KUSHY WEBSITE AND MOBILE APP TERMS OF SERVICE
These Terms of Service were last updated on September 10, 2017.
These Terms of Service ("Terms of Service") of KUSHY and PHANNAFEST LLC. ("KUSHY" or "Us" or "We" or "Our" when possessive) govern Your use of Our website, www.KUSHY.us and www.kushyfinder.com (the "Websites"), and mobile application (the "App"). By accessing or using the Website or the App, You (the "Customer" or "End User" or "You" or "Your" when possessive) expressly accept all of the provisions of these Terms of Service.
YOU REPRESENT, WARRANT AND COVENANT TO US THAT YOU ARE AT LEAST TWENTY-ONE (21) YEARS OF AGE AND ARE LEGALLY COMPETENT TO ENTER INTO AND AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, THEN YOU ARE NOT AUTHORIZED TO USE THE WEBSITE OR THE APP.
These Terms of Service include:
(1) an arbitration provision;
(2) a waiver of rights to bring a class action against Us; and
(3) a release by You of all claims for damage against Us that may arise out of Your use of the Website or the App.
THESE TERMS OF SERVICE WAIVE SUBSTANTIAL RIGHTS AND INCLUDE A RELEASE OF LIABILITY AND A LIMITATION OF DAMAGES. YOU ACKNOWLEDGE THAT YOU HAVE THE RIGHT TO REVIEW THESE TERMS OF SERVICE WITH AN ATTORNEY. YOU ALSO ACKNOWLEDGE THAT YOU HAVE READ THIS ENTIRE DOCUMENT AND THAT YOU ARE AWARE THAT YOU HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO THESE TERMS OF SERVICE. YOU HAVE NO OBLIGATION TO USE THE WEBSITE OR THE APP OR AGREE TOO THESE TERMS OF SERVICE, BUT YOU ARE DOING SO VOLUNTARILY AND UNDERSTAND THAT KUSHY MAY UPDATE THESE TERMS OF SERVICE IN ITS DISCRETION. YOUR USE OF THE WEBSITE AND THE APP IS EXPRESSLY SUBJECT TO YOUR ACCEPTANCE OF THESE TERMS OF SERVICE, AND YOU MAY AND WILL NOT USE THE WEBSITE OR THE APP UNLESS AND UNTIL YOU HAVE ACCEPTED AND AGREED TO BE BOUND BY THESE TERMS OF SERVICE.
ABOUT KUSHY; ACKNOWLEDGEMENTS.
What KUSHY Does. KUSHY is dedicated to providing a collaborative technology platform for and to people and businesses.
State Law. You may only use the Website and download or use the App in accordance with the laws of the jurisdiction in which You will use the Website and the App. You represent and warrant that You know the law of such state. Your use of the Website and the App will be governed by the laws of the jurisdiction in which You use the Website or the App, excepting disputes with KUSHY, as provided for in Articles 6 and 7. We reserve the right to deny or cancel Your account for any reason, including, but not limited to Our determination that Your use of the Website or the App is not permitted under the laws of Your jurisdiction. KUSHY proactively determines what state or country You are in based on information provided by You to Us. We reserve the right to deny you use of the Website or the App based on Your geographical location.
Federal Law. Although many states have legalized some form of cannabis, the cultivation, manufacture, distribution, and possession of cannabis and assisting with or conspiring to do the same remains illegal under United States federal law, and KUSHY has made no representation to the contrary. It is Your responsibility to ensure compliance with the laws of the jurisdiction in which You use the Website or the App. KUSHY has no obligation to defend, release or hold You harmless from any civil, criminal, or administrative investigations, proceedings or penalties that may result from Your use of the Website or the App. It is federally illegal to take or transfer across the state or international borders any federally illegal, controlled substance.
THE ASSUMPTION OF RISK.
You assume all risks known and unknown, foreseeable and unforeseeable, in any way connected with Your use the Website or the App. You accept personal responsibility for any liability, injury, hospitalization or other medical treatment, loss, death, criminal arrest or prosecution, or damage in any way connected with Your use of the Website or the App. You retain sole responsibility for ensuring your actions are compliant with applicable laws. You waive all claims against KUSHY, its owners, officers, employees, successors, agents, and assigns, arising out of any activities You choose to undertake. You fully comprehend and accept all of the risks associated with Your use of the Website and the App.
Age and Account Requirements. TO USE THE WEBSITE OR DOWNLOAD OR USE THE APP, YOU MUST BE AT LEAST TWENTY-ONE (21) YEARS OF AGE. You must create an "Account" to use the App, which requires You to provide certain information, including, but not limited to, Your date of birth and email address. You are responsible for providing Us with and maintaining accurate contact information, including Your email address and any other information We may reasonably require.
Account Activities. You are the sole authorized user of Your Account, and You are responsible for maintaining the accuracy and confidentiality of Your login information. You are solely and fully responsible for all activities that occur under Your Account. KUSHY has no control over the use of Your or any other user’s Account and expressly disclaims any liability derived therefrom. Should You suspect that any unauthorized party may be using Your Account or You suspect any other breach of security, You will cease all use and contact us immediately by emailing firstname.lastname@example.org
Acceptable Use Policy.
The following sets forth KUSHY’s "Acceptable Use Policy":
(a) Compliance. You agree to the following:
(1) You will not use the Website or the App if You are not fully able and legally competent to agree to these Terms of Service.
(2) YOU WILL ONLY USE THE WEBSITE AND THE APP IN FULL COMPLIANCE WITH THE LAWS AND REGULATIONS OF THE JURISDICTION IN WHICH YOU USE THE WEBSITE OR THE APP AND APPLICABLE FEDERAL LAWS, POLICIES OR GUIDANCE (collectively "Applicable Law").
(3) You may not facilitate or promote illegal activities, including but not limited to facilitating the sale or purchase of illegal drugs, depicting or encouraging the use or sale of drugs by minors, providing the instructions for growing or manufacturing illegal drugs.
(4) You will not use the Website or the App for sending or storing any material prohibited by the Applicable Law or for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct.
(5) You will not use the Website or the App to cause nuisance, annoyance or inconvenience.
(6) YOU SHALL PROVIDE US WITH WHATEVER PROOF OF IDENTITY AND OTHER NECESSARY VERIFICATION DOCUMENTS AS WE MAY REASONABLY REQUEST.
(b) General Restrictions. You agree not to use the Website or the App to collect, upload, transmit, display, or distribute any General Content (as defined below)
(1) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
(2) that is unlawful in Your jurisdiction, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or
(3) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(c) Technological Restrictions. In addition, You agree not to use the Website or the App to do any of the following:
(1) Upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data.
(2) Send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise.
(3) Harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent.
(4) Interfere with, disrupt, or create an undue burden on servers or networks connected to the Website or Services or violate the regulations, policies or procedures of such networks.
(5) Attempt to or impersonate another user or KUSHY or gain unauthorized access to the Website or the App, other computer systems or networks connected to or used together with the Website or the App, through password mining or other means.
(6) Harass or interfere with another user’s use and enjoyment of the Website or the App.
(7) Introduce software or automated agents or scripts to the Website or App so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Website or the App.
(d) Representations and Warranties. You represent and warrant that You will not do any of the following:
(1) Decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Website or the App, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law).
(2) Use any means to discover the source code of any portion the Website or the App.
(3) Remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Website or the App.
(4) Otherwise circumvent any functionality that controls access to or otherwise protects the Website or the App.
(5) Distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Website or the App in any unauthorized manner.
Breach of Acceptable Use Policy.
WE RESERVE THE RIGHT TO REMOVE ANY OF YOUR CONTENT OR ANY CONTENT THAT WE DETERMINE IN OUR SOLE DISCRETION THAT VIOLATES THE ACCEPTABLE USE POLICY IN THESE TERMS OF SERVICE. FURTHER, IF YOU BREACH THESE RESTRICTIONS, YOUR LIMITED LICENSE GRANTED HEREIN SHALL IMMEDIATELY TERMINATE AND YOU MAY BE SUBJECT TO PROSECUTION AND DAMAGES.
APP LICENSE AND RESTRICTIONS;
License Grant. Subject to Your compliance with these Terms of Service, We hereby grant You a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) to download, install, access and use the Website and the App solely on devices that You own or control, for Your personal use only, and subject to the limitations set forth in this Agreement. This limited license is limited to the intellectual property rights of KUSHY and its licensors and do not include any rights to other intellectual property. We reserve any and all rights not expressly granted to You pursuant to these Terms of Service. The limited rights granted to You to access and use the Website and the App comprises a limited license and does not constitute the sale of any software program.
KUSHY does not currently charge end users any fees for use of the Website or the App, though We reserve the right to do so in the future if permitted by applicable law. KUSHY will notify users prior to charging any fees for use of the Website or the App.
The Website and the App and their respective Content (as defined below), including their "look and feel" (e.g., text, graphics, images, logos) contain proprietary code, information and other materials that are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that KUSHY and/or its licensors own all right, title and interest in and to the Website and the App, including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto as examples improvements and derivatives, as well as that KUSHY owns all intellectual property associated with the Website and the App despite any ownership You may have in any Content You post, and You agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of KUSHY’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights, including improvements and derivatives. Any and all:
(1) suggestions for correction, change and modification to the Website or the App and other feedback (including, but not limited to, quotations of written or oral feedback), information and reports You provide to KUSHY (collectively "Feedback"); and all
(2) improvements, updates, modifications or enhancements, whether made, created or developed by KUSHY, You or otherwise relating to the Website or the App (collectively, "Revisions"), are and will remain the property of KUSHY.
You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant You any right, title or interest in the Website or the App, or any of the intellectual property rights associated with KUSHY, or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of KUSHY and KUSHY may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to You and without retention by You of any proprietary or other right or claim.
You shall assign and hereby assign to KUSHY any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that You may have in and to any and all Feedback and Revisions. At KUSHY’s request, You will execute any document, registration or filing required to give effect to the foregoing assignment as reasonably requested by KUSHY.
User Content. For purposes of these Terms of Services:
(a) "Content" means all text, images, photos, audio, video, graphics, reviews, location data, and all other forms of data, communication or media;
(b) "Your Content" means Content that you submit, or transmit to, through or in connection with the Website or the App, such as reviews, photos, videos, media, messages, posts, comments and information that you choose to display publicly but excludes Feedback and Revisions;
(c) "User Content" means Content that other users submit or transmit to, through, or in connection with the Website or App, including any electronic data or information;
(d) "KUSHY Content" means Content that We create or otherwise owned by Us and We make available in connection with the Websites or the App;
(e) "Third Party Content" means Content that originates from parties other than KUSHY or users of any of the Websites or the App, which is made available in connection with the Websites or App and not otherwise owned by Us; and
(f) "General Content" means all of the Content that is made available in connection with the Websites or Services, including Your Content, User Content, Third Party Content, and KUSHY’ Content. As a condition of Your use of the Website or the App, subject these Terms and Conditions, You shall grant and hereby grant to KUSHY a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicenseable license to access, reproduce, transmit, display, publish, distribute, and otherwise use in any way any of Your Content as well as to modify and adapt and create derivative works from Your Content.
Your Content Representations and Warranties.
By posting or submitting Your Content through the Website or the App, You represent and warrant the following:
(1) that You own or otherwise control all of the rights to Your Content, including, without limitation, all copyrights and that Your content does not unlawfully contain any Third Party Content;
(2) that Your Content is accurate; and
(4) that it will not cause injury to any person or entity. We take no responsibility and assume no liability for any content or materials submitted or posted through the Website or the App, including any forums, by You or any third party.
Posted Review Policy.
You agree not to post reviews using the App or on the Site that are not based upon your personal experience or are otherwise designed for any purpose other than providing other users on the Site or the App with an accurate description of your personal experience.
Reviews based on secondhand, non-personal experience are not allowed. In addition to the other restrictions contained in the Acceptable Use Policy and these Terms of Service, reviews posted on the Site or using the App must not:
(a) be written exclusively in capital letters,
(b) be plagiarized,
(c) contain spam or advertisements,
(d) CONTAIN PERSONALLY IDENTIFYING INFORMATION ABOUT ANY PERSON,
(e) contain detailed or sexual descriptions of an individual’s physical appearance or lewd personal attacks against a specific individual or group of individuals affiliated with an entity, product, service or good being reviewed,
(f) contain references to businesses or such businesses’ competitors other than the product or business being reviewed, or
(g) contain unrelated personal grievances. If you are an owner, consultant, agent, volunteer, or employee of or for a business you may not post reviews about your business or products or about your competitors’ businesses or products.
WE RESERVE THE RIGHT TO REMOVE ANY OF YOUR CONTENT OR ANY CONTENT THAT WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE WEBSITE. CONTENT INAPPROPRIATE FOR POSTING INCLUDES BUT IS NOT LIMITED TO A VIOLATION OR BEACH OF THE ACCEPTABLE USE POLICY IN THESE TERMS OF SERVICE.
Monitoring, Suspension, and Termination.
(a) We reserve the right to review any of Your Content (including any image files, posts and reviews), investigate, and/or take appropriate action against You in Our sole discretion (including removing or modifying Your Content, terminating Your KUSHY account, and/or reporting You to law enforcement authorities) if We in Our sole discretion suspect that You have violated the Acceptable Use Policy or any other provision of this Agreement or otherwise create, directly or indirectly, liability for Us or any other person.
(b) WE REVIEW YOUR CONTENT THAT HAS BEEN REPORTED TO BE INAPPROPRIATE AND, IF IN OUR SOLE DISCRETION, WE DETERMINE THAT YOUR CONTENT VIOLATES THESE TERMS OF SERVICE INCLUDING THE ACCEPTABLE USE POLICY OR ANY POLICIES OF APPLE OR GOOGLE, WE WILL REMOVE YOUR CONTENT AND MAY SUSPEND OR TERMINATE YOUR ACCOUNT.
Notice of Infringement; Digital Millennium Copyright Act.
(a) Anyone who believes that his or her work has been reproduced on the Website or the App in a manner which constitutes copyright infringement may submit a notification to KUSHY’ copyright agent in accordance with the Digital Millennium Copyright Act (the "DMCA"), by providing the following information in writing:
(1) identification of the copyrighted work that is claimed to be infringed;
(2) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Website or the App; (
3) information for Our copyright agent to contact You, such as an address, telephone number, and, if available, e-mail address;
(4) a statement that You have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
(5) a statement that the information above is accurate, and under penalty of perjury, that You are the copyright owner or the authorized person to act on behalf of the copyright owner; and
(6) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed. If You are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, "trademark") by notating this in Your written notice. You acknowledge that if You fail to comply with all of the requirements for a notice of infringement as specified above,
Your DMCA notice may not be valid.
(b) Notices of copyright infringement claims should by email to email@example.com. We will respond expeditiously to claims of copyright infringement using the email or the App that are reported to Our copyright agent in the notification explained above. It is Our policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who infringe copyrights or intellectual property rights of others.
(c) If You believe that any of Your Content that was removed (or to which access was disabled) after We received a notice of copyright infringement is not actually infringing, or that You have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, You may send a counter-notice containing the following information to Our copyright agent:
(1) Your physical or electronic signature (with Your full legal name);
(2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
(3) a statement that You have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; and
(4) Your name, address, telephone number, and email address, and a statement that You will accept service of process from the person who provided the original notification of the alleged infringement.
(d) If a counter-notice is received by Our copyright agent, We may send a copy of the counter-notice to the original complaining party informing that person that We may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) business days or more after receipt of the counter-notice, at Our sole discretion. Please understand that filing a counter-notification may lead to legal proceedings between You and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in Your country if You make a false or bad faith allegation by using this process.
(e) Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf.
THIRD PARTY TERMS AND PROVIDERS.
Apple App Store Terms. The following terms and conditions apply to You only if You are using the App from the Apple App Store. To the extent the other terms and conditions of these Purchase are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that these Terms of Service are solely between You and KUSHY, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple may refund the purchase price, if any, for the App to You. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms of Service. You and KUSHY acknowledge that Apple is not responsible for addressing any claims of You or any third party relating to the App or Your possession and/or use of the App, including, but not limited to:
(1) product liability claims;
(2) any claim that the App fails to conform to any applicable legal or regulatory requirement; and
(3) claims arising under consumer protection or similar legislation.
You and KUSHY acknowledge that, in the event of any third party claim that the App or Your possession and use of that App infringes that third party’s intellectual property rights, KUSHY, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service. You must comply with applicable third party terms of agreement when using the App.
You and KUSHY acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service as they relate to Your license of the App, and that, upon Your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against You as a third party beneficiary thereof.
Mobile Software from Google Play Store. If You acquire the App from Google, Inc. or one of its affiliates ("Google") via Google Play or its successor(s), then to the extent of any conflict between the Google Terms of Service and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the "Google Play Terms"), and the other terms and conditions in these Terms of Service, the Google Play Terms shall apply with respect to Your use of any App that You acquire from Google Play. KUSHY and You hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by KUSHY or You (or any other user) under these Terms of Service or the Google Play Terms.
WARRANTY DISCLAIMER; LIMITATION OF LIABILITY.
Warranty Disclaimer. THE WEBSITE AND THE APP ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KUSHY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. KUSHY DOES NOT WARRANT THAT:
(1) THE WEBSITE OR THE APP WILL MEET YOUR REQUIREMENTS;
(2) OPERATION OF THE WEBSITE OR THE APP WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE;
(3) THE WEBSITE OR THE APP WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE; OR
(4) DEFECTS IN THE WEBSITE OR THE APP CAN OR WILL BE CORRECTED. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE WEBSITE AND THE APP, AND ANY THIRD PARTY PRODUCTS, GOODS OR SERVICES REMAINS SOLELY WITH YOU. TO THE FULLEST EXTENT PERMITTED BY LAW, KUSHY DISCLAIMS, ALL LIABILITY WITH RESPECT TO ACTIONS YOU MAY TAKE OR DO NOT TAKE BASED ON YOUR CONTENT OR USE OF THE WEBSITE OR THE APP.
Limitation of and Release from Liability.
(a) TO THE MAXIMUM EXTENT ALLOWABLE BY LAW YOU SHALL RELEASE AND HEREBY RELEASE AND FOREVER DISCHARGE US (AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SHAREHOLDERS AND ASSIGNS) FROM, AND SHALL WAIVE AND HEREBY WAIVE AND RELINQUISH YOUR RIGHTS WITH RESPECT TO, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE (INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE), THAT IS CONNECTED TO OR HAS ARISEN OR ARISES DIRECTLY OR INDIRECTLY OUT OF, OR RELATES DIRECTLY OR INDIRECTLY TO, ANY INTERACTIONS WITH, OR ACT OR OMISSION OF, OTHER WEBSITE OR APP USERS OR THIRD PARTY MATERIALS.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KUSHY BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF PROFITS, REVENUE OR INCOME, OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING FROM OR RELATED TO THESE TERMS OF SERVICE OR THE USE OR INABILITY TO USE THE WEBSITE OR THE APP, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL KUSHY’S TOTAL AGGREGATE LIABILITY UNDER THESE TERMS OF SERVICE REGARDING USE OR INABILITY TO USE THE WEBSITE OR THE APP, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF:
(1) THE AMOUNTS, IF ANY, YOU PAY TO KUSHY UNDER THESE TERMS OF SERVICE FOR USE OF THE WEBSITE OR THE APP; OR (II) FIVE DOLLARS ($5.00). BY ACCESSING THE WEBSITE OR THE APP, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.
By agreeing to these Terms of Service and using the Website or the App, You agree that You shall, to the maximum extent permitted by applicable law, defend, indemnify and hold KUSHY, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
(1) Your violation or breach of any term of these Terms of Service or any Applicable Law or regulation;
(2) Your violation of any rights of any third party;
(3) any unauthorized use of the Website or the App; (4) Your negligence or willful misconduct; or
(4) Your use of the Website and the App.
ARBITRATION AND CLASS ACTION WAIVER.
Binding Arbitration. Any dispute or claim arising in any way from Your use of the Website or the App, except for disputes relating to the infringement of Our intellectual property rights or the access or use of the Website or the App in violation of these Terms of Service, will be resolved by binding arbitration, rather than in court.
No Judge or Jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, 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 these Terms of Service as a court would.
Arbitrator and Rules. The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings shall be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer¬ Related Disputes. These rules can be found on the AAA website at www.adr.org.
Starting an Arbitration.
To begin an arbitration proceeding, You must send Us a notice of dispute, in writing, setting forth Your name, address and contact information, the facts of the dispute and relief requested. You must send Your notice of legal dispute to Us at the following address:
5431 Auburn Blvd #131
Sacramento CA 95841
KUSHY will send any notice of dispute to You at the contact information We have for You.
Format of Proceedings. The arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
Fees. If You initiate arbitration, Your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, each party shall pay its own AAA and arbitrator’s fees and expenses. If the arbitrator finds the arbitration to be frivolous or brought for an improper purpose, then You agree to pay all costs and expenses connected to the arbitration.
Individual Basis. To the fullest extent permitted by applicable law, You and KUSHY each agree that any dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, You and KUSHY each waive any right to a jury trial. As a result,
PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS. IN THIS EVENT, YOU AGREE THE SOLE PROPER FORUM AND VENUE IS A STATE COURT OF COMPETENT JURISDICTION LOCATED IN SACRAMENTO, CALIFORNIA.
Limitation Period. In no event shall any claim, action or proceeding by You or KUSHY be instituted more than one (1) year after the cause of action arose.
Enforcement. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Invalidity. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, or if you opt out as provided for in Section 6.11, You and KUSHY each agree to the exclusive jurisdiction of a State court of competent jurisdiction located in Denver, California, and You and KUSHY each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
If You do not want to arbitrate disputes with KUSHY and You are an individual, You may opt out of this arbitration agreement by sending an email to KUSHYAPPLICATION@GMAIL.COM within thirty (30) days of the first of the date You access or use the Website or the App.
Termination. If You breach any of the terms of these Terms of Service, without regard to whether such breach is material or results in a material adverse effect, all licenses granted by Us, including permission to use the Website and the App, will terminate automatically. Your duty to indemnify Us survives any termination. Additionally, We may suspend, disable, or delete Your Account, the Website or the App (or any part of the foregoing) with or without notice, for any or no reason. If We delete Your Account for any suspected breach of these Terms of Service by You, You are prohibited from re-registering for the Website or the App under a different name. All sections which by their nature should survive the termination of these Terms of Service shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by KUSHY or You. Termination will not limit any of KUSHY’s other rights or remedies at law or in equity. Article 5.3, Indemnification and any other provision by its nature is intended to survive termination, does survive termination of this Agreement.
You agree that a breach of these Terms of Service will cause irreparable injury to KUSHY for which monetary damages would not be an adequate remedy and KUSHY shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
Notices. We may give notice to You by means of a general notice on the Website, the App, electronic mail, or by written communication sent by first class mail or pre-paid post. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Us (such notice shall be deemed given when received by Us) at any time by sending an email to firstname.lastname@example.org. Please specify the reason for the email in the subject line so it can be forwarded to the proper department.
U.S. Government Sanctions. You represent and warrant that:
(1) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
(2) You are not listed on any U.S. Government list of prohibited or restricted parties
These Terms of Service may not be modified except by a writing executed by the duly-authorized representatives of KUSHY and it may do so in its sole discretion. No other act, document, usage or custom will be deemed to modify or amend these Terms of Service. These Terms of Service will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms of Service and the licenses granted hereunder may be assigned by KUSHY but may not be assigned by You without the prior express written consent of KUSHY. Any attempt by You to assign these Terms of Service without the written consent of KUSHY shall be null and void. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms of Service will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms of Service due to any cause beyond the reasonable control of the party invoking this provision, the affected party's performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein will not be considered to be part of the Terms of Service but are for convenience only. You and KUSHY agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms of Service. In the event of any dispute with or involving KUSHY, the laws of the State of California, excluding any conflicts and choice of law rules, exclusively govern these Terms of Service, Your use of the Website and the App and Your rights. Your use of the Website and the App may also be subject to other local, state, national, or international laws.
We may occasionally update these Terms of Service. When We do update these Terms of Service, We will also revise the “Last Updated” date at the top of these Terms of Service. If We make changes to these Terms of Service that, in Our discretion, We consider significant, We will post the updated Terms of Service on the App and We may also send emails to Our users who have created an Account containing a link to the revised Terms of Service.
If You continue to use the Website or the App after We post an update to these Terms of Service, You indicate Your acceptance of the updated Terms of Service.
If You have any questions regarding these Terms of Service the Website or the App please contact Us at email@example.com