access or use the Platform. If you are 13 or older but younger than 18, then you may access and use the Platform only if your parent or guardian accepts this Agreement on your behalf. If you are a parent or guardian entering this Agreement for the benefit of a child age 13 or older but under 18, then you agree you will be solely responsible for all access to and use of the Platform.
MODIFICATIONS. Kinecho may, at any time, modify or discontinue all or part of the Platform, Content, or Services; change, modify or waive fees required to use the Platform, Content, or Services; or offer opportunities to some or all Users. Kinecho also reserves the right, at any time, to modify this Agreement. Kinecho will inform you of the presence of any changes to this Agreement by posting those changes on the Platform or by providing you with notice through the Platform. Any modifications will be effective immediately upon posting on the Platform or delivery of such notice through the Platform. You may terminate this Agreement as set forth below if you object to any such modifications. However, you will be deemed to have agreed to any and all modifications through your continued use of the Platform, Content, or Services following such notice period. Kinecho will note the effective date of the latest version of this Agreement at the end of this Agreement.
Responsibilities. You are solely responsible for all access to and use of your Account (whether authorized or unauthorized), including all Content, Submissions, and Services accessed through your Account. Kinecho may deem any actions taken through your Account to have been authorized by you. You are responsible for compliance, and the compliance any other Users of your Account, with this Agreement.
Account Authority. If you create an Account for the storage of your Submissions, then you are the “Account Authority” and will have control over your Account pursuant to the terms of this Agreement. If an Account is only associated with you, then you will be the Account Authority for your Account, unless you designate a different Account Authority as specified below. Kinecho may deem the Account Authority to have full authority for all decisions relating to your Account, including: (a) addition or removal of Users, Linked Connections, and Contacts; (b) permissions to access your Account; (c) disputes regarding your Account; (d) notices and other communications relating to your Account; and (e) any other decisions that may be required regarding your Account. There must always be one and only one Account Authority for each Account.
To Platform and Services. Subject to this Agreement, during the term of this Agreement, Kinecho will provide you with a limited right to access and use the Platform and Services under this Agreement. All access to the Site and all Services will be solely by you for your own non-commercial use. Your rights to access and use the Platform and Services is non-exclusive, non-transferable, and non-sublicensable. Kinecho offers a variety of upgraded hosting, support, and ancillary services under the terms and conditions for each such service. By signing up for an upgraded service account, you agree to abide by such additional terms and conditions in addition to this Agreement.
To Applications. Subject to your compliance with this Agreement and any other terms and conditions accompanying each Application, Kinecho will permit you to download and install Applications and operate those Applications solely for the purpose of using and accessing Platform. You may install each Application only on a single computer or mobile device or smart phone owned or controlled by you and used only for your own personal and non-commercial purposes in accordance with this Agreement and any applicable terms and conditions accompanying the Application or otherwise provided to you by Kinecho. Except as expressly set forth in the previous sentence, you are granted no licenses or other rights in or to any Application or any IPR (as defined below) therein or related thereto. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement you are required to agree to before being given access to any Application.
To Alerts and Notifications. You may sign up for custom alerts and notifications through the Platform. Kinecho does its best to ensure that alerts and notifications operate as expected and with full accuracy, but it cannot guarantee performance.
To Other Users. You may be permitted to link, connect, and otherwise communicate with other Contacts, Linked Connections, and third parties through the Platform. By linking, connecting, or communicating with such users, you are agreeing to allow those users to communicate directly with you through the Platform. You are solely responsible for all communications between you and any other User or third party through the Platform. Your extension or acceptance of a link, connection, or other communication with another user or other third party will serve as your affirmative “opt in” to the disclosure by Kinecho of any data, information, or content (which may include your personal information) to that user or third party.
To Interfaced Third Party Products and Services. The Platform may provide you the ability to use products and services developed, provided, or maintained by a third party that maintain an interface to the Platform (“Third Party Products and Services”). Unless otherwise stated in this Agreement, Kinecho has no control over, is not responsible for, and does not provide support for, any Third Party Products and Services. Kinecho is not responsible for your use of any Third Party Product and Service, or any harm or losses arising from or relating to your use of any Third Party Products and Services. In addition to the terms of this Agreement, your access to and use of any Third Party Products and Service is also subject to any other agreement you may agree to before being given access to the Third Party Products and Services, which may include payment of additional fees. Your use any Third Party Products or Services, or acceptance of any Third Party Agreement, will serve as your affirmative “opt in” to the disclosure by Kinecho of any data, information, or content (which may include your personal information) to such related third party.
RESTRICTIONS. The Platform and the software, firmware, hardware, databases, and other technology used by or on behalf of Kinecho to provide the Services and Content, and their structure, organization, coordination, and underlying data, information, and source code (collectively, the “Technology”) constitute valuable IPR of Kinecho. You will not, and will not permit any third party to: (1) access or use the Technology, in whole or in part, except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts or other automated means to collect information from or otherwise access or interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use the Technology; (6) make the Technology or access thereto available to any third party, except as expressly permitted under this Agreement; (7) disassemble, reverse engineer, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (8) access or attempt to access the Technology other than through the interfaces provided by Kinecho; (9) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (10) alter or misrepresent the identification of the origin of any Content transmitted through the Technology; (11) interfere in any manner with the operation or hosting of the Technology, or attempt to gain unauthorized access to the Technology; or (12) use the Technology to create a competing product or service. You will not allow any access to or use of the Technology except consistent with the restrictions set forth in this Agreement.
APP STORE. The Application may be obtained through a third party distribution platform (e.g., the Apple App Store, the Google Play Store) (each, an “App Store”) and is to be used solely on a mobile device owned or controlled by you that operates such third party’s operating system. This Agreement incorporates by reference any other terms available at the respective App Store from which you have obtained the Application. You agree that this Agreement is between you and Kinecho, and not with the App Store. The App Store is not responsible for the Application, maintenance, and support services or any warranty thereof, or addressing any claims related thereto. You agree to pay all fees charged by the App Store in connection with the Application (if any). The Application may also be subject to additional terms and conditions and privacy policies, and Kinecho is not a party to nor responsible for those additional terms.
PAYMENT AND RENEWAL.
Fees Generally. The fees for use of the Platform and Services will be set forth on the Platform. The Platform and Services you subscribe to or otherwise purchase will be subject to the pricing and limitations displayed or provided through the Platform in connection with the purchase or transaction such package, in addition to the terms of this Agreement. You should be sure to review the product options on the Service for pricing, Service options and number of Contacts and Linked Connections. All fees are due and payable in advance of services. Kinecho currently uses third parties to process payments. Our third-party payment processors accept payments through various credit cards, as detailed on the applicable payment screen. All monetary transactions on the Service take place in U.S. Dollars. You are responsible for determining and paying the appropriate government taxes, fees, and service charges resulting from a transaction occurring through the Service, except for taxes on our income. We are not responsible for collecting, reporting, paying, or remitting to you any such taxes, fees, or service charges, except as may otherwise be required by law. All information that you provide in connection with a purchase or other transaction through the Platform must be accurate complete and current. Except as permitted herein, all purchases are non-cancellable and non-refundable.
Upgrades. You may be offered the opportunity to purchase, subscribe to, or otherwise obtain access to certain upgraded Services or Content or other products or services through the Platform for an additional fee, including without limitation content digitization services (any such upgraded Services or Content, an “Upgrade”). Any purchase or other transaction of an Upgrade through the Platform will be subject to any terms and conditions displayed or provided through the Platform in connection with the purchase or transaction of an Upgrade in addition to the terms of this Agreement.
TERMINATION. You may terminate this Agreement at any time upon notice to Kinecho. Any such notice will be effective upon actual receipt by Kinecho. Kinecho may terminate your access to all or any part of the Platform at any time, with or without cause, with or without notice, effective immediately if it has reason to suspect you are violating this Agreement or otherwise violating applicable law. Kinecho may also terminate this Agreement upon notice to you if Kinecho, in its sole discretion, ceases to make any portion of the Platform generally commercially available. Upon termination of this Agreement for any reason: (1) all rights and subscriptions granted to you under this Agreement will terminate; (2) you will immediately cease all use of and access to the Platform and all Kinecho Content; (3) you will cease use of and delete all Account IDs or Content in your possession or control; and (4) all amounts then owed by you (if any) under this Agreement will become immediately due and payable. Sections which are designed to survive termination will survive, including without limitation, restrictions on use, indemnity, an d warranty disclaimers. Kinecho will use reasonable efforts to provide you with the ability to download your Submissions in the event of any termination (except for a termination due to your breach of the Agreement).
SUSPENSION. Without limiting Kinecho’s right to terminate this Agreement, Kinecho may also immediately and indefinitely suspend your access to the Platform, with or without notice to you, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by Kinecho to be inappropriate or detrimental or harmful to the Platform, or to Kinecho, any other User, or any other third party.
INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP. This Agreement does not transfer from Kinecho to you any aspects of the Platform or IPR (as defined below), and all right, title and interest, including, without limitation, all IPR, in and to the Platform, Kinecho Content, Services, and any additions, improvements, updates, derivatives, and modifications thereto will remain (as between the parties) solely with Kinecho. You acknowledge that you are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to you to use them apart from the rights granted under this Agreement. Kinecho, and the Kinecho logo, and all other trademarks, service marks, graphics, and logos used in connection with Kinecho or the Platform are trademarks or registered trademarks of Kinecho or its licensors. Other trademarks, service marks, graphics and logos used in connection with the Platform may be the trademarks of other third parties. Your use of the Platform grants you no right or license to reproduce or otherwise use any Kinecho or third-party trademarks or logos. For purposes of this Agreement, “IPR” means any and all intellectual property and proprietary rights and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all patents, copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, privacy rights, rights in data and databases, and contract rights.
Submissions Dashboard. You may use the Platform to create, organize, and configure Submissions in a dashboard, provided through the Platform (“Submissions Dashboard”). Submissions Dashboard is linked to your Account. Kinecho reserves the right to display advertisements on Submissions Dashboard unless you have purchased an Upgrade. You acknowledge and agree that Submissions Dashboard is provided to you for convenience purposes only and Kinecho is not liable for any unavailability or inaccuracy, temporary, or otherwise, of Submissions Dashboard.
Storage Limits. The Platform and Services are designed to store your own personal memories, photos, and family stories. It is not designed to be a storage repository for business records or large amounts of data that is unrelated to your personal family history. Kinecho may, upon notice to you, generally set storage limits at any time, and may limit the size and number of Submissions at any time in its discretion.
Third Party Submissions. Certain Content and submissions of third parties (“Third Party Submissions”) may be available through the Platform and Service. Kinecho has no independent basis to verify or contradict the accuracy or completeness of the Third Party Submissions and will not be responsible for any erroneous Third Party Submissions provided or available through the Platform.
Kinecho Content. Other than Submissions, all Content accessible through the Kinecho Platform (“Kinecho Content”) is owned by Kinecho or any user or third party providing the Kinecho Content. All Kinecho Content is for informational purposes only. Kinecho has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Kinecho Content. You are solely responsible for your use of, or reliance on, any Kinecho Content. Subject to this Agreement, you may access the Kinecho Content solely for Your own personal and noncommercial purposes in connection with your own use of the Platform. You are granted no other licenses or rights in or to any Kinecho Content. You will not, and will not permit any third party to: (1) alter, modify, reproduce, or create derivative works of any Kinecho Content; (2) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Kinecho Content; or (3) alter, obscure, or remove any copyright, trademark or any other notices that are provided on or in connection with any Kinecho Content. Certain of the Kinecho Content may include or be based on Content from third party providers (“Third Party Content”). Kinecho has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Platform. By operating the Platform, Kinecho does not represent or imply that it endorses any Content, or that it believes such Content is accurate, useful, or non-harmful. Without limiting the foregoing, Kinecho will not be held liable to you or any other third party for any Content, including Submissions and Third Party Submissions, under a Federal Law called the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in this Agreement, you are granted no licenses or other rights in or to any Kinecho Content, or any IPR therein or related thereto. Kinecho disclaims any responsibility for any harm resulting from your use of the Kinecho Content, Submissions, or Third Party Submissions.
IMPROVEMENTS AND FEEDBACK. You shall, and hereby do, assign to Kinecho your entire right, title, and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Technology which you may propose or make at any time (“Improvements”). You shall, and hereby do, assign to Kinecho your entire right, title, and interest in any feedback you provide to Kinecho regarding the Technology, including but not limited to its usability, bug reports, and testing results (collectively, “Feedback”). Kinecho may use and otherwise exploit the Feedback and Improvements as it wishes with no compensation to you.
LINKED SITES. Kinecho has not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages that link to the Platform. Kinecho does not have any control over those non-Kinecho websites, web pages, applications, or data, and is not responsible for their contents or their use. By linking to a non-Kinecho application, data set or website, Kinecho does not represent or imply that it endorses such application, data set or website. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Kinecho disclaims any responsibility for any harm resulting from your use of non-Kinecho applications, data sets, or websites.
NOTICES. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Kinecho by postal mail to the address for Kinecho listed on the Platform. Kinecho may provide you with any notices required or allowed under this Agreement by sending you an email to any email address you provide to Kinecho or by posting on the Platform.
CLAIMS OF INFRINGEMENT. Kinecho respects your copyrights and other intellectual property rights and those of other third parties. If you believe in good faith that your copyrighted work has been reproduced on the Platform without your authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by mail to:
Attn: Copyright Agent
1765 Krameria St.
Denver CO 80220
Please provide the following information to the Copyright Agent: (1) the identity of the allegedly infringing work; (2) your name, address, daytime phone number, and email address, if available; (3) a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) 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; and (5) your electronic or physical signature. Kinecho will take whatever action, in its sole discretion, it deems appropriate, including the removing the allegedly infringing work from the Platform.
19. REPRESENTATIONS AND WARRANTIES.
Mutual. Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement.
Compliance with Laws. You represent and warrant to Kinecho that your use of and access to the Platform, including any Content, Submissions, or Services, will comply with all applicable laws, rules, and regulations and will not cause Kinecho itself or any other third party to violate any applicable laws, rules, or regulations. Kinecho is not responsible for notifying you of any such laws, rules, or regulations, enabling your compliance, or for your failure to comply.
No Warranties; Disclaimer. YOUR USE OF THE PLATFORM, SERVICES, SUBMISSIONS, THIRD PARTY SUBMISSIONS, AND CONTENT IS AT YOUR SOLE RISK. THE PLATFORM, CONTENT, SUBMISSIONS, THIRD PARTY SUBMISSIONS, AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." KINECHO AND ITS THIRD PARTY PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF THE PLATFORM, CONTENT, SERVICES, SUBMISSIONS, THIRD PARTY SUBMISSIONS, OR THE THIRD PARTY PRODUCTS OR SERVICES AVAILABLE ON THE PLATFORM, AND DO NOT ENDORSE THE THIRD PARTY PRODUCTS AND SERVICES, VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE CONTENT, SUBMISSIONS, THIRD PARTY SUBMISSIONS, OR OTHER DATA, INFORMATION OR THIRD PARTY CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM. KINECHO AND ITS THIRD PARTY PROVIDERS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, CONTENT, SERVICES, SUBMISSIONS, THIRD PARTY SUBMISSIONS, OR THIRD PARTY PRODUCTS OR SERVICES, AND OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, COMPLETENESS, ACCURACY, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KINECHO, ITS EMPLOYEES, OR THIRD PARTY PROVIDERS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION. KINECHO AND ITS THIRD PARTY PROVIDERS MAKE NO WARRANTY THAT: (a) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (b) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY CONTENT, SUBMISSIONS, THIRD PARTY SUBMISSIONS, OR SERVICES OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS; OR (e) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED. THE FOREGOING PROVISIONS WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IF YOU HAVE PURCHASED AN ACCOUNT FOR THE DURATION OF YOUR NATURAL LIFE, AND IF, FOR ANY REASON OTHER THAN YOUR BREACH OF THIS AGREMENT, KINECHO IS UNABLE TO PROVIDE THE PLATFORM OR SERVICE TO YOU, THEN KINECHO’S SOLE OBLIGATION, AND YOUR SOLE REMEDY, IS TO PROVIDE YOU WITH A FILE WITH YOUR SUBMISSIONS.
20. INDEMNITY. You hereby agree to indemnify, defend, and hold harmless Kinecho and its officers, directors, shareholders, affiliates, employees, agents, service providers, contractors, assigns, users, customers, providers, licensees, and successors in interest ("Indemnified Parties") from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation (“Claim”) against any Indemnified Party arising in any manner from: (1) your access to or use of the Platform, including any Content, Third Party Submissions, or Services; (2) Submissions, Submissions Dashboard, or any access to or use thereof, and including without limitation and viruses or harmful code in such Submissions; (3) any access to or use of Submissions or Submissions Dashboard by any other Users or third party; (4) your collection, use, and disclosure of any Content; and (5) your breach of any provision of this Agreement, including any representation or warranty. Kinecho will provide you with notice of any such Claim, and Kinecho will have the right to participate in the defense of any such Claim at its expense.
21. LIMITATION OF LIABILITY. KINECHO AND ITS THIRD PARTY PROVIDERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE ACCESS TO OR USE OF THE PLATFORM, CONTENT, THIRD PARTY SUBMISSIONS, OR SERVICES, EVEN IF KINECHO OR ITS THIRD PARTY PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF SUBMISSIONS, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS OR SERVICES. KINECHO’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES OR CONTENT PROVIDED UNDER THIS AGREEMENT OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU RESULTING FROM YOUR USE OF THE PLATFORM. YOU AGREE THAT KINECHO WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, KINECHO’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
22. MANDATORY DISPUTE RESOLUTION/CLASS-ARBITRATION WAIVER.
Generally. BY ENTERING THIS AGREEMENT, YOU AND KINECHO AGREE TO ARBITRATE ANY AND ALL CLAIMS, CONTROVERSIES OR DISPUTES OF ANY KIND AGAINST EACH OTHER. YOU AND KINECHO WAIVE THE RIGHT TO A TRIAL BY JURY AND ALSO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION. ACCORDINGLY, YOU AND KINECHO AGREE THAT NEITHER KINECHO NOR YOU WILL JOIN ANY CLAIM WITH THE CLAIM(S) OF ANY OTHER PERSON OR ENTITY WHETHER IN A LAWSUIT, ARBITRATION, OR ANY OTHER PROCEEDING. YOU AND KINECHO AGREE THAT NO CLAIMS WILL BE ASSERTED IN ANY REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE, THAT NO CLAIMS WILL BE RESOLVED ON A CLASS-WIDE OR COLLECTIVE BASIS, THAT NO ARBITRATOR OR ARBITRATION FORUM WILL HAVE JURISDICTION TO ADJUDICATE ANY CLAIMS ON A CLASS-WIDE OR COLLECTIVE BASIS, AND THAT NO RULES FOR CLASS-WIDE OR COLLECTIVE ARBITRATION WILL APPLY. THUS YOU AND KINECHO MAY ONLY BRING CLAIMS AGAINST ONE ANOTHER IN AN INDIVIDUAL CAPACITY, NOT AS A NAMED PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE CAPACITY. This agreement to arbitrate is intended to be broadly interpreted and applies to all claims regardless of whether they are based on conduct that occurred prior to, during or after the term of the Agreement and regardless of whether the claims are based in contract, tort, statute, fraud, misrepresentation or any other legal theory. References to the terms “Kinecho” “you,” “your,” “Party,” or “Parties” include all respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns. This arbitration provision survives termination of this Agreement. The sole exception to this arbitration agreement is that either You or Kinecho may, in the alternative, bring claims in a small claims court having competent jurisdiction.
Arbitration Procedure. A party who intends to seek arbitration must first send to the other party, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Kinecho should be addressed to: Kinecho Management Team. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Kinecho and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Kinecho may commence an arbitration proceeding pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement. A single neutral arbitrator will be selected by agreement of the parties. If an agreement cannot be reached, a single neutral arbitrator will be selected according to the AAA’s procedures and the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), and the claims will be resolved pursuant to this Mandatory Dispute Resolution/Class-Arbitration Waiver provision and the AAA Rules in effect when the claim is filed. The AAA Rules are available online at www.adr.org/consumer_arbitration and can also be obtained by calling the AAA at 1-800-778-7879. AAA will administer the arbitration, and you may file a demand for arbitration at www.adr.org. Unless Kinecho and you agree otherwise, any in-person arbitration hearings will occur within 100 miles of your address, with the preference that it occur in the county/parish of your address. If a claim is for $10,000 or less, the party submitting the claim may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator (“desk arbitration”), through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. The arbitrator conducting a desk arbitration or telephonic hearing may be located anywhere in the United States. If a claim exceeds $10,000, the AAA Rules govern where a hearing occurs. The arbitration will be confidential, but either party may notify any governmental authority of the claim.
Arbitrator’s Authority. The arbitrator is bound by the terms of this Agreement, and the arbitrator’s authority is limited to claims between you and Kinecho. The arbitrator has no authority to join or consolidate claims unless the parties agree otherwise in writing. The arbitrator, not any court or agency, has exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator may award all relief or remedies available in court, including declaratory and injunctive relief, but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual’s claim.
Costs of Arbitration. Except as otherwise provided for herein, Kinecho will: (a) pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with this arbitration provision and (b) will not seek an award of its attorney’s fees. If the arbitrator finds that the substance of the claim or the relief sought is frivolous, however, then the AAA Rules will govern the payment of all fees, and Kinecho may seek an award of its reasonable attorney’s fees. Furthermore, if you initiate an arbitration seeking more than $75,000 in damages, the AAA Rules govern the payment of all fees. You are responsible for all additional costs that you incur in the arbitration, including but not limited to, fees for attorneys or expert witnesses. Notwithstanding anything to the contrary in this provision, Kinecho will pay all fees and costs that it is required to pay under the law.
Changes. Notwithstanding any provision in this Agreement to the contrary, you agree that if Kinecho makes any future change to this Dispute Resolution Provision (other than a change to the Notice address listed above) during the term of this Agreement, you may reject any such change by sending Kinecho written notice within 30 days of the change to the Notice address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision. Changes made to this provision after either party has submitted a Notice will not affect the pending dispute.
Governing Law, Enforcement, and Waivers. The Federal Arbitration Act, and not state law, applies to this Mandatory Dispute Resolution/Class-Arbitration Waiver provision and governs all questions of whether a claim is subject to arbitration. If any portion of the Mandatory Dispute Resolution/Class-Arbitration Waiver provision is determined to be invalid or unenforceable, the remainder of the provision remains in full force and effect.
23. GOVERNING LAW. Subject to Section 22, the interpretation of the rights and obligations of the parties under this Agreement, and any negotiations, arbitrations, or other legal proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado.
24. FORCE MAJEURE. Kinecho shall not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any acts of god, fire, flood, war, changing economic conditions, changing technology, or any other cause which is beyond the reasonable control of Kinecho. We can’t guarantee that the file formats or file types of your Submissions will be available or readable if you wish to view, modify, or download your Submissions.
25. MISCELLANEOUS. Except as expressly set forth in this Agreement, this Agreement will exclusively govern your access to and use of the Platform and constitutes the entire agreement between Kinecho and you concerning the subject matter hereof. This Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. Except as expressly set forth in this Agreement, this Agreement may be modified by a written amendment signed by authorized executives of the parties. All waivers under this Agreement must be in writing. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. With Kinecho’s consent, you may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions. Kinecho may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The parties hereto are independent parties, not agents, employees, or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software, and other equipment as may be necessary for you to connect to, access, and use the Platform.