Last updated: August 31, 2023
THESE TERMS CONTAIN PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS. THIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, IF ANY, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. IF YOU DO NOT AGREE TO ANY PART OF THESE TERMS, THEN PLEASE DO NOT MAKE ANY PURCHASE FROM THE KIN OR VISIT OR USE THE WEBSITE, THE APPLICATION, OR USE ANY OF THE SERVICES.
1. Use of Website, Application, and Services
You may only use the Website, Application, and Services within the United States or Canada (as specified by us) and for your own personal, non-commercial use. To use certain features of the Service, you must sign up for an account with The Kin by downloading the Application from the Apple App Store or Google Play and, if applicable, pay any fees associated with such account. The Services may not function properly if you do not keep your account current and up-to-date and pay any fees due.
Subject to the terms and conditions of this Agreement, The Kin provides Services that have been selected by you, solely for your own personal, non-commercial use, and not for the use or benefit of any third party. The "Services" include, without limitation, use of the Website or Application, any service The Kin performs for you, and the Content (defined below) offered on the Website and the Application. We may change, suspend, or discontinue the Website, the Application, or any Services at any time, including the availability of any feature, database, or Content. We may also impose limits on certain features and services or restrict your access to parts or all of the Website, the Application, or the Services without notice or liability to you.
2. Provider Services
The Kin’s Services might include providing you the opportunity to schedule appointments for services offered by third-party providers (“Providers”) and payment technology to help you pay for products and services offered by those Providers (“Provider Services”). The Kin does not refer, recommend, or endorse any particular Provider, company, brand, individual, entity, opinion, or other information that appear through the Services. We do not make any representations or warranties with respect to these Providers or the quality of the Provider Services; and we are not responsible for ensuring that information (including credentials and availability) a Provider provides (“Provider Content”) is accurate or updated. If you rely on any content, text, data, graphics, images, photographs, video, audio, information, suggestions, articles, scheduling availability, guidance, and other materials provided, made available, or otherwise found through the Services, you do so solely at your own risk.
In addition, The Kin may give you the opportunity to upload and store your pet’s veterinary records. If you submit a request through the Application, The Kin may also contact your pet’s veterinarian directly to request veterinary records on your behalf. When you submit a request through the Application, you expressly authorize The Kin to request, receive, collect, and store your pet’s records and data. We are not liable for any third party’s veterinary records. The Kin has no obligation to ensure that the records provided by third-party veterinarians are accurate or up-to-date, and we undertake no obligation to update the records we store.
3. The Kin Does Not Provide any Veterinary Medical Advice or Recommendations
The Website, Application, and/or Services may allow you to connect remotely with veterinarians, behavioral or nutritional specialists, and veterinary technicians (“Veterinary Professionals,” which shall constitute “Providers” for purposes of these Terms), and/or to interact with a chatbot, to get answers to general pet care questions and information that may help you decide whether it is prudent to seek immediate in-person veterinary attention. Your use of these features, and the information you receive from the Veterinary Professionals and/or chatbot, does not create a veterinary-client patient relationship, is not a substitute for an in- person visit with a veterinarian, and is not intended to provide a specific diagnosis or treatment plan for your pet. Any information or records that you provide to a Veterinary Professional or upload to the Website, Application, and/or Services will not be treated as confidential. Your electronic (including audio and video) and phone communications with the Veterinary Professionals are not confidential or privileged.
The Kin does not practice veterinary medicine, veterinary technician services, or any other licensed profession, nor does The Kin interfere with the practice of veterinary medicine, veterinary technician services, or any other licensed profession by the Veterinary Professionals or any Provider, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license. Neither The Kin nor any of its affiliates shall be liable for any damages caused by the advice you or your pet obtains from the Veterinary Professionals or chatbot or the decisions you make after using these features.
WHILE YOU MAY SEEK AND ACCESS INFORMATION ABOUT CARING FOR YOUR PET THROUGH THE WEBSITE, APPLICATION, AND/OR SERVICES, PLEASE BE ADVISED THAT THESE DO NOT CONSIST OF, CONTAIN, OR PROVIDE VETERINARY MEDICAL ADVICE. RELIANCE ON ANY INFORMATION PROVIDED BY OR FOUND ON THE WEBSITE, APPLICATION, OR SERVICES IS PURELY AT YOUR OWN RISK. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OR LOSSES RELATED TO ANY VETERINARY MEDICAL ADVICE PROCURED THROUGH THE WEBSITE, APPLICATION, OR SERVICES.
FURTHER, YOU ARE RESPONSIBLE FOR CHOOSING YOUR OWN PROVIDER (INCLUDING VETERINARY PROFESSIONALS). WE MAKE NO CLAIMS OR GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROVIDER (INCLUDING THE PROVIDER’S QUALIFICATIONS OR AVAILABILITY), PROVIDER SERVICES, OR CONTENT (INCLUDING PROVIDER CONTENT). WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY PROVIDER CONTENT.
4. User Restrictions
You represent and warrant to us that: (i) you are an individual (i.e., not a corporation or other legal entity) and you are of legal age to form a binding contract; (ii) all information you submit to the Kin, including registration information, is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the Website, the Application, and the Services and you take full responsibility for the selection and use of and access to the Website, the Application, and the Services. This Agreement is void where prohibited by law, and the right to access the Website, the Application, and/or the Services is revoked in such jurisdictions.
You shall not: (a) distribute, market, resell, transfer, or allow any other individual (other than those in the same household) to use the Services; (b) use the Services in connection with any products or services not supplied or provided by The Kin or otherwise approved by The Kin in writing; (c) remove any proprietary notices, labels, or marks on or in the Application, Services, or Website; (d) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Application, Services, or Website; or (e) use the Application, Services, or Website in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance, by-law, or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities or sales without The Kin’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including, without limitation, any employee or representative of The Kin; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Website or the Application is strictly prohibited. You are responsible for your activity in connection with the Website, Application, and the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Website, Application, or the Services.
By using the Services, you acknowledge the existence and validity of, and agree to be bound by, all terms of this Agreement, including the EULA set forth below for the software embedded in the Services (“Software”). You shall not copy, decompile, disassemble, reverse engineer, or manipulate any technology in, or otherwise modify or tamper with, any Services or equipment used to receive the Services. Nothing under this Agreement or the fact that you have access to and use of the Services gives you any right, title, or interest or license in or to any technology, software, or content, or any intellectual property rights in any of the foregoing, available with the Services. You shall not have any right, title or interest or license to reproduce or otherwise use our or any third party’s trademarks, service marks, graphics, or logos. You may not, and you agree that you shall not, copy or otherwise tamper with any software or content available with the Services or Software.
Further, all materials displayed or performed on the Website, Application, and/or Services, including, without limitation, text, graphics, articles, photographs, images, and illustrations (the "Content") are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Website, Application, and/or the Services, and you shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any right of The Kin or any third party. The Website, Application, and Services are protected by copyright as collective works and/or compilations, pursuant to U.S. and international copyright and intellectual property laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this section), create derivative works based on, distribute, perform, display, or in any way exploit any of the Content, Software, Website, Application, or Services in whole or in part. Copying or storing of any Content is expressly prohibited without prior written permission from The Kin or from the third-party copyright holder identified in such Content’s copyright notice. The Kin reserves the right to require prior written consent before linking to the Website.
6. User Account
To use the Website, the Application, or certain Services, you may be required to register with The Kin and select a password and username ("User ID"). You shall provide The Kin with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You shall be responsible for maintaining the confidentiality of your password. If you access the Website, Application, or the Services through a third-party site or service, you will provide your third-party account credentials to The Kin, and you are consenting to have the information in those accounts transmitted into your account.
7. Fees and Payment for Use of The Kin Services
Fees: You shall pay all applicable fees imposed by The Kin in connection with such Services selected by you. The Kin reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email (where required by law) and posted on the Website or Application. Your use of the Services following such notification constitutes your acceptance of any new or increased charges. Unless otherwise expressly set forth herein, any fees paid hereunder are non-refundable.
Billing Details: Your subscription and billing details and cost can be viewed on the Website through the Application. Please visit the Application or contact us at firstname.lastname@example.org if you would like to receive more detailed account history or billing information. You must notify us or change your information via your online account immediately in the event of any change in your name, billing address, service address, email address, telephone number, credit or debit card, or other account information.
Payments: All payments must be made in U.S. Dollars. You may be required to pay in advance by credit card or debit card. All amounts due must be paid by the due date to avoid any late fees and possible deactivation of the Services. We reserve the right to suspend or terminate your access to the Services and report any late payment or non‐payment to credit reporting agencies.
Authorization: By providing a credit card or other payment method accepted by The Kin (“Payment Method”), you expressly agree that we are authorized to keep such Payment Method on file and charge you the fees, charges, or other amounts described above. If you want to use a different Payment Method than the one you signed up to use during registration, or if there is a change in your credit card validity or expiration date, you may edit your Payment Method information by logging in to your account and viewing your account details. When you provide a Payment Method to access your Plan, including in connection with any free or discounted trial offer, our system will attempt to verify the information you entered. We do this by processing an authorization hold, which is standard practice. We do not charge you in connection with this authorization hold. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, you authorize us to continue billing, and you will remain responsible for any uncollected amounts.
Subscription and Automatic Renewal: When you enroll in a subscription, your subscription will continue, and you will be charged on an automatically recurring basis, at the price and frequency you choose at enrollment, until you cancel. Your subscription will automatically renew on your “Renewal Date,” which is the first day following the end of your subscription term, and your subscription will continue to renew on a regular basis. You can cancel your subscription through the Application. You must cancel at least one day before your next Renewal Date to avoid being charged for your next subscription period. If you do not cancel by this deadline, you will be charged for your next renewal period, and your cancellation will be effective after that period. The charge for each subscription will be billed to the payment method you used to create your account, enroll in the subscription program, or as otherwise directed by you. You authorize us to charge the payment method for your subscription orders on an automatically recurring basis until you cancel. You agree to keep your Payment Method updated in your account.
Trial Programs: The Kin may, in its sole discretion, offer free or discounted trial programs that convert into paid automatically renewing subscriptions. By signing up for a trial, you agree to all applicable terms, including the automatic renewal and recurring billing feature. Please read the terms of any trial offers carefully.
8. The Services
Service Plans: YOUR SUBSCRIPTION PACKAGE AND RELATED TERMS ARE YOUR “Plan.” If a term or condition of your Plan expressly conflicts with this Agreement, the term or condition in your Plan will govern. If at any time you change your service, you will be subject to the requirements, such as a new minimum term, associated with that change. Cancellation of your subscription before the expiration of the applicable term may result in a termination fee as detailed in this Agreement and/or your Plan.
Our Rights to Limit or End Your Subscription or this Agreement: Our Rights to Limit or End Your Subscription or this Agreement: You are only permitted to use the Services for personal, noncommercial uses. You agree not to resell or redistribute the Services to someone else without our prior written permission, which we can withhold in our sole discretion. WE CAN, WITHOUT NOTICE, LIMIT, SUSPEND, OR END YOUR SUBSCRIPTION OR ANY CONTRACT WITH YOU, including, but not limited to: (i) if you: (a) breach this Agreement, any law, rule or regulation, or rights of us or any third party; (b) make a late payment or, in the case of pre‐paid subscriptions, if your credit or debit card is declined; (c) incur charges larger than a required deposit or billing limit (even if we haven't yet billed the charges); (d) provide credit information we cannot verify; (e) become insolvent or go bankrupt; (f) lie to us; (g) allow anyone to use your account or User ID; or (ii) if you, any user of your account or any authorized contact on your account: (a) threaten or commit violence against our representatives; (b) use vulgar or inappropriate language toward our representatives; (c) harass our representatives; (d) interfere with our operations; (e) "spam" or engage in other abusive activities; (f) modify the Services; (g) use the Services to violate or infringe upon any rights of any kind of us or any third party, including, but not limited to, copyright, trademark, contract, defamation, right of privacy or publicity, or any other right of any person or entity; or (h) use the Services in a way that adversely affects us, our network, or other customers, any Providers, partners, representatives, agents, or affiliates. We can also temporarily limit your Services for any operational or governmental reason. FURTHER, WE CAN CANCEL ANY AND ALL SERVICE OFFERINGS AT ANY TIME AND FOR ANY REASON.
SMS Charges: The Services may allow you to send and receive text messages (SMS) on your mobile device. You authorize The Kin to send account-related and other SMS to your account. Message and data rates may apply, and you will be responsible for paying such charges. To stop receiving text messages from or in connection with the Services, update your notification settings in your mobile Application, or follow the directions provided in the message.
Authorization to Contact You by Phone: You authorize us and our affiliates, agents, Providers and independent contractors to contact you at any telephone number you provide to us or from which you place a call to us or any telephone number where we believe we may reach you using any means of communication, including, but not limited to, marketing calls or text messages to mobile, cellular, wireless, or similar devices and calls or text messages using an automated telephone dialing system and artificial voices or prerecorded messages, even if you incur charges for receiving such communications.
9. User Submissions
By posting information or content on the Website or the Application or otherwise providing content, materials, or information to The Kin or in connection with the Website, the Application, or the Services (“User Submissions”), you grant The Kin a non-exclusive, worldwide, royalty-free, perpetual, sublicensable, and transferable right to use such User Submissions in connection with the Services, the Application, the Website, and the Kin’s (and its successors’ and assigns’) business, including by reformatting, modifying, creating derivative works of, excerpting, and translating any User Submissions. You understand that all information publicly posted or privately transmitted through the Website, the Application, or the Services is the sole responsibility of the person from which such content originated. Under no circumstances will the Kin be liable in any way for any User Submissions, including, without limitation, any errors or omissions, or any loss or damage of any kind incurred in connection with use of or exposure to any User Submissions posted, emailed, accessed, transmitted, or otherwise made available via the Website, the Application, or the Services.
10. Third Party Products or Services
If you choose to use the Services in connection with a product or service provided by a third party, The Kin is not responsible for and does not endorse any third-party product or service. ANY USE OF THIRD-PARTY PRODUCTS OR SERVICES IN CONNECTION WITH THE WEBSITE, THE APPLICATION, AND/OR THE SERVICES IS SOLELY AT YOUR OWN RISK AND MAY VOID ANY WARRANTIES PROVIDED BY THE KIN. Without limiting the foregoing, you acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement that may affect or be affected by such use.
11. Third-Party Websites
The Website, the Application, or the Services may contain links to third party websites or services ("Third-Party Websites") that are not owned or controlled by The Kin. The Website or the Services may also be accessible by logging in through a Third-Party Website. The Kin has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of, or the opinions expressed in, any Third-Party Websites. In addition, The Kin will not and cannot monitor, verify, or edit the content of any Third-Party Website.
12. Referral Program
We may offer you the opportunity to participate in referral programs, through which you and the person you refer can receive credit towards future purchases of Services (“Referral Programs” or “RAF” program). Your participation in any Referral Program, which constitutes a “Service” under these Terms, constitutes your agreement to these Terms and any other Referral Program-specific terms communicated to you by us. By making a valid referral through a Referral Program, your referred friend (“Friend”) will receive a discount or credit towards the purchase of future Services, as specified at the time you sign up. You (“Referrer”) will receive, in The Kin’s sole discretion, gift cards, credit toward future Services, or other cash or credit amounts, at The Kin’s sole discretion. Rewards are subject to verification. The Kin may delay a reward for the purposes of investigation. Rewards cannot be redeemed for cash and cannot be combined with other offers/coupons. Any coupon codes, discounts, and credits provided by The Kin will be valid for six (6)-months after emailed or delivered.
The Referral Program is limited to consumers in the United States only. A customer can refer an unlimited number of Friends but will only receive a maximum of 12 gift cards for successful referrals. To qualify, Friends must be new customers of The Kin (must not be a previous customer or already have an active or inactive account for The Kin) and must subscribe for a membership toThe Kin directly through the referral link within 6 months of the referral. Friends may only redeem one referral per household.
For Referrers to qualify, Referrers must have an active subscription to The Kin and be in good standing with The Kin without an outstanding balance.
Referral requests are subject to the following restrictions:
The referred Friend and the Referrer cannot be the same person (for example, by using a different email address).
The referred Friend must complete an order meeting the minimum purchase requirement.
A Referrer may not refer more than 12 (twelve) Friends.
Referral requests may be denied for any reason, in The Kin’s sole discretion. If your code is found on any coupon site, blog, or any other public site, we will immediately shut it down and you will not be credited for those referrals. The RAF reward may not be combined with other offers, transferred, or redeemed for cash. In addition, the maximum discount that can be applied for Referrers in a given month is equal to the amount the Referrer would have paid for their subscription month if the Refer-A-Friend discounts were not applied. Rewards will be automatically redeemed at the end of the current billing cycle and before the start of the next.
All RAF program participants must comply with The Kin terms and policies and the terms and policies of any social media site where a referral link is posted/used. Referral links are for individual, personal use only and may not be used for commercial purposes such as affiliate lead generation. The Kin reserves the right to cancel the Refer-a-Friend Program or to change these terms at any time in its sole discretion. Any unclaimed referral rewards will be forfeited at that time.
By participating in a Referral Program, you agree: not to send multiple emails to the same email address or otherwise use spam or unsolicited email, fax messages, text messages, or telephone marketing; attempt to inflate your rewards by circumventing or otherwise compromising our systems; post ads or links on any third-party website or any third party advertising platforms; or violate any federal or state law including the CAN-SPAM Act, state anti-spam laws, and regulations and guidelines issued by the Federal Trade Commission and Federal Communications Commission. If you are notified by us that a person has requested to “opt-out” of receiving emails from you or The Kin, you shall not send further emails to that person’s email address for the purposes of inducing a purchase or referral.
13. Notice of Infringement; Takedown Requests
The Kin has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA. If you have an intellectual property rights-related complaint about material posted on the Service, the Website, or the Application, you may contact our Designated Agent at the following address: The Kin Designated Agent: Legal, c/o Kinship Partners, Inc., 440 Park Avenue South, Floor 5, New York NY, 10016. Any notice alleging that materials hosted by or distributed through the Service or Website infringe intellectual property rights must comply include the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that The Kin is capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, email address;
A statement that the notifier has a good faith belief that the material identified is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
14. Disclaimer of Warranties
Except in jurisdictions where it is not possible to limit consumers’ recourses for legal/statutory warranties, such as New Jersey, the Website, Services, and Application are provided to you “AS IS” and “AS AVAILABLE.” WITHOUT LIMITING THE FOREGOING, THE KIN DOES NOT MAKE ANY WARRANTIES BEYOND THOSE ON THE FACE OF THE WEBSITE, APPLICATION, AND SERVICES. THE KIN DOES NOT WARRANT THAT ACCESS TO OR USE OF THE WEBSITE, APPLICATION, OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF THE KIN TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE WEBSITE, PURCHASE OF ANY SERVICES, ANY COMMUNICATIONS BETWEEN YOU AND THE KIN (INCLUDING COMMUNICATIONS THROUGH THIRD PARTIES), AND YOUR RIGHTS UNDER THIS AGREEMENT, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID THE KIN IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLY THE CLAIM(S). SOME JURISDICTIONS, INCLUDING QUEBEC AND NEW JERSEY, MAY NOT ALLOW THE LIMITATIONS OR EXCLUSIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. CHECK LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THESE LIMITATIONS OR EXCLUSIONS.
15. MANDATORY ARBITRATION; CLASS ACTION WAIVER
Except in jurisdictions where it is not possible to require arbitration and/or waive the right to class proceedings, such as Quebec, any dispute relating in any way to your visit to or use of the Website or Application, purchase or use of the Services, your relationship or communications with The Kin (including indirect communications through third parties), or otherwise related to this Agreement (“Disputes”), shall be resolved exclusively through confidential arbitration, rather than in court, and shall be governed exclusively by the laws of the State of Delaware, without regard to principles of conflict of laws. The United States Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Further, any question as to the validity of this Arbitration Agreement shall be submitted to confidential arbitration and decided by an arbitrator.
If a Dispute arises under this Agreement, you agree to first contact us at email@example.com. Before formally submitting a Dispute to arbitration, you and we may choose to informally resolve the Dispute. If any Dispute cannot be resolved informally, you agree that any and all Disputes, including the validity of this arbitration clause and class action waiver, shall be submitted to final and binding arbitration before a single arbitrator of the American Arbitration Association (“AAA”) in a location convenient to you or telephonically. Either you or we may commence the arbitration process by submitting a written demand for arbitration with the AAA and providing a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org. Except as may be required by law as determined by the arbitrator, no party or arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of Delaware: (i) any dispute, controversy, or claim relating to or contesting the validity of our or one of our family company’s intellectual property rights and proprietary rights, including without limitation, patents, trademarks, service marks, copyrights, or trade secrets; (ii) an action by us for temporary or preliminary injunctive relief, whether prohibitive or mandatory, or other provisional relief; (iii) any legal action by us against a non-consumer; and (iv) interactions with governmental and regulatory authorities. You expressly agree to refrain from bringing or joining any claims in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.
The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement may be joined to an arbitration involving any other party subject to this Agreement, whether through a class action, private attorney general proceeding, class arbitration proceedings or otherwise. If an arbitrator or court decides that any part of this arbitration agreement is invalid or unenforceable, the other parts of this arbitration agreement shall still apply; however, if an arbitrator or court decides that the class action waiver is invalid or unenforceable, then the entirety of this arbitration agreement shall be null and void. YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE IN A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION. You shall have thirty (30) days from the earliest of the date that you visit the Website, Application, purchase a Service, or submit information through the Website or Application to opt out of this arbitration agreement, by contacting us by email at firstname.lastname@example.org. If you do not opt out by the earliest of the date that you visit the Website, make a purchase, download the Application, or submit any information to us, then you are not eligible to opt out of this arbitration agreement.
16. NOTICE TO CALIFORNIA RESIDENTS
With respect to any electronic commercial service (as defined under California Civil Code Section 1789.3) offered on or through the Sites, California residents are entitled to the following specific consumer rights information:
The provider of the Website is:
6885 Elm Street
McLean, VA 22101
To file a complaint regarding the Website or Services, or to receive further information, send a letter to the attention of “Legal Department” at the above address or contact Mars via e-mail at email@example.com (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 916.445.1254 or 800.952.5210.
The failure of The Kin to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. The Kin shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond The Kin’s reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by you except with The Kin’s prior written consent. The Kin may transfer, assign, or delegate this Agreement and its rights and obligations without your consent. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning. Except as expressly set forth in this Agreement, you and The Kin agree there are no third-party beneficiaries intended under this Agreement. You enter this agreement as of the date you agree to this Agreement, in your place of residence.
18. Additional Terms
19. End User License Agreement
This End User License Agreement (“EULA”) governs the software available ("Software") when you download the Application.
1. License Grant.
Subject to the terms and conditions in this EULA, The Kin hereby grants to you a non-exclusive, non-transferable, limited license to use the Software. The terms of this EULA will govern any upgrades provided by The Kin that replace or supplement the original Software unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. The license rights granted under this EULA are limited to the first 30 days after you first use the Software unless you supply information necessary to activate a The Kin subscription. You may activate a subscription to The Kin by downloading the Application located at the Apple App Store and Google Play.
You agree not to copy, create derivative works, reproduce, modify, or distribute the Software, or otherwise exceed the scope of the foregoing license. Subject to applicable law, you agree not to decompile, reverse engineer, disassemble, or otherwise attempt to learn the source code, structure, or algorithms underlying the Software. You agree not to (i) remove any copyright or other proprietary notice from the Software, (ii) sublicense or transfer the Software to a third party; (iii) extract or replace any part of the Software; or (iv) sell, rent, lease, lend, provide commercial hosting services, or otherwise transfer the Software for value. This EULA does not allow you to use the Software on any hardware that you do not own or control, and you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time.
Additional Terms and Conditions for Apple Users.
NOTE – The terms and conditions of this paragraph apply to you only if you downloaded the Application through Apple Inc.’s App Store. You acknowledge that this EULA is between you and The Kin, and that Apple Inc. (“Apple”) bears no responsibility for the Application and its content. The license grant under this EULA is a non-transferable license to use the Application on any Apple-branded products that you own or control as permitted by this EULA and the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the Application may be accessed and used by other accounts associated with you via “Family Sharing” (as defined in the Apple Media Services Terms and Conditions) or volume purchasing. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) of the Application to you; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application. Apple is not responsible for addressing any claims by you or a third party relating to the Application or your use of the Application, including without limitation: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. In the event of any third-party claim that the Application or your possession and use thereof infringes a third party’s intellectual property rights, Apple will not be responsible for any investigation, defense, settlement, or discharge thereof. Apple and its subsidiaries are third-party beneficiaries of this EULA, and upon Your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against You as a third-
party beneficiary thereof.
Any rights not expressly granted to you are reserved by The Kin and its affiliates. Neither this EULA nor any act by The Kin pursuant to or in connection with this EULA (including, without limitation, the delivery or conveyance of any hardware or software product) shall be construed to provide expressly, by implication, by way of estoppel, or otherwise, any license or any rights under any patents, copyrights, or any other intellectual property rights of The Kin or its affiliates, except as expressly provided herein.
4. Export Controls.
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. or Canadian Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country or by the Canadian government as a “terrorist entity”; or (b) listed on any U.S. Government list of prohibited or restricted parties. You hereby agree that (i) you will comply with all applicable Sanctions and Export Control Laws, (ii) you are solely responsible for ensuring that the Application is used, disclosed, and/or transported only in accordance with all applicable Sanctions and Export Control Laws, and (iii) you will not re-export or transfer the Application, in any form, directly or indirectly, to any person or entity based in Cuba, Iran, Syria, Sudan, South Sudan, or North Korea.
This EULA shall terminate immediately, without notice, if you fail to comply with any material term of this EULA. In addition, The Kin may terminate this EULA at any time upon notice to you and by posting notice on our website located at https://www.thekin.com.
Your use of software components together with the Software is subject to the terms of your separate license from The Kin. Compliance with all copyright laws and software licenses included in this EULA are the responsibility of the user. The laws of the State of Delaware, USA, without regard to Delaware’s conflict of law principles, govern this EULA. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this EULA.
The Kin reserves the right to change the terms and conditions of this EULA by posting a revised EULA in the Application or mailing or emailing notice thereof to you. In addition, The Kin may add, modify, or delete any aspect, program, or feature of the Application, although The Kin is not under any obligation to add any upgrade, enhancement, or modification. Your continued use of the Application following any announced change will be conclusively deemed acceptance of any change to the terms and conditions of this EULA (and acceptance of the version of this EULA then in effect). Accordingly, please review the EULA found in the Application on a periodic basis.