1. Description of the Kinside Services.
Through the Kinside Services, we strive to provide optimal information for working parents and legal guardians so they can make the best childcare decisions for their family. By gathering such information, we aim to lighten the load that parents and legal guardians juggle every day. We also provide a platform for childcare providers and centers to connect with parents and legal guardians seeking their services. The Kinside Services may include Concierge Services, tools, information, and other services for childcare needs of working parents and legal guardians. We provide the Kinside Services to parents and legal guardians directly or through employers as a childcare benefit to its employees. The Kinside Services provided to employers are subject to the terms and conditions of a separate services agreement. If you are a User who is eligible for concierge services, based on the information provided through the Kinside Services, a representative of Kinside’s Concierge Team will provide concierge services to you that may include but are not limited to (i) searching within the Kinside childcare providers and centers database for and suggesting potential licensed daycares, preschools, childcare or providers; (ii) calling and asking for availability at a childcare center and/or provider on behalf of the parent; and (iii) providing general guidance, resources, and Content related to childcare (collectively, the “Concierge Services”). The Kinside Services are currently available in the continental U.S. only.
The Kinside Services are not matching or placement services and do not provide, place, or seek to confirm any placements in a childcare center or engagement of a childcare provider for any of its Users. Parents or legal guardians are solely responsible for determining which childcare centers or providers to follow up with for additional information, enrolling a child in a childcare center or engaging a childcare provider, and confirming proper licensing, researching and deciding suitability of the center or provider, conducting any reference or background checks, and similar assessment and decision making activities. Similarly, if you are a childcare center or provider, you are solely responsible for all enrollment related decisions. Unless otherwise stated, Kinside makes no representations or warranties about any childcare centers or providers suggested in connection with the Kinside Services or any parents or legal guardians who are part of the Kinside Services, and shall have no liability for the availability or actions (whether online or offline) of any childcare centers, providers, parents, legal guardians or other Users.
2. Use of the Kinside Services.
2.1 Kinside Services. The Kinside Services are protected by copyright laws throughout the world. Subject to the Agreement, Kinside grants you a limited license to reproduce portions of the Kinside Services for the sole purpose of using the Kinside Services for your personal or internal business purposes. Unless otherwise specified by Kinside in a separate license, your right to use any and all Kinside Services is subject to the Agreement.
2.2 Updates. You understand that the Kinside Services are evolving. You acknowledge and agree that Kinside may update the Kinside Services with or without notifying you. You may need to update third-party software from time to time in order to use the Kinside Services.
2.3 Certain Restrictions. You may use the Kinside Services only for lawful purposes and in accordance with this Agreement. We are under no obligation to enforce the Agreement on your behalf against another User. We encourage you to let us know if you believe another User has violated the Agreement or otherwise engaged in prohibited or illegal conduct.
The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Kinside Services or any portion of the Kinside Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other services (including images, text, page layout or form) of Kinside; (c) you shall not use any metatags or other “hidden text” using Kinside’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Kinside Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Kinside Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Kinside Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Kinside Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Kinside Services; and (h) you shall not engage in or attempt to engage in, any potentially harmful acts that are directed against the Kinside Services, including but not limited to violating or attempting to violate any security features of the Kinside Services, introducing viruses, worms, or similar harmful code into the Kinside Services, or interfering or attempting to interfere with use of the Kinside Services by any other User, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Kinside Services. You agree not to, and will not assist, encourage, or enable others to use the Kinside Services for the foregoing purposes. Any unauthorized use of any Kinside Service terminates the licenses granted by Kinside pursuant to the Agreement.
3. Accessing the Kinside Services.
We grant you permission to access and use the Kinside Services subject to the restrictions set out in this Agreement. It is a condition of your use of the Kinside Services that the information you provide is correct, current, and complete. Your use of the Kinside Services is at your own risk. You are responsible for making all arrangements necessary for you to have access to the Kinside Services. We may close your Account or suspend your ability to use certain portions of the Kinside Services for any or no reason, and without notice or liability of any kind.
3.1 Application License. Subject to your compliance with the Agreement, Kinside grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the application on a single mobile device or computer that you own or control and to run such copy of the application solely for your own personal or internal business purposes. Furthermore, with respect to any application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the application on a shared basis within your designated family group.
4. Account Registration and Account Security.
Once you have an Account, you are responsible for all activities that occur in connection with your Account. You will treat as confidential your Account access credentials and will not disclose it to any third-party. You agree to immediately notify us if you have any reason to believe that your Account credentials have been compromised or if there is any unauthorized use of your Account or password, or any other breach of security. We ask that you use particular caution when accessing your profile from a public or shared computer, or when using your Account in a public space, such as a park or cafe or public library, so that others are not able to view or record your access credentials or other personal information.
You may not impersonate someone else to create an Account, create or use an Account for anyone other than yourself, permit anyone else to use your Account, or provide personal information for purposes of Account registration other than your own. In order to ensure we can protect our community of Users and properly administer the Kinside Services, we have the right to disable or close any User’s Account at any time and for any or no reason. You agree not to create an Account or use the Kinside Services if you have been previously removed by Kinside, or if you have been previously banned from any Kinside Services.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Kinside.
5. Kinside Message Service.
The Kinside mobile message service (the “Kinside Message Service”) is operated by Salesforce Marketing Cloud. Your use of the Kinside Message Service constitutes your agreement to these terms and conditions. We may modify or cancel the Kinside Message Service or any of its features without notice.
By consenting to Kinside Message Service, you agree to receive recurring SMS/text messages with service-related messages, including search updates, availability update requests, and information (e.g., tour updates, tour reminders, match updates etc.) from Kinside via text messages through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Kinside Services, updates concerning new and existing features on the Kinside Services, communications concerning promotions run by us or our third-party partners, and news concerning the Kinside and industry developments.
You understand that you do not have to sign up for this program in order to use Kinside Message Service, and your consent is not a condition of using Kinside. Your participation in this program is completely voluntary.
We do not charge for the Kinside Message Service. You are solely responsible for any and all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. By enrolling in the Kinside Message Service, you authorize us to send recurring SMS and MMS mobile messages to the telephone number you specify, and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Kinside Message Service may include notifications, administrative updates, and marketing notices, and may be transmitted using an automatic telephone dialing system (“ATDS”) or other automated systems for the selection or dialing of telephone numbers. Your consent to receive mobile messages via an ATDS or other automated system is not required (directly or indirectly) as a condition of purchasing any property, goods or services. Message frequency varies. Standard message and data rates may apply from your wireless provider. Check your mobile plan and contact your wireless provider for details.
You may opt-out of the Kinside Message Service at any time. Text the single keyword command ‘STOP’ to 54094. Click the unsubscribe link in the text message sent from the Kinside Message Service to cancel. You’ll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Kinside mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For Kinside Message Service support or assistance, text ‘HELP’ to 54094 or email firstname.lastname@example.org.
We may change any short code or telephone number we use to operate the Kinside Message Service at any time and will notify you of these changes. You acknowledge that any messages, including any ‘STOP’ or ‘HELP’ requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
We and the wireless carriers supported by the Kinside Message Service are not liable for failed, delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the Kinside Message Service with your new number.
To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Kinside Message Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Kinside Message Service.
5.1 Supported Carriers. Supported carriers may change from time to time, but currently include AT&T, T-Mobile, Verizon Wireless, Sprint, Nextel, Boost, Alltel, US Cellular, Cellular One, and MetroPCS, among others.
6. Prohibited Uses.
You may use the Kinside Services only for lawful purposes and in accordance with this Agreement. We are under no obligation to enforce the Agreement on your behalf against another User. We encourage you to let us know if you believe another User has violated this Agreement or otherwise engaged in prohibited or illegal conduct.
You agree not to, and will not assist, encourage, or enable others to use the Kinside Services:
- For any commercial purpose, except as expressly permitted under this Agreement;
- For competitive analysis or to build competitive products;
- To violate any applicable national, regional, federal, state, local, or international law or regulation;
- To create, send, knowingly receive, display, transmit, upload, download, use, or reuse any material which:
- Is, or contains any material which is, defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
- Infringes any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person;
- Is likely to deceive or confuse any person.
- In violation of this Agreement or any other rules or policies posted by us on the Kinside Services.
- To record, process, harvest, collect, or mine information about other Users;
- To access, retrieve, or index any portion of the Kinside Services for purposes of constructing or populating a searchable database;
- To use the Kinside Services to violate the security of any computer network, crack passwords or security encryption codes;
- To attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Kinside Services, the server on which the Kinside Services is stored, or any server, computer, or database connected to the Kinside Services;
- To attack the Kinside Services via a denial-of-service attack or a distributed denial-of-service attack; or
- To otherwise attempt to interfere with the proper working of the Kinside Services.
The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without the prior written consent of Kinside, which may be withheld in our sole discretion. We reserve the right to request additional information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion. Any additional remedies or accommodations may be provided in our sole discretion.
6.1 Interactions with Other Users. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact, whether or not they are a Registered User; provided, however, that Kinside reserves the right, but has no obligation, to intercede in such disputes. You agree that Kinside will not be responsible for any liability incurred as the result of such interactions. You agree that you are solely responsible for your conduct in connection with the Kinside Services. You agree that you will abide by this Agreement and will not (and will not attempt to): (a) use the Kinside Services to send messages containing harassment, violence, threats, hate speech, suicide or self-harm, bullying, abuse, spam, illegal activity, obscenity, pornography, defamation, libel, and/or fraud; or (b) upload content that promotes suicide or self-harm, incites hate or violence against others, degrades or doxes another individual, depicts minors in sexually suggestive situations, or is otherwise illegal in the United States.
7. Payments and Fees.
7.1 Payments to Childcare Centers/Providers. Users of the Kinside Services contract directly with other Users for childcare services. Kinside is not a party to any contracts for services between Users; however, Kinside does allow parents and legal guardians to make payments, and childcare centers and childcare providers to receive payments, through the Kinside Services, subject to the payment terms described above. In order to facilitate certain payments, Users may need to verify their Account and authorize us to debit or credit their Account. Such authorization must be given in the form and manner prescribed by us based on prevalent regulations.
7.2 Fees to Kinside and Other Charges. In order to utilize certain Kinside Services or product offerings, Users may be required to pay Kinside either a recurring subscription, one-time, or other fees. In addition, the User is responsible for any federal, state or local sales taxes associated with the Kinside Services or product offerings purchased. Except as set forth in the Agreement, all fees for the Kinside Service are non-refundable. No contract will exist between you and Kinside for the Kinside Services until Kinside accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
Kinside also reserves the right to charge a convenience fee on payments made to childcare centers, childcare providers. Such fee will be displayed on the applicable page prior to completing the transaction.
The payments required for the Kinside Services under this Agreement do not include any Sales Tax that may be due in connection with the Kinside Services provided under this Agreement. If Kinside determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Kinside shall collect such Sales Tax in addition to the payments required for a subscription under this Agreement. If any services or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Kinside, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Kinside for any liability or expense Kinside may incur in connection with such Sales Taxes. Upon Kinside’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8. Kinside Content and IP Ownership.
We own all rights, title, and interest in the Kinside Services (including but not limited to, any computer code, concepts, artwork, moral rights, documentation, and Kinside software) and all of our trademarks, logos, branding, and any other Content that we create in connection with the Kinside Services (“Kinside Content”), including proprietary rights of every kind and nature however denominated throughout the world, registered or unregistered, associated with such Kinside Content and the Kinside Services (collectively, “Kinside IP”). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Kinside Services. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Kinside IP are retained by us.
We are not responsible or liable to any third-party for the content or accuracy of any materials posted by you or any other User of the Kinside Services. You understand that when using the Kinside Services, you will be exposed to text, images, photos, audio, video, location data, and all other forms of data or communication (“Content”) from a variety of sources, and that Kinside is not responsible for the usefulness, or intellectual property rights of or relating to such Content. We do not endorse any Content made available through the Kinside Services by any User or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with such Content.
9. Your Content and Publicity.
9.1 Responsibility for Your Content. Certain types of Users may be able to contribute Content or information within or through the Kinside Services. You understand and acknowledge that you alone are responsible for Content that you submit or transmit to, through, or in connection with the Kinside Services that you publicly display or displayed in your Account (collectively, “Your Content”), and you, not Kinside, assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, reliability, appropriateness, or any disclosure by you of information in Your Content that makes you or anyone else personally identifiable. You represent that you own or have the necessary rights, consents, and permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Kinside. You represent and warrant that Your Content does not violate this Agreement. The Kinside Services may include certain functionalities that allow you to send messages or otherwise communicate with other Users. Please use your discretion and judgment in sharing any personal or sensitive information via such messages. You agree that you alone are responsible for the information and content you share via such messages.
9.3 Data Sharing. You reserves and retain all right, title and interest in and to the data that you submits to the Kinside Services (“User Data”) and is the sole and exclusive owner of all intellectual property rights relating thereto. You are solely responsible for any and all obligations with respect to the accuracy, quality and legality of all User Data. You hereby consent and authorize Kinside to use and share any information you provide to the Kinside Services within Kinside’s services for its internal business purposes.
9.4 Publicity. Additionally, you also grant Kinside the right to use, reproduce and publish your name, description of childcare services provided or received, photograph, voice, statements and testimonials in connection with providing and promoting the Kinside Services (“Publicity Materials”). You will have the right to approve such Publicity Materials before they are published.
10. Links to Third-Party Services.
From time to time, the Kinside Services may be integrated, interact or partner with third party applications, links, websites, and services (“Third-Party Services”). These Third-Party Services may have their own terms and conditions of use and privacy policies. Your use of these Third-Party Services will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that Kinside does not endorse nor is not responsible, nor liable for the conduct, services, features, or content of any Third-Party Services or for any transaction you may enter into with the provider of any such Third-Party Services, nor does Kinside warrant the compatibility or continuing compatibility of the Third-Party Services with the Kinside Services. If you decide to access or purchase any of the Third-Party Services linked to the Kinside Services, you do so entirely at your own risk. We will not warn you that you have left the Kinside Services. When you leave the Kinside Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
10.1 Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- 10.1.1You acknowledge and agree that (i) the Agreement is concluded between you and Kinside only, and not Apple, and (ii) Kinside, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- 10.1.2You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- 10.1.3In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Kinside and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Kinside.
- 10.1.4You and Kinside acknowledge that, as between Kinside and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- 10.1.5You and Kinside acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Kinside and Apple, Kinside, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
- 10.1.6You and Kinside acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- 10.1.7Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
11. Disclaimer of Warranties.
KINSIDE IS NOT RESPONSIBLE FOR THE PERFORMANCE OR COMMUNICATIONS OF USERS (INCLUDING CHILDCARE CENTERS, CHILDCARE PROVIDERS, PARENTS, AND LEGAL GUARDIANS), NOR DOES KINSIDE HAVE CONTROL OVER THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER OF SERVICES PROVIDED BY CHILDCARE CENTERS/PROVIDERS. KINSIDE IS NOT RESPONSIBLE FOR THE INTEGRITY, RESPONSIBILITY, COMPETENCE, QUALIFICATIONS, OR ANY OF THE ACTIONS OR OMISSIONS WHATSOEVER OF ANY USERS (INCLUDING CHILDCARE CENTERS/PROVIDERS AND PARENTS/LEGAL GUARDIANS). KINSIDE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, OR ACCURACY OF THE SERVICES PROVIDED BY, OR THE COMMUNICATIONS OF OR BETWEEN, USERS IDENTIFIED THROUGH THE KINSIDE SERVICES, WHETHER IN PUBLIC OR PRIVATE, VIA ON- OR OFF-LINE INTERACTIONS, OR OTHERWISE.
THE KINSIDE PARTIES HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, IMPLIED WARRANTIES, NON-INFRINGEMENT, QUALITY OR FITNESS FOR PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION OR CODE. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE KINSIDE SERVICES IS AT YOUR SOLE RISK AND THE KINSIDE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE KINSIDE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE KINSIDE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE KINSIDE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE KINSIDE SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE KINSIDE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE KINSIDE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. KINSIDE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, ACCURACY, COMPLETENESS, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF KINSIDE SERVICES. THIS INCLUDES INFORMATION REGARDING THE AMOUNT AND QUALITY OF RESOURCES PROVIDED BY CHILDCARE PROVIDERS AND/OR CENTERS. KINSIDE DOES NOT GUARANTEE THAT YOUR REQUESTS WILL BE FULFILLED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KINSIDE OR THROUGH THE KINSIDE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. (1) CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY” AND (2) NEW JERSEY RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF THE TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT (X) SECTIONS 15, WHICH STATES, AMONG OTHER THINGS, THAT “NO SELLERS…SHALL IN THE COURSE OF HIS BUSINESS OFFER TO ANY CONSUMER OR PROSPECTIVE CONSUMER OR ENTER INTO ANY WRITTEN CONSUMER CONTRACT OR GIVE OR DISPLAY ANY WRITTEN CONSUMER WARRANTY, NOTICE OR SIGN…WHICH INCLUDES ANY PROVISION THAT VIOLATES ANY CLEARLY ESTABLISHED LEGAL RIGHT OF A CONSUMER OR RESPONSIBILITY OF A SELLER…” AND (X) SECTION 16, WHICH STATES, AMONG OTHER THINGS, THAT “…NO CONSUMER CONTRACT, NOTICE OR SIGN SHALL STATE THAT ANY OF ITS PROVISIONS IS OR MAY BE VOID, UNENFORCEABLE OR INAPPLICABLE IN SOME JURISDICTIONS WITHOUT SPECIFYING WHICH PROVISIONS ARE OR ARE NOT VOID, UNENFORCEABLE OR INAPPLICABLE WITHIN THE STATE OF NEW JERSEY…”. YOU HEREBY WAIVE, AS APPLICABLE, THESE SECTIONS OF THE CALIFORNIA CIVIL CODE AND NEW JERSEY TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISIONS.
11.1 Beta Services.
FROM TIME TO TIME, KINSIDE MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT KINSIDE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability For Childcare Centers and Providers. THE KINSIDE SERVICES MERELY ACTS AS A RESOURCE FOR BUSY PARENTS AND/OR LEGAL GUARDIANS TO CONNECT WITH THE LISTED CHILDCARE PROVIDERS, AND DOES NOT DIRECTLY PROVIDE SUCH SERVICES TO THESE PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE KINSIDE PARTIES ARE NOT LIABLE (TO THE EXTENT PERMITTED BY LAW) NOR DOES KINSIDE SUPERVISE, SCOPE, DIRECT, CONTROL, OR MONITOR THE SERVICES PROVIED BY A CHILCARE CENTER OR PRIVER, AND YOU AGREE NOT TO SEEK TO HOLD THE KINSIDE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, OTHER USERS, AND CHILDCARE PROVIDERS AND/OR CENTERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 No Liability for Parents and Legal Guardians. KINSIDE ALSO EXPRESSLY DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ANY RESPONSIBILITY AND LIABILITY FOR THE ACTS OR OMISSIONS OF ANY PARENTS, LEGAL GUARDIANS OR OTHER USERS OF THE KINSIDE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE KINSIDE SERVICES. YOU UNDERSTAND THAT KINSIDE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE KINSIDE SERVICES. KINSIDE MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, QUALITY, OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE KINSIDE SERVICES. ANY CONTENT RELIED UPON BY YOU IS AT YOUR OWN RISK AND YOU AGREE THAT KINSIDE IS NOT LIABLE FOR ANY INCORRECT OR MISLEADING INFORMATION POSTED BY OTHER USERS (E.G., CHILDCARE PROVIDERS, CHILDCARE CENTERS), INCLUDING INFORMATION REGARDING THE ADDRESS AND OPERATING HOURS OF CHILDCARE PROVIDERS, OTHER THIRD-PARTY SERVICE PROVIDERS NOT LISTED IN THE KINSIDE SERVICES, AND CHILDCARE AVAILABILITY. THE KINSIDE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.
11.4 No Guarantees of Service or Availability of Childcare.
11.4.1 Regarding the Kinside Services. ALTHOUGH WE HOPE TO MAKE THE KINSIDE SERVICES AVAILABLE AT ALL TIMES IN THE FUTURE, THERE MAY BE TIMES WHEN WE NEED TO DISABLE THE KINSIDE SERVICES EITHER TEMPORARILY OR PERMANENTLY. THE KINSIDE SERVICES MAY BE MODIFIED, UPDATED, INTERRUPTED, SUSPENDED, OR DISCONTINUED AT ANY TIME WITHOUT NOTICE OR LIABILITY. KEEP THIS IN MIND AS KINSIDE WILL NOT BE LIABLE IF ALL OR ANY PART OF THE KINSIDE SERVICES IS UNAVAILABLE AT ANY TIME, FOR ANY PERIOD OF TIME. ALSO, FROM TIME TO TIME, WE MAY RESTRICT ACCESS TO SOME PARTS OF THE KINSIDE SERVICES, OR THE ENTIRE KINSIDE SERVICES, TO USERS, INCLUDING REGISTERED USERS. WE CANNOT AND DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE DEVICES YOU USE TO ACCESS OR USE THE KINSIDE SERVICES, INCLUDING WITH RESPECT TO DEVICE COMPATIBILITY.
11.4.2 Regarding Childcare Centers.
WE USE BEST EFFORTS AND TYPICALLY ARE ABLE TO IDENTIFY POTENTIAL CHILDCARE CENTERS IN MOST LOCATIONS. HOWEVER, WE CANNOT GUARANTEE AVAILABILITY IN ANY GIVEN CHILDCARE CENTER AT A PARTICULAR TIME DUE TO MARKET CONDITIONS OUTSIDE OF OUR CONTROL OR SUGGESTED CHILDCARE CENTERS THAT MEET ALL OF YOUR IDENTIFIED NEEDS. FURTHER, THERE MAY BE LIMITED SITUATIONS WHERE WE ARE UNABLE TO SUGGEST POTENTIAL CHILDCARE CENTERS OR PROVIDERS DUE TO OTHER CIRCUMSTANCES OUTSIDE OF OUR CONTROL.
11.4.3 Third-Party Materials.
As a part of the Kinside Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Kinside to monitor such materials and that you access these materials at your own risk.
12. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE KINSIDE PARTIES (AS DEFINED BELOW), BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE KINSIDE SERVICES, WHETHER OR NOT KINSIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS, WHETHER ONLINE OR OFFLINE, WITH OTHER USERS OF THE KINSIDE SERVICES, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE KINSIDE SERVICES. TO THE FULLEST EXTENT PROVIDED BY LAW, THE KINSIDE PARTIES’ AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE KINSIDE SERVICES OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH USERS OF THE KINSIDE SERVICES, EXCEED (I) THE AMOUNTS YOU HAVE PAID OR OPTED TO PAY VIA THE KINSIDE SERVICES AS A PARENT OR LEGAL GUARDIAN, IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, (II) IF YOU ARE A CHILDCARE PROVIDER, THE AMOUNTS PAID TO YOU VIA THE KINSIDE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, AND (III) IF NO SUCH PAYMENTS HAVE BEEN MADE, THE AMOUNT OF ONE THOUSAND DOLLARS ($1,000.00). THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A KINSIDE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A KINSIDE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A KINSIDE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KINSIDE AND YOU.
You shall indemnify and hold harmless Kinside, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers (collectively, the “Kinside Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from: (i) your violation of this Agreement or your use of the Kinside Services, (ii) materials and Content you submit, post or transmit through the Kinside Services, (iii) any relationship or agreement formed or any interaction with, a childcare center, childcare provider, parent, legal guardian or other User, pursuant to information obtained through the Kinside Services, (iv) your violation of any applicable laws, rules or regulation, or (v) your use of or inability to use the Kinside Services. Kinside reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Kinside in asserting any available defenses. This provision does not require you to indemnify any of the Kinside Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the application or any Kinside Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Kinside Services.
14. Monitoring, Enforcement, and Investigations.
Kinside reserves the right to: (a) monitor or review the Kinside Services and Content, including Your Content, at any time; (b) investigate possible violations by you of any provision of the Agreement; (c) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (d) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that Your Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of Users of the Kinside Services or the public, or could create liability for Kinside; (e) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (f) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Kinside Services; and/or (g) terminate or suspend your access to all or part of the Kinside Services for any or no reason, including without limitation, any violation of this Agreement.
If Kinside becomes aware of any possible violations by you of the Agreement, Kinside reserves the right to investigate such violations. If, as a result of the investigation, Kinside believes that criminal activity has occurred, Kinside reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Kinside is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Kinside Services, including Your Content, in Kinside’s possession in connection with your use of the Kinside Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Kinside, its Registered Users or the public, and all enforcement or other government officials, as Kinside in its sole discretion believes to be necessary or appropriate.
15. Term and Termination.
15.1 Term. The Agreement commences on the earlier to occur of (a) the date you first used the Kinside Services; or (b) the date when you accept the Agreement (as described in the preamble above) and remain in full force and effect while you use the Kinside Services, unless terminated earlier in accordance with the Agreement.
15.2 Termination of Services. If you have materially breached any provision of the Agreement, or if Kinside is required to do so by law (e.g., where the provision of the Kinside Services is, or becomes, unlawful), Kinside has the right to, immediately and without notice, suspend or terminate any Kinside Services provided to you. You agree that all terminations for cause shall be made in Kinside’s sole discretion and that Kinside shall not be liable to you or any third party for any termination of your Account.
15.3 Effect of Termination. Termination of any Kinside Service includes removal of access to such Kinside Service and barring of further use of the Kinside Service. Termination of all Kinside Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Kinside Service, your right to use such Kinside Service will automatically terminate immediately. You understand that any termination of the Kinside Services may involve deletion of Your Content associated therewith from our live databases. Kinside will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of the Kinside Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
16. Governing Law.
This Agreement shall be governed by the laws of the State of California, without respect to its conflict of laws principles. You agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles County, California.
17. Arbitration Agreement.
Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Kinside and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
17.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Kinside agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Kinside Services, any communications you receive, any products sold or distributed through the Kinside Services, or the Agreement and prior version of the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Kinside may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Kinside may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
17.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Kinside. If that occurs, Kinside is committed to working with you to reach a reasonable resolution. You and Kinside agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Kinside therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Kinside that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to email@example.com or regular mail to our offices located at 912 Cole Street, #323 San Francisco, CA. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple Users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
17.3 Waiver of Jury Trial. YOU AND KINSIDE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Kinside are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.4 Waiver of Class and Other Non-Individualized Relief. YOU AND KINSIDE AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 17.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 17.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Kinside agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Los Angeles County in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Kinside from participating in a class-wide settlement of claims.
17.5 Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Kinside agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and otherwise agree, or the Batch Arbitration process discussed in subsection 17.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and Kinside agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
17.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 17.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
17.7 Authority of Arbitrator.The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
17.8 Attorneys’ Fees and Costs.
The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Kinside need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
17.9 Batch Arbitration.
To increase the efficiency of administration and resolution of arbitrations, you and Kinside agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Kinside by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Kinside. You and Kinside agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
17.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 912 Cole Street, #323 San Francisco, CA, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
17.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Kinside as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Notwithstanding any provision in the Agreement to the contrary, we agree that if Kinside makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Kinside at: 912 Cole Street, #323 San Francisco, CA, your continued use of the Kinside Services, including the acceptance of products and services offered on or through the Kinside Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Kinside Services, any communications you receive, any products sold or distributed through the Kinside Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Kinside will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
18. General Terms.
All feedback, comments, requests for technical support, and other communications relating to the Kinside Services should be directed to: firstname.lastname@example.org. By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third-parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development that is owned by us, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Kinside and its Users any claims and assertions of any moral rights contained in such Feedback.
You may provide such Feedback by contacting us via email at email@example.com or by mailing us at the below address:
912 Cole Street, #323
San Francisco, CA