Last Modified on December 9, 2018
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Kohmee is a cloud-based platform that can be accessed on from a desktop or mobile device and provides recipe and menu management tools for culinary professionals.
You must agree to this ToU in order to use the Site and/or the Service. BY AGREEING TO THESE TERMS (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS TOU AND AGREE TO ALL OF ITS RESPECTIVE TERMS AND CONDITIONS. Also, by agreeing to this ToU (including by a click-through or other agreement), you are waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non-electronic records in order for a contract to be legally binding. If you use any aspect of the Site and/or the Service, or click to accept or agree to this ToU if presented to you in a user interface for the Site and/or the Service, we will understand this as your acceptance of this ToU and your agreement to all of its terms and conditions. By accepting this ToU or using any aspect of the Site and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use any aspect of the Site or the Service.
BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. With limited exceptions, YOU AGREE TO WAIVE YOUR RIGHT TO GO TO COURT and that all disputes between you and Kohmee arising out of or relating to this ToU, the Site or any aspect of the Service will be resolved by BINDING ARBITRATION. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the section below entitled “Binding Arbitration” for more details regarding your obligation to resolve any disputes in arbitration.
- ToU Updates. Kohmee may update this ToU at any time, and Kohmee will post the updated version of this ToU on the Site. You understand and agree that you will be deemed to have accepted the updated ToU if you use the Site or any aspect of the Service after the updated ToU is posted. If Kohmee makes any material change to this ToU, we will make reasonable efforts to notify you of the change, such as by sending an email to the address associated with your account, through a pop-up window on the Site, or other similar mechanism. Disputes arising under this ToU will be resolved in accordance with the version of the ToU in place at the time the dispute arose. We encourage you to review this ToU frequently to stay informed of the latest modifications to the Site and Service. If at any point you do not agree to any portion of this ToU then in effect, you must immediately stop using the Site and the Service.
- Provision of the Service. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Site and the Service. You acknowledge and agree that Kohmee may make changes to the Site or any aspect of the Service at any time without notifying you in advance.
- Termination of Service. Kohmee reserves the right to deny service to any person or entity at Kohmee’s sole and absolute discretion. You acknowledge and agree that Kohmee may stop providing the Site or the Service or restrict your use of the Site or the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU or if Kohmee suspects that you have used any aspect of the Site or the Service to conduct any fraudulent or illegal activity. If Kohmee disables your access to your account, you may be prevented from accessing the Site or the Service, your account details or any materials contained in your account.
- Accounts and Security.
- Account. You do not need to create an account to visit the Site, but you must create an account to access and utilize certain aspects of the Service. You can create an account by completing the registration process. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to Kohmee will be correct, accurate and up to date.
- Social Networks. By linking your Kohmee account with any social network account, including without limitation Facebook or Google+ (each a “Social Network” and collectively the “Social Networks”), you expressly authorize Kohmee to receive certain of your information that is available on your Social Network accounts, including, without limitation, your profile information, friends’ names, your photos, privacy settings, your payment information associated with your account and certain other information that may be disclosed pursuant to your authorization during the login process. Kohmee is made available by Kohmee and its affiliates. Social Networks are made available by their respective corporate entities.
- Fees. You agree to pay all applicable fees and taxes incurred by you or anyone using your account. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Unless otherwise noted, all payments are to be made in the currency in which your order is placed. Kohmee may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting a link to an update of this ToU or posting such changes elsewhere on the Site. These payment terms are subject to change without prior notice at any time. If there is a dispute regarding your payment of fees, or the Service, Kohmee shall have the right to terminate your account without prior notice. For the avoidance of doubt, if you purchase a monthly (or other periodic) Subscription (as defined below), you agree and acknowledge that your Subscription has an initial and recurring payment charge at the then current subscription rate, and you accept responsibility for all recurring charges prior to cancellation, including where applicable any charges processed by Kohmee after the expiration date of your payment card. YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
- Free Trial Period. Kohmee may offer you a free trial of certain paid aspects of the Service (“Free Trial”) for a specified period of time. The terms of your Free Trial will be provided at signup and your use of the Free Trial is subject to your compliance with such terms. Free Trials may not be combined with any other offer. Except as may otherwise be provided in the terms of the Free Trial offer, Free Trials are only available to users who have not previously subscribed to the Service. When you accept a Free Trial, you agree to sign up for a Subscription unless you cancel your Subscription prior to the end of the Free Trial, and at the expiration of the Free Trial we (or our third-party payment processor) will begin charging your payment method on a recurring basis for the Subscription Fee (as defined below) until you cancel your Subscription. We reserve the right to modify or terminate Free Trials at any time, without notice and in our sole discretion. It is very important to understand that you may not receive a notice that your free trial has ended and that payment for your Subscription is due. TO PREVENT ANY CHARGES AFTER YOUR FREE TRIAL EXPIRES, YOU MUST TURN OFF AUTO-RENEWAL OF YOUR SUBSCRIPTION IN YOUR SETTINGS PRIOR TO THE LAST DAY OF YOUR FREE TRIAL PERIOD.
- Subscription Payment. After the free trial period, you will be required to purchase a subscription (“Subscription”) to access certain premium content and portions of the Service. When you purchase a Subscription, you expressly authorize us (or our third-party payment processor) to charge you for such transaction. We may ask you to supply additional information relevant to your transaction, including without limitation your credit card number, the expiration date of your credit card and your email and billing addresses for billing and notification (collectively, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information.
- Payments. You authorize Kohmee to charge all sums for orders that you make to the payment method designated in your account. If you fail to pay any fees or charges when due, services or privileges may be suspended or terminated. You shall be responsible and liable for any fees, including attorneys’ fees and collecting costs, that Kohmee may incur in its efforts to collect any unpaid balances from you. If you purchase a Subscription, you will be charged the applicable Subscription fee, plus any applicable taxes and fees (collectively, the “Subscription Fee”), at the beginning of your Subscription and upon the commencement of each subscription period (as specified when you purchase such Subscription) thereafter, at the then-current Subscription Fee. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each period on or about the applicable anniversary of the calendar day of the commencement of your Subscription, using the Payment Information you have provided, until you cancel your Subscription. By agreeing to this Agreement and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Kohmee. Your Subscription continues until cancelled by you or we terminate your access to or use of the Service or Subscription in accordance with this Agreement.
- Subscription Cancellation. If you purchased a Subscription through your account, you may cancel your Subscription at any time by disabling the auto-renewal settings in your account settings. Your Subscription will then terminate at the end of your current Subscription period. HOWEVER, ANY TRANSACTION YOU INITIATE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR SUBSCRIPTION FEE AT ANY TIME. If something unexpected happens in the course of completing a transaction, we reserve the right to cancel your transaction for any reason; if we cancel your transaction, we will refund any payment you have already remitted to us for such transaction. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. You will be responsible for all Subscription Fees incurred for the then-current Subscription period. If you cancel, your right to use the Service will continue until the end of your then current subscription period and will then terminate without further charges.
- Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password and for all activities that are conducted via your account. You agree to notify Kohmee immediately if you become aware of any unauthorized use of your password or of your account.
- Account Sharing or Transfers. Accounts are registered to you personally, either directly or through your employer or other third party, and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account with, or disclose your password to, anyone else.
- Cancellation by You. You have the right to cancel your account at any time. You may cancel your account by following the cancel link available on the Site or by contacting our customer service department via email at [firstname.lastname@example.org]. Once you cancel your account, your personal information will no longer be viewable by other users. However, content previously shared with other users may remain viewable by those users until they delete such content.
- Termination by Kohmee. Kohmee may at any time terminate your account if:
a. Kohmee determines that you are (i) in breach of or otherwise acting inconsistently with this ToU or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to Kohmee;
b. Kohmee determines it is required by law to terminate your account; or
c. Kohmee decides to stop providing the Service or critical portions of the Service.
12. Effect of Account Termination or Cancellation. If you voluntarily terminate your account or allow your account to lapse, you may reactivate your account any time by logging in to the Service through the Site and reactivating the account and, if applicable, paying any outstanding subscription Fee owed under the account. However, you will have read-only access to any information or content you have submitted to the Site. Users whose accounts are terminated by Kohmee for any type of abuse including, without limitation, a violation of this ToU, are prohibited from creating any additional accounts. Kohmee may also in its sole discretion, and at any time, modify or discontinue providing the Service or any part thereof, with or without notice. Additionally, you agree that Kohmee shall not be liable to you or any third-party for any interference with, or termination of, your access to the Service.
13. Use Requirements.
0. License Grant. Subject to the terms and conditions of this ToU, Kohmee hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to use the Site and Service, solely in connection with your use of the Service on compatible devices that you own or control and in accordance with this ToU and any rules, restrictions or documentation set forth by Kohmee from time to time. Kohmee reserves all rights not expressly granted to you.
1. Updates. Kohmee may require that you download and install updates to the Service from time to time. You acknowledge and agree that Kohmee may update the Site or the Service from time to time with or without notifying you and may add or remove features or functions to the Site or the Service at any time in its sole discretion. You acknowledge and agree that Kohmee has no obligation to make the Site or the Service available to you, make any subsequent versions of the Site available to you or to continue to support the Site or the Service in any way. You acknowledge that your access to the Site and the Service may not be continuous, features may change during your use of the Site and the Service, and Kohmee may terminate your access to the Site and the Service or stop offering the Site and the Service at any time.
14. Restrictions and Conditions of Use.
0. Use of the Service. Kohmee permits you to view and use the Site and the Service solely for your own limited commercial use in accordance with the intended use of the Service. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Site or the Service. Kohmee reserves the right to add or remove information, content or Service from the Site at any time at its sole discretion.
1. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers) and you agree to comply with the instructions contained in any robots.txt file present on the Site or the Service.
2. No Violation of Laws. You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Site or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
3. Use Restrictions. You may not connect to or use the Site or the Service in any way that is not expressly permitted by this ToU.
b. Without limiting the generality of the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Site or the Service (or any servers, systems or networks connected to the Site or the Service) or otherwise attempt to obstruct, limit the functionality, disrupt or interfere with the operation of the Site or the Service or any other person’s or entity’s use of the Site or the Service (or any servers, systems or networks connected to the Service); (ii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content displayed on or through the Service or transmitted through the use of any of the Service; (iii) attempt to gain unauthorized access to the Site, the Service, user information, or any servers, systems or networks connected to the Site or the Service; (iv) use the Site or the Service for any commercial purpose unless consistent with this ToU and the intended use of the same, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Site or the Service, unless you are specifically authorized to do so in a separate written agreement with Kohmee; (v) use the Site or the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (vi) use the Site or the Service to perform any unsolicited commercial communication not permitted by applicable law; or use the Site or the Service to upload, post transmit promotional materials, junk mail, spam or other form of solicitation; (vii) or use the Site or the Service to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
c. Without limiting the generality of the foregoing, you agree that you will not use the Site or the Service for any other unlawful, prohibited, abnormal or unusual activity as determined by Kohmee in its sole discretion.
4. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Site or the Service including, without limitation, email addresses or mobile phone numbers of other account holders or other data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Site or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, interfere with, damage or disassemble, any aspect of the Site or the Service.
5. Violation of this ToU. You acknowledge and agree that you are solely responsible, and Kohmee has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. Kohmee may at its option, immediately terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 6 or any other terms of this ToU.
0. Links from the Site. The Site may contain links to websites operated by other parties. Kohmee provides these links to other websites or services as a convenience and use of these websites or services is at your own risk. The linked websites or services are not under the control of Kohmee and Kohmee is not responsible for the content available on the other websites or services. Such links do not imply Kohmee’s endorsement of information or material on any other website or service and Kohmee disclaims all liability with regard to your access to and use of such linked websites or services. You understand and acknowledge that your access and use of linked websites and the services provided through these websites is governed by the terms of service and other agreements posted on such websites.
1. Links to the Site and Service. Unless otherwise set forth in a written agreement between you and Kohmee, you must adhere to Kohmee’s linking policy as follows: (a) the appearance, position and other aspects of any link to the Site or the Service may not be such as to damage or dilute the goodwill associated with Kohmee's or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Kohmee; (c) you may not remove any trademarks, copyright notices or any other notice contained in any content, materials or individual elements provided on or through the Service; (d) when selected by a User, the link to the Site must display the Site on full-screen and not within a “frame” on the linking website. Kohmee reserves the right to revoke its consent to the link at any time and in its sole discretion. Further, you must include the name of the provider of the recipe or menu and hyperlink to the recipe’s source or menu’s source located within the Kohmee Site or Kohmee Service.
16. Intellectual Property.
0. Trademarks. Kohmee’s name and logo are trademarks and service marks of Kohmee. Unless permitted in a separate written agreement with Kohmee, you do not have the right to use any of Kohmee’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
1. Ownership.You acknowledge and agree that Kohmee, or its licensors, owns all right, title and interest in and to the Site and the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Service is protected by U.S. and international copyright laws. The owners and licensors of content made available through the Site or Service are intended third-party beneficiaries of this ToU and shall have the right to enforce this ToU against you and invoke all rights hereunder including limitations of liability. The delivery of a product or content does not transfer to you any commercial or promotional use rights n the product or content. Further, you acknowledge that the Site or Service may contain information that Kohmee has designated as confidential and you agree not to disclose such information without Kohmee’s prior written consent.
2. Copyright Agent. Kohmee respects the intellectual property rights of others, and requires that people who use the Site and the Service do the same. Kohmee maintains a policy of terminating users of the Site and the Service who engage in repeated infringing conduct. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
1300 SOUTH FARM VIEW, # J-35
DOVER, DE 19904
9. Feedback. You may choose to, or Kohmee may invite you to, submit comments, bug reports, ideas or other feedback about the Site and/or the Service (“Feedback”). By submitting Feedback, you agree that Kohmee is free to use such Feedback at its discretion without any obligation to you. Kohmee may also choose to disclose Feedback to third parties. You hereby grant Kohmee a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights.
11. Location. The Site and the Service are operated by Kohmee in the United States. If you choose to access the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
12. Submitted Content.
- Kohmee is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service or any materials submitted or made available through the Service via any function which allows a user to post or share content (“Submitted Content”). By using the Service, you agree that your Submitted Content may be viewable by other users of the Service. Submitted Content is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do not submit material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. Kohmee may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its customers, or otherwise enforce the terms of this ToU. Further, Kohmee may in its sole discretion remove such content and terminate your account if you submit any content that is in breach of this ToU.
- Kohmee does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you grant Kohmee a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Service and Kohmee’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each user of the Service a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You may take down any of your Submitted Content at any time; however, you acknowledge and agree, that Kohmee may still have access to such Submitted Content and that the above license granted by you to Kohmee will remain in effect despite your removal of the Submitted Content from the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 12.2.
- You acknowledge that your Submitted Content is your sole responsibility. You agree that, under no circumstances, will Kohmee be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
- You acknowledge that Kohmee has the right to pre-screen your Submitted Content, but has no obligation to do so. At Kohmee’s sole discretion, any Submitted Content may be included in the Service in whole or in part in modified form. In addition, Kohmee and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Site or the Service that violates this TOU or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property.
- You acknowledge and agree that: (a) by using the Site or the Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (b) you are solely responsible for, and Kohmee has no responsibility to you or any third party for any Submitted Content that you create, submit, post or publish on the Site or through the Service; (c) Kohmee does not guarantee any confidentiality with respect to your Submitted Content; and (d) Kohmee is not responsible for any Submitted Content provided by third parties that you may have access to through your use of the Service and all Submitted Content is the responsibility of the person from whom such Submitted Content originated. You acknowledge and agree that (i) Kohmee has no control over and is not responsible for the use of Submitted Content by its users, including any user that has uploaded Submitted Content to a personal device; and (ii) Kohmee may not be able to remove Submitted Content that is uploaded onto a user’s device. Kohmee does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content.
13. Children. The Site and the Service are not directed toward children under 13 years of age, and Kohmee does not knowingly collect information from children under 13 or allow them to create an account or access account features or the Service. If you are under 13, please do not submit any personal information about yourself to Kohmee.
14. Advertisers. Each party providing an advertisement or sponsored posting on the Site (“Advertiser”) represents and warrants that (a) it has full power and authority to enter into transactions and market, advertise, distribute, promote, reproduce, offer for sale and sell the properties and to use all marks, names and designs used in connection with the foregoing; and (b) the property information, documentation and specifications that the Advertiser has provided to Kohmee is accurate, true, correct, complete and not misleading. Kohmee shall not be responsible for monitoring whether the advertisements or sponsored postings by Advertisers are accurate and does not guarantee that such advertisements or promotions are being honored.
15. Disclaimer of WarrantIES.
- YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SITE AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KOHMEE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
- KOHMEE MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE.
- KOHMEE DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SITE OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SITE AND THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SITE OR THE SERVICE WILL BE CORRECTED; OR (e) THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CHECKPLIS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
16. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KOHMEE AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS, AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “RELATED PARTIES”) SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
a. ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE OR THE SERVICE, EVEN IF KOHMEE OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
c. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SITE OR THE SERVICE.
- WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF KOHMEE OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Kohmee and the Related Parties shall be limited to the fullest extent permitted by law.
17. Indemnification. You agree to defend, indemnify and hold Kohmee and the Related Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Site or the Service; or (b) your breach of this ToU or any other policies that Kohmee may issue for the Site or the Service from time to time. You further agree to cooperate as required by Checkplis in the defense of any claim. Checkplis reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Checkplis.
18. Governing Law; Jurisdiction. This ToU is governed by the laws of California, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Kohmee agree that, except as otherwise provided in Section 19 below, the state and federal courts located in Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Site or the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, Kohmee shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
19. Binding Arbitration.
- Arbitration Procedures. You and Kohmee agree that, except as provided in Section 19.5 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 19 and the JAMS Rules, the terms in this Section 19 will control and prevail.
- Except as otherwise set forth in Section 19.5, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Kohmee will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and Kohmee may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
- Location. The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone or internet connection appearances.
- Limitations. You and Kohmee agree that any arbitration shall be limited to the Claim between Kohmee and you individually. YOU AND KOHMEE AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
- Exceptions to Arbitration. You and Kohmee agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of Kohmee’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
- Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
- Severability; Survival. You and Kohmee agree that if any portion of this Section 19 is found illegal or unenforceable (except any portion of Section 19.4), that portion shall be severed and the remainder of the section shall be given full force and effect. If Section 19.4 is found to be illegal or unenforceable then neither you nor Kohmee will elect to arbitrate any Claim falling within that portion of Section 19.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Los Angeles, California, United States of America, and you and Kohmee agree to submit to the personal jurisdiction of that court. This Section 19 shall survive any termination of this ToU or your relationship with Kohmee.
- ToU Revisions. This ToU may only be revised in a writing signed by Kohmee, or published by Kohmee on the Site.
- No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Kohmee as a result of this ToU or your use of the Service.
- Assignment. Kohmee may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without Kohmee’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
- Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
- Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, except as otherwise provided in Section 19.6, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
- No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Kohmee of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
- Notices. All notices given by you or required under this ToU shall be in writing and sent to email@example.com.
- Equitable Remedies. You acknowledge and agree that Kohmee would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
- Entire Agreement. This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and Kohmee with respect to the Site and the Service and supersedes any and all prior agreements between you and Kohmee relating to the Site or the Service.