Last Update: June 14, 2019
THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE OR, IF YOU ARE BETWEEN THE AGES OF 13 AND 18, THAT YOU HAVE REVIEWED THESE TERMS WITH YOUR PARENT OR LEGAL GUARDIAN AND THAT YOU HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO AGREE TO THESE TERMS.
IF YOU ARE USING OUR SITE ON BEHALF OF ANY ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS ON SUCH ENTITY’S BEHALF AND THAT SUCH ENTITY AGREES TO BE RESPONSIBLE TO US IF YOU OR THAT ENTITY VIOLATE THESE TERMS.
GENERAL USE RESTRICTIONS
Certain information and content will be made available on and through our Site, including content, logos, graphics, and images (together, the “Materials”). Some of these items will be provided under the terms of a separate agreement between Kobai and you or your company. But for those Materials not otherwise covered by another which are purposely made available by Kobai for downloading from our Site, Kobai grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials for your personal or internal business use and provided that you (1) do not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying such Materials, (2) use such information only for your personal or internal business operations and do not copy or post such information on any networked computer or broadcast it in any media, (3) do not make any modifications to any such information or Materials, and (4) do not make any additional representations or warranties relating to such Materials.
Unless otherwise indicated, the Materials, including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such content, are the property of Kobai or our licensors and are protected by copyright, trademark and other laws of the United States and foreign countries. Except as may be expressly specified elsewhere in these Terms or otherwise agreed in writing by you and Kobai, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, or in any way exploit any of the Materials in any manner.
These limited licenses terminate automatically, without notice to you, if you breach any of these Terms. Upon termination of these limited licenses, you agree to immediately destroy any downloaded or printed Materials. Except as stated herein, you acknowledge that you have no right, title or interest in or to our Site or any Materials.`
OTHER KOBAI TERMS
These Terms do not alter in any way the terms or conditions of any other agreement you may have with Kobai for products, services or otherwise, including but not limited to any agreements you may have if you are an authorized Kobai developer.
Certain information and other content on our Site may be the material of third-party licensors and suppliers to Kobai (“Third-Party Content”). The Third-Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. Kobai has no responsibility or liability with respect to your access to or use of the Third Party Content, or any content or functionality contained in such Third Party Content, your rights to which are solely provided pursuant to a license between you and the provider of such Third Party Content. If you are not presented with a separate end user license agreement when you acquire Third Party Content, then you agree to only display the Third-Party Content on your computer solely for your personal or internal business use. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter, or enhance any of the Third-Party Content in any manner unless you have permission from the owner of the Third-Party Content. KOBAI DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LINKS TO THIRD-PARTY SITES
Our Site may be linked to other sites that are not Kobai sites. Kobai is providing these links to you only as a convenience, and Kobai is not responsible for such linked sites, including, without limitation, the content or links displayed on such sites. You will need to make your own independent judgment regarding your interaction with these sites.
You promise not to use our Site or Materials for any purpose that is unlawful or prohibited by these Terms. You agree to abide by all applicable local, state and national laws and regulations. When using our Site or Materials, you agree not to take any actions that are inappropriate or disruptive to the Site. Without limitation, you agree not to:
Incite, engage in, encourage, or promote any illegal activity, or any activity that violates these Terms, community standards or any other terms or policies provided by Kobai;
Include offensive, illegal, dangerous, gratuitously violent, or threatening content or activity which Kobai, in its sole discretion, deems objectionable;
Upload any personal information that you do not have authority or permission to upload;Upload any copyrighted or trademarked materials without the express permission from the owner;
Include any false or misleading information in any content, title, icon, description or screenshots or attempt to divert users or provide links to any other site that mimics or passes itself off as another app or service;
Use any robot, spider, scraper or other automated means to access our Site or to extract data which is not provided or authorized by Kobai; or
Take any action that (i) imposes an unreasonable or disproportionately large load on our infrastructure; (ii) circumvents or attempts to circumvent any filtering, security measures or other features designed to protect our Site; or (iii) obtains or attempts to obtain any materials, documents or information through any means not purposely made available through our Site.
This list of prohibitions provides examples and is not complete or exhaustive. Kobai may change the foregoing at any time and in its sole discretion by posting a change notice or new set of policies on our Site. Kobai reserves the right to suspend or terminate your access to our Site, with or without notice, for any action that Kobai determines is inappropriate or disruptive to the Site or to any other user of the Site. Kobai may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Kobai’s discretion, Kobai will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Site or on the Internet. These prohibitions do not require Kobai to monitor, police or remove any information or other materials submitted by you or any other user.
“Kobai” are trademarks of Kobai in the United States. Other trademarks, names, and logos on our Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on our Site, including Materials, services, site design, text, graphics, logos, images, and icons, as well as the arrangement thereof, are the sole property of Kobai. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
FEEDBACK AND SUBMISSIONS
Any feedback you provide at our Site shall be subject to the Terms of Kobai’s Submission Policy.
DISCLAIMER OF WARRANTIES
Your use of our Site and Materials is at your own risk. Neither the Materials nor the Third-Party Content have been verified or authenticated in whole or in part by Kobai, and they may include inaccuracies or typographical or other errors. Kobai does not warrant the accuracy or timeliness of the Materials or the Third-Party Content contained on our Site. Kobai has no liability for any errors or omissions in the Materials and/or the Third-Party Content, whether provided by Kobai or our licensors.
KOBAI, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, ANY MATERIALS, OR THIRD-PARTY CONTENT, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE AND/OR THE RESULTS OBTAINED FROM THE USE OF THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS AND THE THIRD-PARTY CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, MATERIALS, THIRD-PARTY CONTENT, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. KOBAI DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE, OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
LIMITATION OF LIABILITY
KOBAI SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIAL OR THIRD-PARTY CONTENT TO OR FROM THIS SITE OR FOR ANY INFORMATION, THIRD PARTY CONTENT, OBTAINED THROUGH OUR SITE OR OTHERWISE ARISING OUT OF THE USE OF OUR SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF KOBAI OR ANY OF ITS SUPPLIERS OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR SITE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. THIS SOLE AND EXCLUSIVE REMEDY IS SEPARATE AND INDEPENDENT OF ANY OTHER PROVISION THAT LIMITS KOBAI’S LIABILITY OR YOUR REMEDIES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL KOBAI’S AND/OR ITS SUPPLIERS OR LICENSORS TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE) EXCEED THE GREATER OF (A) THE AMOUNT YOU PAID TO USE OUR SITE AND MATERIALS IN THE TWELVE MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST KOBAI; OR (B) FIFTY DOLLARS (US$50.00). IN NO EVENT SHALL KOBAI BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF KOBAI KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
Kobai reserves the right to change, suspend, remove, discontinue or disable access to our Site or Materials or particular portions thereof, at any time and without notice. Kobai further reserves the right to terminate your access to our Site at any time, with or without cause and with or without notice, for any reason or no reason. In no event will Kobai be liable for the removal of or disabling of access to any portion or feature of the Materials or this Site. If you violate these Terms, or if you otherwise create risk or possible legal exposure for us, Kobai may terminate and/or suspend your access to this Site without notice.
COPYRIGHT AND TRADEMARK INFRINGEMENT
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, such as Kobai, being asked to remove content that allegedly violates someone’s copyright. While the DMCA itself only applies to copyrights, Kobai also extends its DMCA policy below to allegations of trademark infringement. As an online service provider under the DMCA, Kobai respects the intellectual property rights of others, and we ask you to do the same. Kobai may, in appropriate circumstances and at our discretion, terminate service and/or access to our Site for users who infringe the intellectual property rights of others. If you believe that there is content that appears on our Site which infringes a copyright or trademark, please provide Kobai’s designated agent the following information:A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;Identification of the copyrighted or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site;Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled on our Site, and information reasonably sufficient to permit Kobai to locate the material;Information reasonably sufficient to permit Kobai to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law; andA statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Kobai’s agent for notice of claims of copyright or trademark infringement on our Site can be reached as follows:
By mail: Kobai, Inc., 4305 Hacienda Drive, Suite 370, Pleasanton, CA 94588 (Att: General Counsel)
By e-mail: email@example.com
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing and may be subject to liability.
LOCAL LAWS AND EXPORT CONTROL
Kobai controls and operates our Site from its headquarters in the United States of America and the Materials and/or Third-Party Content may not be appropriate or legally available for use in other locations. If you access our Site outside the United States of America, you are responsible for following United States export laws and regulations, as well as any applicable local laws and regulations.
NOTICES AND COMMUNICATION
You acknowledge and agree that Kobai may preserve any transmittal or communication by you with Kobai through our Site or any service offered on or through our Site, and may also disclose such data if required to do so by law or Kobai determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of Kobai, its employees, users of, or visitors to our Site, and the public. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
DISPUTE RESOLUTION AND BINDING ARBITRATION
Definitions. As used in this Section, the terms “Kobai,” “we,” “us,” and “our” refer to Kobai, Inc., including its subsidiaries and agents; the terms “you” and “your” refer to you as an individual as well as other individuals you allow to access or use the Products, and any legal entity you control, work for, or represent when you access or use the Products. The word “Products” means your access to and/or use of any Kobai website, advertisement or promotion and any product, service, or software that you obtain from or through Kobai. The word “Claims” means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the Products. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
Informal Efforts to Resolve Dispute. If a dispute arises between you and Kobai, you should first attempt to resolve it by contacting us at legal@Kobai.com and including the details of your complaint and your contact information for a response. We will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.
Agreement to Arbitrate; Right to Opt Out. If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) you may assert Claims in a small claims court in the United States if your Claims meet the court’s jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party’s intellectual property rights.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD TO YOU ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND FORMS OF RELIEF AS A COURT COULD (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF AS WELL AS STATUTORY DAMAGES), AND MUST FOLLOW THE LAW AND TERMS OF THIS AGREEMENT AS A COURT WOULD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS AND PRIVATE ATTORNEY GENERAL ACTIONS ARE NOT PERMITTED.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY KOBAI IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THIS AGREEMENT BY MAILING OR FAXING AN OPT-OUT REQUEST TO OUR CUSTOMER SERVICE CENTER LISTED BELOW. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, THE EMAIL ADDRESS YOU USED TO REGISTER WITH KOBAI, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF PRODUCTS TO YOU BY US. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
Arbitration Rules. The arbitration will be conducted by JAMS alternative dispute resolution service (“JAMS”) under its rules if you are a resident of the United States; if your use of the Products has been principally for personal or household use, JAMS’ procedures for consumer-related disputes including the minimum fairness standards will also apply. If you are a resident of a country other than the United States, the arbitration will be conducted by JAMS in Santa Clara County, California, under its rules for international arbitration, and you and we agree to submit to the personal jurisdiction of the U.S. federal court in Santa Clara county, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control. The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with at least fifteen years’ experience in consumer and technology transactions and who is also a member of JAMS’ roster of arbitrators. If you and we can’t agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then JAMS will pick a neutral arbitrator who meets the qualifications. The JAMS rules are available at http://www.jamsadr.com, or by calling 1- 800 – 352- 5267 from inside the United States or +44 207 583 9808 from outside the United States.
Arbitration Fees. The allocation and payment of all filing, administration and arbitrator fees will be governed by the JAMS’s rules which limit the amount a consumer is required to pay. If the arbitrator determines that your Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, we agree to reimburse you the amount of all filing, administration and arbitrator fees you are required to pay for the arbitration.
Initiating Arbitration. To begin an arbitration proceeding, you must follow the procedures specified by the applicable JAMS rules as described on their website at http://www.jamsadr.com.
Time Restriction. YOU MUST FILE A COMPLAINT WITH JAMS OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
Arbitration Process. Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language at a location designated by JAMS that is the most convenient for you.The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable JAMS rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.In conducting the arbitration proceeding, the arbitrator will apply the laws of the State of California (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (e.g. the Federal Arbitration Act). The confidentiality provisions of these Terms will be enforceable under the provisions of the California Uniform Trade Secrets Act, California Civil Code Section 3426, as amended. At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding on the parties except for any right to appeal under the JAMS rules or the Federal Arbitration Act.
Recovery and Attorneys’ Fees. If the arbitrator rules in your favor on the merits of any Claim you bring against us and issues you an award that is greater in monetary value than our last written settlement offer made to you before written submissions are made to the arbitrator, then we will (i) pay you 150% of your arbitration damages award, up to $1,000 over and above your damages award; and (ii) pay your attorneys, if any, the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably incurred for investigating, preparing, and pursuing your Claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The right to attorneys’ fees and expenses discussed above supplements any right to attorneys’ fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys’ fees or costs. If your use of the Products was principally for personal or household use, neither party will be entitled to any award of punitive or special damages and Kobai waives any right it may have to seek an award of attorneys’ fees and expenses from you in connection with any arbitration of Claims between us.
Confidentiality. You and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to your or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
Continuing Obligation to Arbitrate; Severability. This Arbitration Provision shall survive termination of your access to or use of any Products and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
You acknowledge and agree that a breach of your obligations under these Terms may cause harm to Kobai for which monetary damages are not a sufficient remedy. In such event and notwithstanding the Section above regarding Dispute Resolution and Binding Arbitration, you understand and agree that Kobai shall be entitled to seek to obtain from a court of appropriate jurisdiction immediate injunctive or other equitable relief to which it may be entitled under the circumstances in addition to other remedies allowed under these Terms and under applicable law.
California law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Except as otherwise provided in the Dispute Resolution and Binding Arbitration Section above, any disputes relating to these Terms or our Site will be heard in the courts located in the Santa Clara County, California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. All of the terms and conditions of these Terms shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of the parties. These Terms, and any other agreements referenced herein, are the entire agreement between you and Kobai and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Kobai about our Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability, and general provisions shall survive any termination of these Terms.
FOR USERS OUTSIDE THE UNITED STATES
These Terms were written in English (US). To the extent any translated version of these Terms conflict with the English version, the English version controls.