Last Updated: March 8th, 2023
Keeping It Cool, Inc. (“KIC,” “we,” “us,” or “our”) welcomes you. We provide you access to our website, available at www.keepit.cool and app.keepit.cool (the “Site”) and our accompanying application pages (the “Apps” and, collectively with the Site, the “Platform”) subject to the following terms of use (“Terms of Use”), which may be updated by us from time to time without notice to you. By accessing or using the Platform, you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Use and our Privacy Policy, which is hereby incorporated by reference (collectively, this “Agreement”). If you do not agree to any of these terms, then please do not use the Platform.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.
1. DESCRIPTION AND USE OF THE PLATFORM AND PRODUCTS
We provide Visitors, Registered Users, and Recipients with access to the Platform as described below.
“Visitors”. Visitors, as the term implies, are people who do not register with us, but want to explore the Site. No login is required for Visitors. Visitors can: (i) view all Content and access all publicly-available features and functionality on the Site; (ii) subscribe to KIC communications, alerts, and other notifications; (iii) contact us; (iv) view information made available to them on the Apps by a Registered User; and (v) apply for access to the Apps.
“Registered Users”. Registered Users can do all the things that Visitors can do, and: (i) access non-public features and functionality available only to Registered Users; (ii) create, access, manage, and update their own personal accounts on the Platform; (iii) post comments, reviews, and other content on the Platform and/or interact with other Registered Users of the Platform (all content and information provided in connection with the foregoing is collectively referred to herein as “Registered User Content”, except that information uploaded by or on behalf of a Registered User, which information is considered Recipient PII (defined in Privacy and Data Protection hereunder)) shall not be considered Registered User Content; and (iv) manage their usage of our products and services through the Apps (“Products”).
Registered Users, Visitors, and Recipients may be referred to throughout the agreement as “you”.
Parties who execute a contract with KIC to use its Products and are given log in information are “Registered Users”. These Products provide information and insights to recipients of products originating with the Registered Users (“Recipients”). Recipients may utilize the information contained in KIC’s Product(s) that were shipped with the goods from the Registered Users and delivered to the Recipient in the discretion of the Registered User, Registered Users may utilize the Apps to view information related to all their uses of our Products, but Recipients can only access the Apps for information as it pertains to individual shipments to them, and which will be represented by a different Product card. Importantly, Recipients are not obligated by KIC to use any Product by KIC. However, the Recipients may be invited to scan a Product to upload information about the Product and the container in which the Product was placed to the Platform. Each Registered User represents and warrants to KIC that to the extent that they invite their Recipients to interact with the Platform that the Recipient possesses the right to do so.
KIC is under no obligation to accept any individual as a Registered User or Recipient and may accept or reject any registration in its sole and complete discretion. In addition, KIC may deactivate any account at any time, including, without limitation, if it determines that a Registered User or its Recipients have violated these Terms of Use.
2. LICENSE
License Grant. With regard to the Products and Platform, and subject to the terms hereof, KIC grants to Registered Users a worldwide, non-sublicensable (except with respect to Recipients), nonexclusive, non-transferrable/assignable right and license to access and use the Apps. In no event will any terms agreed to by Recipients reduce or limit our rights and obligations with respect to you. You will use commercially reasonable efforts to utilize the Platform in accordance with the documentation provided to you by us. Additionally, you recognize that we are under no obligation by virtue of this Agreement, except as otherwise expressly stated, to provide you with troubleshooting, errors, or other issues you may encounter using our Products or Platform. You may however contact us for assistance with any such issue, which we are not obligated to provide.
3. RESTRICTIONS ON USE
By accessing and/or using the Platform, you, as a Registered User or a Recipient accessing the App through a Registered User, agree to comply with the following restrictions on use:
You will let us know about inappropriate Registered User or Recipient behavior of which you become aware.
We have the right, but not the obligation, to review and reject or remove any Registered User’s or Recipient’s supplied information that, in our sole discretion, violates these Terms of Use in any respect. We also reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or to any portion of the Platform, without notice.
4. SIGN-IN NAME; PASSWORD; UNIQUE IDENTIFIERS
If you wish to become a Registered User, you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered or payments made through the Site using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. KIC will not be liable for any loss or damage caused by any unauthorized use of your account.
5. INTELLECTUAL PROPERTY
Content. The Platform contains material, such as software, text, graphics, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of KIC (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Platform automatically terminates and you must immediately destroy any copies you have made of the Content.
Trademarks. The trademarks, service marks, and logos of KIC (the “KIC Trademarks”) used and displayed on the Platform or with its Products are registered and unregistered trademarks or service marks of KIC. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (collectively with KIC Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless the establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of KIC Trademarks inures to our benefit.
Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
Unless otherwise agreed between KIC and you, each Product or service marketed on this Site is made available solely for license, not sale, to you and other prospective customers under the terms, conditions and restrictions of the license agreement made available to you herein and when purchasing our Products or services.
You will comply with all terms and conditions of the specific license agreement for any Product or service you obtain through us, including, but not limited to, all confidentiality obligations and restrictions on resale, use, reverse engineering, copying, making, modifying, improving, sublicensing, and transfer of those licensed Products and services.
You will not cause, induce, or permit others' noncompliance with the terms and conditions of any of these Product and service license agreements.
Resultant Data. Notwithstanding anything to the contrary, KIC shall have the right to collect and analyze Registered Users’, Visitors’ and Recipients’ uploaded or provided data and other information, on an anonymized and aggregated basis, relating to the provision, use and performance of various aspects of the Platform, Products, related systems and technologies, and any other data that does not identify any particular person (“Resultant Data”), and KIC will be free (during and after the term of the applicability of this Agreement to any party) to use, modify, and disclose such Resultant Data, including without limitation, for the purpose of improving and enhancing KIC’s products and services. In furtherance of the foregoing, Registered Users, Visitors, and Recipients hereby unconditionally and irrevocably grant to KIC an assignment of all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto. For the avoidance of doubt, Resultant Data shall not include any Recipient PII or personally identifiable information of another without such person’s consent.
Other Intellectual Property. KIC and its licensor(s) are and will remain the sole and exclusive owners of all intellectual property and other rights in and to each Product and service made available on or through this Platform or to you and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, and Trademarks and other intellectual property rights, subject only to the limited license granted under the Product's or service's license agreement. You do not and will not have or acquire any ownership of these intellectual property rights in or to the Products or services made available through this Platform, or of any intellectual property rights relating to those Products or services.
6. PRIVACY AND DATA PROTECTION
Data. “Recipient PII” means any information obtained in connection with your use of the Platform or Products that can reasonably be used to identify any customer, Recipient, or end person to whom Registered Users ship items with our Products, including but not limited to full name, contact information, precise location information, or any unique identifier, or may otherwise be considered “personal data” by a governmental authority. KIC agrees to process only Recipient PII as is necessary to provide the Platform to you. KIC agrees that any Recipient PII obtained in connection with a Registered User shall be used solely for the purpose of providing the Platform to such Registered User, and for no other purpose, unless expressly authorized in writing by the Registered User, which shall, at a minimum, represent and warrant that it has the right to use the Recipient PII as described. KIC agrees that it shall not disclose Recipient PII to any third parties, except as permitted by the Registered User, the Recipient, the party whose personal data it is, or as required by law. KIC shall retain material containing Recipient PII obtained in connection a Registered User’s use of the Platform only so long as necessary to perform the services or carry out its obligations to the Registered User. Upon termination of its status as a Registered User, KIC shall deliver to the Registered User or, at its election and in accordance with any instructions from the Registered User or Recipient, destroy, any and all materials, documents, or other media (whether maintained electronically or otherwise) containing Recipient PII, together with all copies thereof in whatever form.
Security. KIC agrees to implement appropriate legal, technical, and organizational measures to protect Recipient PII against unauthorized or unlawful use, access and processing, and against unauthorized loss, destruction, damage, alteration, or disclosure, as well as any breach or attempted breach of KIC’s security measures (“Information Security Breach”), keeping in mind the nature of the information. KIC shall promptly notify the Registered User if KIC learns or has reason to believe that an Information Security Breach has occurred or is reasonably likely to occur. Upon any such discovery, KIC will (a) take all reasonable steps to investigate, remediate, and mitigate the effects of the Information Security Breach, and (b) provide the Registered User with assurances reasonably satisfactory to the Registered User that such Information Security Breach will not recur.
Investigations. KIC shall provide reasonable assistance and support and assist the Registered User in the event of an investigation by a data protection regulator or similar authority, if and to the extent that such investigation relates to the collection, maintenance, use, processing, or transfer of Recipient PII pursuant to the Registered User’s use of the Platform. KIC shall provide to the Registered User, its authorized representatives, and/or an independent inspection body designated by the Registered User, on reasonable notice, (i) access to KIC’ information processing premises and records, and (ii) reasonable assistance and cooperation of KIC’s relevant personnel for the purpose of auditing KIC’ compliance with its obligations under this Agreement.
For more information on privacy, please refer to our privacy policy.
7. REGISTERED USER CONTENT
As noted above, the Platform provides Registered Users the ability to post and upload Registered User Content. You expressly acknowledge and agree that once you submit your Registered User Content, it may be accessible by others, that there is no confidentiality or privacy with respect to such Registered User Content, including, without limitation, any personally identifying information that you may make available, other than the Recipient PII. YOU, AND NOT KIC, ARE ENTIRELY RESPONSIBLE FOR ALL REGISTERED USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE SITE, AND YOU WILL INDEMNIFY US IN RESPECT OF ANY LOSS, LIABILITY, CLAIM, OR DAMAGE SUFFERED OR INCURRED BY US IN CONNECTION WITH ANY SUCH REGISTERED USER CONTENT.
You retain all copyrights and intellectual property rights or other rights in and to your own Registered User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your Registered User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your Registered User Content, your Sign-In Name, name, likeness, and photograph in connection with any use of the related Registered User Content permitted by the previous sentence and/or to advertise and promote the Platform, KIC, our Products, and our other products and services. Without limiting the foregoing, you acknowledge and agree that uses of your Registered User Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such Registered User Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.
8. RELIANCE ON INFORMATION POSTED
The information presented on or through the Platform is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any unregistered user of the Platform, or by anyone who may be informed of any of its contents.
This Platform may include content provided by third-parties, such as, without limitation, ship times and weather information. All statements and/or opinions expressed in these materials not provided by KIC, are solely the opinions and the responsibility of the person or entity providing those materials. KIC is not responsible, or liable to you or any third-party, for the content or accuracy of any materials provided by any third-parties through the KIC Platform.
9. COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you, and we may utilize or protect such information as our own.
10. NO WARRANTIES; LIMITATION OF LIABILITY
All products shipped which are not our Products are provided by the third-party sellers, and not by KIC; therefore, KIC has no control over, and hereby disclaims any and all liability arising out of or associated with, the condition, quality, safety, legality, or suitability of any such product. ALL PARTIES, ON BEHALF OF THEMSELVES AND THEIR RESPECTIVE ASSIGNS, SUBROGEES, REPRESENTATIVES AND ALL OTHER PERSONS OR ENTITIES ACTING FOR, BY OR THROUGH IT, HEREBY RELEASE AND FOREVER DISCHARGE KIC, ITS DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, AND INSURERS, FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS OR RIGHTS OF ACTION, OF WHATEVER NATURE, CHARACTER OR DESCRIPTION, FOR PERSONAL INJURY, PROPERTY DAMAGE OR DEATH THAT ARISE FROM, ARE RELATED TO OR ARE IN ANY WAY CONNECTED WITH ANY NON-KIC PRODUCT OR ITS PURCHASE OR USE.
KIC’S PRODUCTS ARE SOLELY FOR MONITORING THE TEMPERATURE OF A SHIPPING CONTAINER. KIC’S PRODUCTS ALSO PROVIDE KIC WITH INFORMATION THAT IT CAN EXTRAPOLATE TO PROVIDE ESTIMATES ON HOW MUCH COOLANT SHOULD BE PROVIDED FOR FUTURE PACKAGES SHIPPED BY REGISTERED USERS.
THESE ESTIMATES ARE JUST THAT—ESTIMATES. NEITHER THE RECIPIENTS NOR THE REGISTERED USER SHOULD INTERPRET ANY RECOMMENDATION MADE BY KIC REGARDING HOW MUCH COOLANT TO PROVIDE AS BEING A WARRANTY. KIC DISCLAIMS ENTIRELY THAT ANY SUCH ESTIMATE IS CORRECT, ERROR FREE, OR OTHERWISE WILL MEET THE NEEDS OF EITHER THE RECIPIENTS OR THE REGISTERED USER.
YOU ACKNOWLEDGE THAT THE PLATFORM MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES. THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE PLATFORM OR CONTENT WILL OPERATE ERROR-FREE OR THAT THE PLATFORM, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE WITH RESPECT TO OUR PLATFORM OR OUR PRODUCTS.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (II) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE OUR PRODUCTS OR ESTIMATES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (III) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE PLATFORM, THE PRODUCTS, OUR ESTIMATES, OR THE CONTENT SHALL BE LIMITED TO THE TOTAL FEES THAT YOU HAVE PAID TO US WITHIN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO ANY CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
11. EXTERNAL SITES; THIRD-PARTY VENDORS
The Platform may contain links to third-party websites, including, without limitation, websites maintained or owned by other Registered Users or the websites of third-party vendors (such as shipping or data providers) that may provide services complimentary to our services (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of such External Sites. The External Sites are developed and provided by others, and you should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites or the third-party vendors highlighted on such External Sites, and we do not make any representations regarding the content or accuracy of materials on such External Sites or any such third-party vendors. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
12. Credit and Debit Cards
In the event that you pay for any Products using a credit card or debit card, you authorize us to charge your credit or debit card (or other acceptable payment method that you have chosen from those offered) ("Payment Method"), for the applicable fees for the duration of the applicable term of your selected subscription plan, Product, or other paid service or product, together with any applicable VAT, sales, use, excise, consumption or other similar tax applicable to the Products. You represent that you are authorized to use the Payment Method on your or your company’s behalf and you agree to accept an electronic record of a receipt. If at any time your Payment Method will not accept the charge for fees due, you agree that we may suspend or terminate your access to the applicable Product and that you will continue to remain liable for the full payment for such Products even after your access to the Platform has been terminated or suspended. By providing any Payment Method, you agree to the terms of use provided by the Payment Method processor that we may engage. We will not be able to view your Payment Method information or assist you if the Payment Method fails.
13. LINKING TO THE PLATFORM
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
We may disable all or any links at any time without notice in our discretion.
14. INDEMNIFICATION
You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Products, Content or the Platform; (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right; and/or (iv) your use of any estimate provided by the Platform. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
15. COMPLIANCE WITH APPLICABLE LAWS
The Platform is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use the Products, the Platform, or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
16. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time with a 30 day notice without liability.
17. DIGITAL MILLENNIUM COPYRIGHT ACT
KIC respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Copyright Agent
Keeping It Cool, Inc.
7742 N. Kendall Dr.#173
Miami, FL 33156
Privacy@KIC.com
If you believe that your work has been copied on the Platform in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Platform where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
18. CONTROLLING LAW
The Agreement and any action related thereto will be governed by the laws of the State of Florida without regard to its conflict of laws provisions.
19. BINDING ARBITRATION
In the event of a dispute arising under or relating to the Agreement, the Platform, or the Content (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in Miami, Florida. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 21 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
20. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
21. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.
22. DOWNLOADING THE APP FROM THE APP STORE.
The following terms apply when you download our App from Apple, Inc.’s App Store, if available. These terms are in addition to all other terms contained in the Agreement.
23. COMMUNICATIONS DECENCY ACT NOTICE
KIC is a provider of “interactive computer services” as defined under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation, libel, product disparagement, and other claims arising out of any Registered User Content is limited as described therein. We are not responsible for any Registered User Content. We neither warrant the accuracy of the Registered User Content nor exercise any editorial control over Registered User Content, nor do we assume any legal obligation for editorial control of Registered User Content or liability in connection with Registered User Content, including any responsibility or liability for investigating or verifying the accuracy of any Registered User Content.
24. AMENDMENTS TO THIS AGREEMENT
We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Platform and Products thereafter. Your continued use of the Platform following the posting of a revised Agreement means that you accept and agree to the changes. You are expected to check this page frequently, so you are aware of any changes, as they are binding on you.
25. MISCELLANEOUS
If the Agreement is terminated in accordance with the Termination provision above, such termination shall not affect the validity of Sections 5 through 25, which shall remain in full force and effect.
If we fail to enforce any of our rights under the Agreement, or applicable laws, it shall not be deemed to constitute a waiver of such right.
You may not transfer, delegate, or assign or sell any rights or obligations you have under this Agreement. KIC reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. Any transfer, delegation, or assignment in violation of this Agreement is null and void.
We may comply with any subpoena, levy, or other legal process which We believe to be valid. We may notify you of such process electronically, by phone, or in writing.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2023 Keep It Cool. All rights reserved.