Terms of Service
NOTICE OF MANDATORY ARBITRATION PROVISION:
These Terms of Service contains provisions that govern how claims you and Kadince have against each other are resolved (see Section 8 (Limitation of Liability); Section 10 (Dispute Resolution and Arbitration: Mandatory Binding Individual Arbitration Instead of Court; Class Action Waiver); and Section 11 (Governing Law; Submission to Jurisdiction; Jury Trial Waiver) below).
It also contains an agreement to arbitrate, which, with limited exception, will require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 10.3(f) (Opt-Out). Unless you opt-out in accordance with Section 10.3(f) (Opt-Out): (a) you will only be permitted to pursue claims against Kadince on an individual basis, not as part of any class or representative action or proceeding; and (b) you will be permitted to seek relief (including without limitation monetary, injunctive, and declaratory relief) only on an individual basis.
Welcome, and thank you for your interest in Kadince, Inc. (“Kadince,” “we,” “our,” or “us”) and our website at kadince.com, including subdomains of that website (collectively, the “Site”). These terms of service (“Terms of Service”) describe the terms and conditions of use of this Site by you, the Site viewer (“you” or “your”) and your rights and responsibilities as a Site viewer. Kadince and you each referred to as “Party” and collectively “Parties”.
To use the Site you must (a) be at least 18 years old (or have reached the age of majority in the jurisdiction in which you reside) to use the Site; (b) have not previously been suspended or removed from the Site or any other service provided by Kadince; and (c) use the Site in compliance with any and all Applicable Laws (defined below) (collectively, “Eligible”).
By accessing or using the Site in any manner (whether automated or otherwise), you (a) acknowledge that you read and understand, and, as a condition to your use of the site, agree to be bound by these Terms of Service and our Privacy Policy, which is incorporated herein by reference, and (b) represent and warrant you are Eligible to use the Site. If you are not Eligible or do not agree to these Terms of Service, then you do not have our permission to access or use the Site. Your access or use of the Site, and our provision of the Site to you, constitutes an agreement by and between you and us to be bound by these Terms of Service.
Be advised that these Terms of Service contain disclaimers of warranties and limitations on liability that may be applicable to you.
1. OVERVIEW OF THE SITE.
Changes to the Site. We may, from time to time in our sole discretion, develop and provide updates which may include upgrades, bug fixes, patches, and other error corrections and/or new features to our Site (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Site. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Site. Kadince reserves the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. Kadince will have no liability for any change to the Site or any suspension or termination of your access to or use of the Site.
No Guarantee. Although we work hard to provide a quality Site, you understand and acknowledge that we cannot promise or guarantee specific results from using the Site.
Temporary Interruptions. You understand and agree that temporary interruptions of the Site may occur as normal events that are out of our control. You also understand and agree that we have no control over the third-party networks or service(s) that we may use to provide you with the Site. You agree that the Site is provided “AS IS” and that we assume no responsibility for the timeliness, deletion, misdelivery or failure to store any user communications or personalization settings.
2. LICENSE TO USE THE SITE.
Limited License. Subject to your complete and ongoing compliance with these Terms of Service, you are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Site solely for your own internal use. Kadince reserves all rights not expressly granted herein in the Site. Except as expressly set forth herein, no rights or licenses are granted to you under these Terms of Service, whether by implication, estoppel or otherwise.
Use of Site. We reserve the right to decline to provide the Site to any person for any or no reason. If and when you provide information to Kadince, you agree to: (a) provide accurate, current, and complete information as prompted (including without limitation your contact information), and (b) maintain and update your information to keep it accurate, current, and complete. By providing Kadince with your email address or other contact information, you consent to our use of this information to send you Site-related notices and other administrative notices, including without limitation any notices required by any applicable law, statute, rule, ordinance, code, order or regulation of any government or quasi-government authority (“Applicable Law”).
3. RULES GOVERNING YOUR USE OF THE SITE.
Restrictions. Except and solely to the extent such a restriction is impermissible under Applicable Law, you may not: reproduce, distribute, publicly display, or publicly perform the Site; make modifications to the Site; or interfere with or circumvent any feature of the Site, including any security or access control mechanism.
Rules. You may not use the Site, or assist or encourage any other party to use the Site, to engage in any activity that Kadince deems objectionable, including without limitation any of the following prohibited activities:
(a) copy, frame or mirror any part of the Site;
(b) use the Site for any illegal purpose or in violation of any local, state, national, or international law;
(c) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
(d) interfere with security-related features of the Site, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) copying, modifying, or creating a derivative work of, reverse engineer, decompile or otherwise attempting to extract the source code of the software underlying any portion of the Site except to the extent that the activity is expressly permitted by Applicable Law, provided that you first give prior written notice to Kadince;
(e) interfere with the operation of the Site or any user’s enjoyment of the Site, attempting to disrupt, degrade, impair or violate the integrity or security of the Site or the computers, services, accounts or networks of any other party (including without limitation “hacking,” “denial of service” attacks, etc.), including without limitation any activity that typically precedes attempts to breach security such as scanning, probing or other testing or vulnerability assessment activity or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of Kadince internet protocol space;
(f) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc. to access the Site in a manner that sends more request messages to the Site than a human can reasonably produce in the same period of time by using a conventional web browser;
(g) executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Site’s servers or any data not intended for you;
(h) taking any action that imposes, or may impose, as we determine in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
(i) perform any fraudulent activity including impersonating any person or entity, or claiming a false affiliation; or
(j) sell or otherwise transfer the access granted under these Terms of Service or any Materials (as defined below) or any right or ability to view, access, or use any Materials.
Improper use of the Site may result in civil or criminal liabilities to you and/or the termination of your access by us to the Site.
4. CONTENT.
Information You Submit / User Content. Do not submit any information or other materials that you consider confidential or proprietary through the Site. If you choose to provide information, data, materials, and content to Kadince (collectively, “User Content”), then you do so on a non-confidential basis (regardless of any designation or indication to the contrary in the submitted information or any accompanying correspondence). You are solely responsible for any User Content that you submit, post, or display on or via the Site. Without limitation to the restrictions set forth in Section 3.2 (Rules), you represent and warrant that: (a) you own the User Content or otherwise have the right to grant the rights and licenses set forth in these Terms of Service; (b) the use of your User Content does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (c) the User Content does and will comply with Applicable Law. You acknowledge and agree that your relationship with Kadince is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not place Kadince in a position that is any different from the position held by members of the general public, including without limitation with regard to your User Content.
License to User Content. You expressly grant, and you represent and warrant that you have all rights necessary to grant, to Kadince a royalty-free, fully paid-up, fully sublicensable (through multiple tiers of sublicensees), fully transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, distribute, modify, reproduce, publicly display, publicly perform and create derivative works of all User Content, and Kadince will be free to use and exploit such User Content without obligation or liability to you, financial or otherwise, for the purposes of (a) providing the Site, (b) marketing, selling or otherwise providing products and services using the Site, or (c) developing, maintaining, supporting or improving the Site. You agree that all User Content is non-confidential and may be used, collected, stored, shared, or otherwise exploited by us or on our behalf without limitation, including without limitation in order to provide the Site. Kadince aggregates User Content with other data and also collects technical information and data about your use of the Site. You expressly agree that Kadince may use any aggregated and anonymized data for any purpose during or after the term of these Terms of Service, including without limitation to develop and improve the Site or otherwise develop and improve Kadince’s services and products.
5. OWNERSHIP; PROPRIETARY RIGHTS.
The Site is owned and operated by Kadince and the Site (and all intellectual property and other rights relating thereto) is and will remain the property of Kadince. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Site (“Materials”) provided by Kadince are protected by U.S. and international copyright, trademark, and other intellectual property and Applicable Laws, and you acknowledge that these rights are valid and enforceable. All Materials included in the Site are the property of Kadince or its third-party licensors. You acknowledge that you do not acquire any ownership rights by using the Service. The trademarks, trade names, service marks, brands, logos, and trade dress displayed on the Site (collectively, the “Kadince Trademarks”) are the registered and unregistered intellectual and proprietary property of Kadince and/or others. Nothing contained in these Terms of Service should be construed as granting, by implication, estoppel, or otherwise any license or right to use any Kadince Trademark(s) without the express written permission of Kadince or the third-party owner of any such Kadince Trademark or Materials. Kadince reserves all rights to the Materials not granted expressly in these Terms of Service.
6. TERM AND TERMINATION.
These Terms of Service are effective beginning when you accept these Terms of Service or first access or use of the Site, and Service and shall remain effective until terminated in accordance with the terms set forth herein. If you violate any provision of these Terms of Service, your authorization to access the Site and these Terms of Service automatically terminates. In addition, Kadince may, at its sole discretion, terminate these Terms of Service, or suspend or terminate your access to the Site at any time for any reason or no reason, with or without notice. Upon termination of these Terms of Service: (a) your license rights will terminate and you must immediately cease all use of the Site; (b) you will no longer be authorized to access the Site; and (c) this sentence and Sections 1, 3, 4.3, 5, 7, 8, 9, 10, 11, and 12 will survive, as well as any terms that by their nature are intended to survive.
7. DISCLAIMERS; NO WARRANTIES.
THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. KADINCE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE AND ANY WARRANTIES THAT THE SITE IS CURRENT AND/OR UP-TO-DATE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. KADINCE DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND KADINCE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR KADINCE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE KADINCE ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE OR YOUR USE OF THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SITE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE) OR ANY LOSS OF DATA. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE SITE, AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND YOUR RELIANCE THEREON.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Kadince does not disclaim any warranty or other right that Kadince is prohibited from disclaiming under Applicable Law.
8. LIMITATION OF LIABILITY.
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE KADINCE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY KADINCE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE KADINCE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
9. INDEMNITY.
To the fullest extent permitted by law, you are responsible for your use of the Site, and you will defend and indemnify Kadince and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Kadince Entities”) from and against every claim brought by a third party, and any related liability, damage, loss and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: your unauthorized use of, or misuse of, the Site; your violation of any portion of these Terms of Service, any representation, warranty, or agreement referenced in these Terms of Service, or any Applicable Law; your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property or privacy right; or any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
10. DISPUTE RESOLUTION AND ARBITRATION: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND IMPACTS THE WAY THAT YOU AND WE BRING CLAIMS AGAINST EACH OTHER AND HOW THOSE CLAIMS ARE DECIDED.
Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy, or claim related to the Site (each a “Dispute” and collectively, the “Disputes”) brought by either you or us, the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 60 days before initiating arbitration. Such informal negotiations commence upon written a Party providing a Notice of Dispute (as defined below) to the other Party.
Mediation. If a Dispute arises out of or relates to these Terms of Service or the breach thereof, and if the Dispute cannot be settled through negotiation, the Parties agree first to try in good faith to settle the Dispute by mediation administered by the American Arbitration Association (“AAA”) under its commercial mediation procedures before resorting to arbitration. If such mediation does not settle the Dispute, you and we agree that any dispute or claim relating in any way to the interpretation, applicability, enforceability, or formation of these Terms of Service will be resolved exclusively though final and binding arbitration, rather than in court.
Agreement to Arbitrate. If the Parties are unable to resolve a Dispute through negotiation or mediation described above, then unless stated otherwise herein, you and Kadince agree that any and all Disputes arising out of or relating in any way to Kadince’s Site or from any advertising for any such products or services, including any question regarding the existence, validity, or termination of these Terms of Service will be resolved by binding arbitration (rather than in court) and, if applicable, Kadince may pursue a collection action against you in court at its sole discretion (“Agreement to Arbitrate”). This Agreement to Arbitrate includes any claims that arose before you accepted these Terms of Service, regardless of whether prior versions of these Terms of Service required arbitration. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) (“FAA”) and federal arbitration law apply to this Agreement to Arbitrate and, to the extent not consistent with the FAA, the laws of the State of Utah without regard to principles of conflict of laws govern the interpretation and enforcement of this Agreement to Arbitrate.
(a) Scope of Arbitration. This Agreement to Arbitrate is intended to be broadly interpreted and includes any Dispute between you and us regarding any aspect of your relationship with us or any conduct or failure to act on our part, including claims based on breach of contract, tort (for example, a negligence or product liability claim), violation of law or any claims based on any other theory, and including those based on events that occurred prior to the Effective Date of this Site, except as otherwise provided herein. All challenges to the interpretation or enforceability of any provision of this Site, including questions of arbitrability, shall be brought before the arbitrator, and the arbitrator shall rule on all questions regarding the interpretation and enforceability of this Site.
(b) Small Claims Exception. Notwithstanding the Parties’ agreement to resolve all Disputes through arbitration, either Party may seek relief in a small claims court for Disputes within the scope of that court’s jurisdiction and on an individual (non-class) basis only. If a Party initiates an arbitration asserting a Dispute that falls within the jurisdiction of a small claims court, the other Party, in its discretion, may require that the arbitration demand be withdrawn and that a claim for a Dispute be filed in small claims court.
(c) IP Exception. Notwithstanding the foregoing, any Dispute regarding the validity, protection or enforcement of Kadince’s intellectual property rights must be brought in court, subject to Section 11 (Governing Law; Submission to Jurisdiction; Jury Trial Waiver).
(d) Class Action Restriction. You and we agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, representative, consolidated, or mass action. Neither you nor Kadince may join or consolidate claims by or against a third party or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity.
(e) Batch Limitation. If your Notice of Dispute (defined below) involves claims similar to those of at least 24 other individuals, and if you and those other individuals are represented by the same lawyers or by lawyers who are coordinating with each other, you and we agree that these claims will be “Related Cases.” Related Cases will be governed by the AAA’s Mass Arbitration Supplementary Rules, as modified by these Terms of Service. For more information, see https://www.adr.org/mass-arbitration or call 1-800-778-7879. Related Cases may only be filed in batches of up to 50 individual arbitrations at a time, and those individual arbitrations will be resolved in the following manner: (i) for the first batch, each side may select up to 25 of these Related Cases to be filed and resolved in individual arbitrations under this Agreement to Arbitrate; (ii) none of the other Related Cases may be filed or prosecuted in arbitration until the first batch of up to 50 individual arbitrations is resolved; and (iii) if, after that first batch, the parties are unable to informally resolve the remaining Related Cases, a second batch of Related Cases may be filed, where each side may select up to 25 of the Related Cases to be resolved in individual arbitrations under this Agreement to Arbitrate. This process of batched individual arbitrations will continue until the parties resolve all Related Cases informally or through individual arbitrations, or unless AAA or an arbitrator appointed by AAA directs otherwise following arbitration of the second batch of Related Cases. A court has exclusive authority to enjoin the filing or prosecution of arbitrations that do not comply with this paragraph.
(f) Opt-Out. You may opt out of this Agreement to Arbitrate by providing written notice to us at the Notice Address (defined below) no later than 30 calendar days from the date of the Effective Date (or date of your first use, in cases of free beta releases, products or services). Your written notification to us must include your name, mailing address, email address, phone number and a clear statement that you do not wish to resolve Disputes with Kadince through arbitration. Opting out of this dispute resolution procedure will not otherwise affect the coverage or applicability of these Terms of Service or your ability to use our services in any way.
Procedure for Arbitration.
(a) Neutral Arbitrator. Arbitration uses a neutral arbitrator instead of a judge and jury. An arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of the Site as a court would. Arbitration procedures allow for more limited discovery, and court review of an arbitration award is limited. The Parties agree that the arbitration may be administered by the AAA, the arbitrator, or another administrator mutually selected by the Parties.
(b) Notice. A Party who intends to arbitrate a Dispute (“Claimant”) must first send to the other Party (“Respondent”) a written notice titled “Notice of Dispute for Arbitration” (“Notice of Dispute”). The Notice of Dispute must: (i) briefly explain the dispute; (ii) provide the Claimant’s name and address, the address of the Claimant’s representative (if the Claimant has one), and the Respondent’s name and address (for Kadince, see below); (iii) specify the amount of money in dispute, if applicable; (iv) if the Claimant is requesting an in-person hearing, identify the requested location for the hearing; and (v) include a statement of what the Claimant wants.
If you are the Claimant, then the Notice of Dispute must be sent to Kadince and addressed to:
Kadince, Inc.
2637 North Washington Boulevard, #154,
North Ogden, UT 84414
If Kadince is the Claimant, then Kadince will send the Notice of Dispute to you at the email address associated with you.
Such Kadince address is referred to as “Notice Address.”
If the Parties have agreed that the AAA will administer the arbitration, the Notice of Dispute must also be sent to the AAA at either the following address or filed with the AAA online using AAA WebFile: https://www.adr.org:
American Arbitration Association
Case Filing Services
1101 Laurel Oak Road, Suite 100
Voorhees, NJ 08043
The Claimant must send one copy of the Notice of Dispute to AAA at the same time the Claimant sends it to the Respondent. When sending a copy of the Notice of Dispute to AAA, the Claimant must also include a copy of this Agreement to Arbitrate and any amendments to it and the then current filing fee required by the AAA.
(c) Time Limitation on Claims. You agree that any claim for any Dispute that may have arisen out of or related to your relationship with us and this Site must be filed within one year after the occurrence of the event giving rise to such Dispute; otherwise, your claim for such Dispute is permanently barred.
(d) Filing, Administration, and Arbitrator Fees. Each Party will bear its own fees for filings, counsel, experts, witnesses, and preparation and presentation of evidence at any arbitration hearing. Fees for the arbitrator’s compensation and case administration shall be borne pursuant to the AAA’s then-current Consumer Arbitration Rules.
(e) Arbitration Rules. The arbitration will be governed by the AAA’s then-current Consumer Arbitration Rules, as modified by the terms of the Site. The AAA Rules and Forms are available online at http://www.adr.org or by calling the AAA at 1-800-778-7879. In the event of any conflict between the terms of the Site and the AAA Consumer Arbitration Rules, the terms of the Site will apply.
(f) Final Judgment. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator will decide the substance of all claims in accordance with Applicable Law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator must enforce the same limitations stated in this Site as a court would. The arbitrator shall not be bound by rulings in prior arbitrations involving different users but shall be bound by rulings in prior arbitrations involving the same Kadince user to the extent required by Applicable Law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will issue an award decision in writing but will not provide an explanation for the award unless you or we request one.
(g) Venue. Where no disclosed claims or counterclaims exceed US $25,000, the Dispute shall be resolved by the submission of documents only, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or we may attend by telephone, unless the arbitrator requires otherwise.
(h) Confidentiality. Any arbitration will be confidential. Neither you, we, the AAA, nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by Applicable Law or for purposes of enforcing or challenging of the arbitration award.
(i) Severability. With the exception of any of the provisions in Section 10.3(d) (Class Action Restriction) of this Agreement to Arbitrate, if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
(j) Future Amendments to Agreement to Arbitrate. Notwithstanding any provision in these Terms of Service to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any Notice Address or site link provided herein) in the future, that amendment shall not apply to any claim of a Dispute that was filed in a legal proceeding against Kadince prior to the effective date of the amendment. The amendment shall apply to all other Disputes governed by the Agreement to Arbitrate that have arisen or may arise between you and Kadince. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms here at least 30 days before the effective date of the amendments and by providing notice through a banner on the homepage of our Site. If you do not agree to these amended terms, you may opt out within 30 days after notice of the amendment following the instructions above, and then you will not be bound by the amended terms.
11. GOVERNING LAW; SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER.
If and to the extent Section 10 (Dispute Resolution and Arbitration: Mandatory Binding Individual Arbitration Instead of Court; Class Action Waiver) of these Terms of Service does not apply to the Dispute, then the Dispute between the Parties shall be governed by, and construed and interpreted in accordance with, the FAA, applicable federal law, and the laws of the State of Utah without regard to conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 10 (Dispute Resolution and Arbitration: Mandatory Binding Individual Arbitration Instead of Court; Class Action Waiver), the Parties irrevocably consent to bring any action to enforce these Terms of Service in the federal or state courts located in Salt Lake County, Utah and irremovably you consent to the exclusive jurisdiction of the federal or state courts located in Salt Lake County, Utah.
12. MISCELLANEOUS.
Modification of These Terms of Service. We reserve the right to change these Terms of Service on a going-forward basis at any time. Please check these Terms of Service periodically for changes. The date these Terms of Service were last revised and updated (“Last Updated”) is set forth at the top of this page. All changes are effective and apply thereafter to all access to and use of the Site 15 days after posting for current users and immediately for new users. You must accept all changes in order to continue to use and access the Site. Your continued use of the Site following the effective date of the revised Terms of Service means that you accept and agree to the changes.
Links to Other Websites. The Site may contain links to third-party websites. We do not control the linked websites or services or the content provided through such websites or services, and we have not reviewed such websites or services. Your use of linked websites or services is subject to the privacy policies and terms of use established by the specific linked website or service, and we disclaim all liability for such use. The fact that we offer such links does not indicate any approval or endorsement by us of any linked website or service or any material contained on any linked website or service, and we disclaim any such approval or endorsement.
Additional Terms. Your use of the Site is subject to all additional terms, policies, rules or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site or that you agree to in connection with certain technology or services made available to you by or on behalf of Kadince (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms of Service.
Consent to Electronic Communications. By using the Site, you consent to receive certain electronic communications from us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.
International Use. The Site is intended for visitors located within the United States. We make no representation that the Site is appropriate or available for use outside of the United States. Access to the Site from countries or territories or by individuals where such access is illegal is prohibited.
Force Majeure. In addition to any excuse provided by Applicable Law, we shall be excused from liability for non-delivery or delay in delivery of products and offerings available through our Site arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to: labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
Assignment. You may not assign or transfer these Terms of Service or your rights under these Terms of Service, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms of Service at any time without notice or consent.
Severability. If any part of these Terms of Service is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
No Waiver. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms of Service, or any provision of these Terms of Service, be a waiver of any subsequent breach or default or a waiver of the provision itself.
Interpretation. Use of section headers in these Terms of Service is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms of Service, the use of the word “including” means “including but not limited to.”
Contact Information. The Site is offered by Kadince, Inc., located at 2637 North Washington Blvd., #154, North Ogden, UT 84414. You may contact us by sending correspondence to that address or by emailing us at legal@kadince.com.