KIPSY, INC. TERMS OF SERVICE
Last Updated: 10/12/2023
These Terms of Service (“Terms”) apply to your access to and use of: (a) the website located at https://kipsy.com or any successor links) and all associated web pages, websites, and social media pages (the “Site(s)”) provided by Kipsy, Inc. (“Kipsy”, “we”, “our” or “us”); (b) software applications that may be downloaded to your smartphone, tablet or other device, (the “App(s)”); and other online services including providing transcription, analysis and other services for participants (“Participants”) of conferencing services (“Conferencing Services”) (the foregoing, including the Sites and the Apps, the “Services”). These Terms constitute a legal agreement by and between you, including your use of the Services as a Participant (“you”, or “your”) and Kipsy. You and Kipsy are referred to individually as a “Party” and collectively, the “Parties”.
By clicking “I accept” and by using our Services, you agree to these Terms and any other terms as referenced herein, including the payment and subscription renewal provisions in Section 8, and the mandatory arbitration provision and class action waiver in Section 13. BY AGREEING TO THESE TERMS, EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 13, OR TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use our Services.
We may supply different or additional terms in relation to some of our Services, including charging different or additional fees for the Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes if they are material, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in such notice, or except as otherwise provided in Section 8.4) the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.
If you are an individual accessing or using the Services on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (“Organization”), then you are agreeing to these Terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms. References to “you” and “your” in these Terms will refer to both the individual using the Services and to any such Organization.
If you have any questions about these Terms or our Services, please contact us at support@kipsy.com.
1. CHANGES TO THESE TERMS
We may make changes to these Terms from time to time. We will provide you with notice of such changes, such as by sending an email, providing a notice through the Services, or updating the date at the top of these Terms. Unless we say otherwise in such notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms at any time, you must stop using our Services.
2. YOUR INFORMATION; COMMUNICATIONS
2.1. Generally. You may provide certain information to Kipsy in connection with your access or use of the Services, or we may otherwise collect certain information about you and Participants that access or use the Services. Certain of the Services record and send audio and other information collected from Participants of the Conferencing Services to the cloud. The Services process and retain Participants interactions with the Conferencing Services, such as voice inputs.
2.2. Personal Information. Kipsy may collect, use, share, and otherwise process personal information in providing the Services. For information about how we collect, use, share, and otherwise process personal information about you when using the Services or Kipsy Materials, including creating your Account, setting up Authorized Users in your organization, or storing, accessing, or downloading Reports (other capitalized terms, defined below), please see Kipsy’s Privacy Policy.
2.3. Consent to Communication. You agree to receive emails, SMS or text messages, and other types of communication from Kipsy via the Services using the email address or other contact information you provide in connection with the Services, including by signing up for our subscriptions, newsletters, and other marketing communications.
3. TERRITORY RESTRICTIONS
3.1. You may only use the Services in jurisdictions authorized by Kipsy. Use of the Services is currently authorized only in the United States.
4. AUTHORIZED USERS; ACCOUNTS
4.1. Authorized Users. The Services are provided to you only for your internal business use and not for the benefit or use of any third party. Kipsy may enable you to designate authorized individuals associated with your business (“Authorized User(s)”) to use the Services in connection with your subscription, if applicable, and only Authorized Users may use the Services. You are liable to Kipsy for any Authorized Users’ activity in connection with the Services.
4.2. Accounts. Certain of the Services may require you to create accounts for you and your Authorized Users to access and use the Services (each, an “Account”). When creating an Account, you will be asked to provide certain information about you and your business and your Authorized Users, such as your name, your Authorized Users’ names, your business address, your and your Authorized Users’ email addresses, or other user information (“Account Information”). By entering Account Information, you represent and warrant that all such information you enter is true and accurate, and you will keep the information up to date if it changes at any time during the term of these Terms. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
4.3. Account Credentials. You will ensure that you and your Authorized Users (a) keep Account username and password details confidential and (b) otherwise maintain the security of each Account created for you and your Authorized Users. If you discover or suspect that someone has accessed your or of one of your Authorized Users’ Accounts without permission, you will promptly notify Kipsy. You are solely responsible for (i) the activities of anyone accessing the Services using your or your Authorized Users’ login credentials and (ii) ensuring that all your Authorized Users comply with these Terms. You will permit only the maximum number of Authorized Users identified in your subscription to access or utilize the Services.
5. SERVICES
5.1. Scope. The Services enable you to organize and evaluate data, content, or other information provided, uploaded, or inputted by Participants, or you and your Authorized Users, including via mobile device(s) (“User Data”). The Services provide information, transcripts, scorecards, analyses, or reports (“Reports”) based on User Data, Third Party Content (defined below), and models. The Services, including any Reports, may change over time and are for informational purposes only. Reports may vary or contain inaccuracies depending on a variety of factors including a third party’s refusal to participate or provide data or information to Kipsy. Kipsy does not guarantee any results, and neither the Services nor the Kipsy Materials should be used as a substitute for sound business judgment.
5.2. Access and Use Rights. Subject to your continuing compliance with these Terms: (a) Kipsy will: (i) provide the Services to you and each Authorized User; and (ii) provide you with administrative access to the Services to manage use of the Services by Authorized Users; and, (b) you and your Authorized Users may, on a non-exclusive basis, (i) access and use the Services and Kipsy Materials (defined below) made available by the Services; and (ii) create, store, access, download, and share any Reports made available by the Services, in each case, solely for your internal business purposes.
5.3. Ownership. Kipsy and its licensors own all rights, title, and interest, including all intellectual property rights, in and to (a) the Services and any program or marketing materials provided by Kipsy to you via the Services, and (b) any works generated by or through the Services, including Deidentified or Aggregated Data (defined below), Reports and any other information generated, published, displayed, transmitted, or made available to you in or by the Services, excluding any User Data or Third Party Content (collectively, “Kipsy Materials”), and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services and Kipsy Materials, including all intellectual property rights thereto, are reserved by Kipsy and its licensors.
5.4. Restrictions. Except as permitted herein, you will not (and will not permit any Authorized User or other third party to):
5.4.1 sell or resell the Services or the Kipsy Materials or any portions thereof;
5.4.2. copy, reproduce, distribute, publicly perform, or publicly display all or portions of the Services, except as expressly permitted by Kipsy or its licensors;
5.4.3. modify the Services or Kipsy Materials, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon the Services or Kipsy Materials;
5.4.4. use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Services in any manner;
5.4.5. reverse engineer any aspect of the Services or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any part of the Services;
5.4.6. develop or use any applications that interact with the Services without Kipsy’s prior written consent;
5.4.7. use the Services to develop, evaluate, validate, or enhance any competing product or service without Kipsy’s prior written consent, except you may make agronomic comparisons and conduct yield testing solely for your own internal business use; or
5.4.8. use the Services or Kipsy Materials for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
6. DATA
6.1. User Data; Ownership. Some Services may require you, or your Authorized Users to provide, upload, input, store, or otherwise make User Data available to Kipsy for the Services to operate as intended. Certain features of the Services may not be available without such User Data. As between you and Kipsy, you retain any copyright and other proprietary rights that you may hold in your User Data. Kipsy disclaims any and all liability in connection with User Data. You affirm, represent, and warrant that you are the creator and owner of User Data, or have the necessary licenses, rights, consents, and permissions to authorize Kipsy and users of the Service to use and distribute User Data as necessary to exercise the licenses granted by you in these Terms, and in the manner contemplated by Kipsy and the Services.
6.2 License to User Data.
6.2.1. To the extent permitted by applicable law, you hereby grant Kipsy a non-exclusive, royalty-free, transferrable, and sublicensable license to: (a) access, use, reproduce, display, modify, and prepare derivative works based on User Data to provide the Services and any related support to you, to otherwise perform Kipsy’s obligations to you under these Terms, for Kipsy’s internal operations and research and development purposes, and for other purposes set forth in these Terms; (b) share User Data with Kipsy’s service providers and other third parties to provide the Services and comply with applicable laws or lawful requests, and (c) use User Data to create deidentified or aggregated data so long as the resulting data does not constitute personal information under Applicable Law and cannot reasonably be linked to or associated with User (“Deidentified or Aggregated Data”).
6.2.2. You hereby further grant Kipsy a non-exclusive, royalty-free, perpetual, irrevocable, transferable, and sublicensable license to use, reproduce, distribute, publicly display, publicly perform, and create derivative works of: (a) User Data for the purpose of machine learning or artificial intelligence, including for the purposes of training and tuning of algorithms and models; and of (b) the Deidentified or Aggregated Data for the foregoing, and for Kipsy’s internal business purposes.
6.3. Machine Learning. Kipsy has the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (“Usage Analytics”). The Service may be implemented using machine learning systems with features and implementations designed to generate statistics, calibrate, or train data models, and improve algorithms in the course of processing User Data and Usage Analytics (“Machine Learning”). Kipsy may use such Machine Learning for testing, tuning, optimizing, validating, or otherwise enhancing the analytics, models, or algorithms underlying the Service. Nothing in these Terms gives you any rights in or to any part of the Services or the results of the Machine Learning generated by Kipsy, including in the course of providing the Services.
6.4. Access to User Data and Results. Kipsy may permit you to share certain User Data or the results of processing User Data with other users of the Services, share User Data or the results of processing User Data outside of the Services, or even make certain User Data or the results of processing User Data public for all (even non-Service users) to view. Kipsy does not guarantee that such User Data or any results of processing User Data will never be accessible by others. To the fullest extent permitted by law, Kipsy is not responsible for the use of any User Data or results of processing User Data by users or non-users of the Services or any third parties.
6.5. Voice Recordings. The Services may provide a feature that allows you to record individual conversations and/or upload recorded conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by location. You are solely responsible for providing any notices to, and obtaining consent from, individuals in connection with any recordings as required under applicable law.
6.6. Feedback. You hereby grant to Kipsy a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and otherwise practice any suggestions, ideas, enhancement requests, feedback, or recommendations that you provide to Kipsy. You may voluntarily submit or otherwise communicate to Kipsy any questions, comments, suggestions, ideas, original or creative materials, or other information about Kipsy, the Services, or Kipsy Materials (collectively, “Feedback”). You understand that Kipsy may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, or publish the Feedback, or to further develop or improve the Services, or develop new products or services in Kipsy’s sole discretion. Kipsy will exclusively own all improvements to the Services or new Kipsy products or services based on any Feedback. You understand that Kipsy may treat Feedback as nonconfidential.
6.7. User Data Disclaimer. We are under no obligation to edit or control User Data that you or other users of our Services post or publish, and will not be in any way responsible or liable for User Data. You are solely responsible for your User Data and the consequences of providing User Data via the Services.
7. THIRD PARTY MATERIALS AND THIRD PARTY CONTENT.
7.1. The Services rely on or interoperate with third party products and services, including, without limitation, data, or information (or lack thereof) from other individuals or call participants, data storage services, communications technologies, IoT platforms, and internet and mobile operators (collectively, “Third Party Materials”). These Third Party Materials are beyond Kipsy’s control, but their operation may impact, or be impacted by, the use and reliability of the Services. The use and availability of the Services is dependent on third parties including product vendors and service providers, and these Third Party Materials may not operate reliably 100% of the time, which may impact the way that the Services operate. To the extent you desire to use the Services in connection with materials or information located on your Zoom, or other third-party accounts (collectively, “Third Party Accounts”), you hereby grant Kipsy permission to access the Third Party Accounts in connection with Kipsy’s provision of the Services.
7.2. Kipsy may further provide information about or links to third party products, services, software, and/or websites or may allow third parties to make their data, content, and information available on or through the Services, and when applicable, subject to those third parties’ terms and conditions (collectively, “Third Party Content”). Kipsy provides Third Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third Party Content are solely between you and such third parties and you acknowledge that your use of Third Party Content is at your own risk. Kipsy is not responsible for examining or evaluating the content or accuracy of any Third Party Content. Third Party Content is for general informational purposes only and is not guaranteed by Kipsy. Kipsy reserves the right to change, suspend, remove, disable, or impose access restrictions or limits on any Third Party Content at any time without notice or liability to you.
8. FEES
8.1. Paid Services. Our Services may include both paid-for Services (“Paid Service(s)”) and free Services, for which no fees are charged (“Free Service(s)”). We may also offer certain Paid Services to be paid for on a recurring basis (“Subscription Service(s)”) and others on an individual or discrete basis (“Discrete Service(s)”). Subscription Services may subject you to recurring fees and/or terms. By signing up for a Subscription Service, including after any free trial period, you agree to pay us the subscription fee and any applicable taxes, charges, fees, levies, or other assessments imposed by any domestic or foreign taxing authority (“Taxes”) (collectively, “Subscription Fee(s)”). Discrete Services may subject you to fees and Taxes charged per usage and/or terms, including transaction volume (“Discrete Fee(s)” and, together with Subscription Fees, the “Paid Services Fee(s)”). We will invoice you on the first of each month for any Discrete Fee(s) incurred during the immediately preceding month. By using a Discrete Service, you agree to pay the Discrete Fee(s) within thirty (30) days from the invoice date, unless otherwise stated in an order form. Unless otherwise stated, all Paid Services Fees are exclusive of any Taxes. You are responsible and liable for determining any and all Taxes required to be assessed, incurred, collected, paid or withheld for your use of the Services.
8.2. Automatic Renewal. IF YOU ENTER INTO A SUBSCRIPTION SERVICE, UNLESS YOU CANCEL THE SUBSCRIPTION SERVICE BEFORE RENEWAL, BY DEFAULT (AND WITH PRIOR NOTICE TO THE EXTENT REQUIRED BY APPLICABLE LAW), YOUR SUBSCRIPTION SERVICE WILL AUTOMATICALLY RENEW FOR THE AGREED UPON MONTHLY OR ANNUAL TERM, AND THE APPLICABLE SUBSCRIPTION FEE WILL BE AUTOMATICALLY CHARGED TO YOU AT THE TIME OF RENEWAL WITH AN ACTIVE PAYMENT METHOD ON FILE IN YOUR ACCOUNT.
8.3. Cancellation. IF YOU DO NOT WANT YOUR SUBSCRIPTION SERVICE TO AUTOMATICALLY RENEW, YOU CAN CANCEL YOUR SUBSCRIPTION SERVICE AT ANY TIME PRIOR TO RENEWAL BY MANAGING YOUR SUBSCRIPTION SERVICE ON THE “MANAGE SUBSCRIPTIONS” PAGE ON THE APP OR BY CONTACTING OUR SUPPORT TEAM AT SUPPORT@KIPSY.COM. YOU MAY ALSO CANCEL YOUR SUBSCRIPTION SERVICE BY SENDING THE FOLLOWING CANCELLATION E-MAIL TO US. You may cancel a Subscription Service at any time, but if you cancel your Subscription Service before the end of the current subscription term, we will not refund any Paid Services Fees already paid to us.
8.4. Changes to Paid Services. We may change the Paid Services Fees at any time, but any such change will not apply to you until such time as your current Subscription Service expires or is renewed (whichever is earlier). After such time, your use of the applicable Services will be charged at the then-current Paid Services Fees. If you do not agree to these price changes, you must cancel your Subscription Services before the changes take effect through the processes set forth above in Section 8.3. If you do not cancel your Subscription Services accordingly, your Subscription Services will automatically renew at the then-current price at the time of renewal and for the same duration as the initial subscription term, and we will charge your on-file payment card or method on the first day of the renewal of the subscription term. Where a Paid Services Fee has increased, we will notify you of the relevant fee increase prior to the renewal of your Subscription Service. If you switch to a Subscription Service with higher Subscription Fees, we will restart your billing period on the date you switch to the new Subscription Service and apply a pro-rated credit of the amount not used for the old Subscription Service to the first month’s payment for the new Subscription Service. We may establish, limit, revoke and otherwise change credit and credit usage limits and terms at any time, in our sole discretion, with or without notice to you.
8.5. Third Party Processors. All financial transactions conducted for the Paid Services are made using one or more third-party payment processors we may engage from time to time. All such transactions are governed by the payment processors’ respective terms of use and privacy policies, which we do not control. We discuss our collection of financial information through our Privacy Policy and our third-party payment processors HERE. We encourage you to review our third-party payment processors’ terms of service and privacy policies before submitting your payment information. We do not process or retain your credit card, debit card, or other payment information. This information is used solely for the purpose of allowing you to sign up for and access and use the Paid Services. All billing information you provide to our third-party payment processor must be truthful and accurate and you represent that you are authorized to use the payment method in the manner contemplated here. You expressly authorize us (via our third-party payment processors) to charge the payment method you provide for any Paid Services you use. Your selection of the “I Accept” or similar button on the checkout page is your electronic signature and you agree that (a) this signature is the legal equivalent of your wet or manual signature and (b) this transaction is equivalent to an in-person transaction where your payment method is physically present.
8.6. Changes to Payment Methods. If your payment details change, your card or other payment method provider may provide us with updated payment details. We may use these new details or details from other payment methods on file in order to help prevent any interruption to your use of the Paid Services. If you do not want to have your card or other payment method automatically updated, you can opt out of these services by contacting your financial institution. If you would like to use a different payment method or if there is a change in payment method, please send an e-mail to us informing us of such request or changes at support@kipsy.com.
8.7. Billing Date. The billing date will depend on the type of Paid Service (e.g., monthly or annual Subscription Service) that you choose and will be charged on the billing date indicated on your “Billing” page in the Services. In certain circumstances, your billing date may change. For instance, if we are unable to successfully charge your card on a given day (e.g., a federal holiday or due to technical failures). If we cannot charge your payment method for any reason (such as expiration or insufficient funds), and you have not cancelled the Subscription Service, you remain responsible for any uncollected amounts for the Subscription Service as well as any Discrete Fees, and we will attempt to charge the payment method as you may update your payment method information. We reserve the right to cancel or suspend your Service if we are unable to successfully charge your payment method for any Paid Services.
8.8. Free Trials. From time to time, we may offer free trials to access some or all of the Services. Such Free Services are subject to these Terms except as otherwise stated in the free trial offer. Unless you enter into a Subscription Service or Discrete Service agreement with us to access some or all of the Services prior to the end of your free trial period, your access to the Services will automatically terminate at the end of such period.
9. MODIFYING AND TERMINATING OUR SERVICES
9.1. Kipsy’s Termination Rights. We reserve the right to modify our Services or to suspend or terminate providing all or part of our Services at any time; charge, modify, or waive any fees required to use the Services; or offer opportunities to some or all end users of the Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Services, such as by sending an email or providing a notice through our Services. All modifications and additions to the Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by Kipsy in writing. You also have the right to stop using our Services at any time, and you may terminate these Terms by ceasing use of our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
9.2. Effects of Termination. Upon termination of these Terms, the Services and all of your rights under these Terms will immediately terminate. Termination will not relieve either Party of obligations incurred prior to the effective date of the termination. The following Sections survive the termination or expiration of these Terms: 5.3 (Ownership), 5.4 (Restrictions), 6 (Data), 8 (Fees) (with respect to amounts owed prior to termination or expiration), 9.2 (Effects of Termination), 10 (Warranties; Disclaimer), 11 (Limitation of Liability), 12 (Indemnification), 13 (Dispute Resolution; Binding Arbitration), and 14 (General).
10. WARRANTIES; DISCLAIMER
10.1. Warranty. Each Party represents and warrants that (a) it has full power and authority to enter into these Terms; and (b) the person entering into these Terms on its behalf has the authority to do so.
10.2. Compliance. In the performance of these Terms, each Party will comply with all laws and regulations including state and federal laws and regulations, orders, and ordinances, applicable to such Party, including privacy laws and regulations governing such Party and its data privacy practices (“Applicable Law”). You represent, warrant, and covenant that: (a) User Data is accurate and that you are not knowingly entering (or permitting to be entered) false, inaccurate, or misleading User Data; and (b) you have complied with Applicable Law in connection with your collection of your User Data and you have provided all notices, and obtained all consents, rights, and permissions required under Applicable Law as may be necessary for Kipsy to process User Data and provide the Services as contemplated by these Terms. You acknowledge that the accuracy and integrity of User Data you, your Authorized Users, or other applicable third parties are essential to the administration and operation of the Services, and that the Services may have limited ability to perform based on the quality of such data.
10.3. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT (OR OTHERWISE REQUIRED BY APPLICABLE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER): EACH PARTY HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE; AND THE SERVICES, REPORTS, VERITY MATERIALS AND ANY OTHER INFORMATION IS PROVIDED BY KIPSY ON AN "AS IS" AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND. YOU REPRESENT AND COVENANT THAT YOU HAVE NOT RELIED ON ANY OTHER WARRANTIES OR REPRESENTATIONS CONCERNING KIPSY, THE SERVICES, REPORTS, OR THE KIPSY MATERIALS.
11. LIMITATION OF LIABILITY
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF KIPSY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE, WITH THE EXPRESS EXCEPTION OF DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS, KIPSY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL: (A) KIPSY BE LIABLE FOR DAMAGES FOR LOSS OF PROFIT OR REVENUE, DATA THAT IS LOST OR CORRUPTED, LOSS OF GOODWILL, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES; AND, (B) KIPSY’S TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICES EXCEED (I) $10 IF NO FEES ARE PAID FOR THE SERVICES, OR (II) AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE BY YOU FOR THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT. THE EXCLUSIONS, DISCLAIMERS, AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS ARE ESSENTIAL COMPONENTS OF THESE TERMS AND FORM THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES, IF ANY, AND THAT KIPSY WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THESE WAIVERS AND LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. INDEMNIFICATIONYou will indemnify, hold harmless and defend Kipsy and from any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs, or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Kipsy arising out of or relating to: (a) your breach of any term or condition of these Terms; (b) your (or your Authorized Users’) misuse of the Services or Reports; (c) your User Data; or (d) your (or your Authorized Users’) violations of any Applicable Laws.
13. DISPUTE RESOLUTION; BINDING ARBITRATION
Please read the following Section 13 carefully because it requires you to arbitrate certain disputes and claims with Kipsy and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
13.1. No Representative Actions. Any dispute arising out of or related to these Terms or our Services is personal to you and Kipsy and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
13.2. Arbitration of Disputes. Except for disputes in which you or Kipsy seeks injunctive or other equitable relief for the alleged infringement, violation or misappropriation of intellectual property, you and Kipsy waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Kipsy you will first contact Kipsy and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Kipsy by certified mail addressed to 1979 N Cool Creek Ave. Meridian ID, 83646 or by email to support@kipsy.com. The Notice must (a) include your name, physical address, e-mail address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. All Disputes submitted to American Arbitration Association will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in the State of Idaho. Disputes will be resolved in accordance with the rules of the American Arbitration Association (“AAA Rules”). The most recent version of the AAA Rules is available on the American Arbitration Association website and are hereby incorporated by this reference. You either represent that you have read and understand the AAA Rules or waive your opportunity to read the AAA Rules and waive any claim that the AAA Rules are unfair or should not apply for any reason.
13.3. Arbitrator’s Authority. These Terms affect interstate commerce, and the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
13.4. Appeals and Enforcement. The state or federal courts of Delaware have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
13.5. Time Limitation. Any Dispute must be filed within one (1) year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Kipsy will not have the right to assert the claim.
14. GENERAL
14.1. Independent Contractors. The Parties are independent contractors; and nothing contained in these Terms gives either Party the power to act as an agent of the other or to direct or control the day-to-day activities of the other.
14.2. Assignment. You may not assign your rights or obligations under these Terms, whether by merger, sale, acquisition, operation of law, or otherwise, without Kipsy’s prior written consent. Kipsy may assign these Terms or delegate its obligations hereunder without restriction.
14.3. Notices. Any notice given by any Party to the other Party must be in writing and will be effective upon delivery as follows: (a) if to you, (i) when delivered via a delivery service to the address specified in your or your Authorized Users’ Accounts; or (ii) when sent via email to the email address specified in your or your Authorized Users’ Accounts or otherwise on record for you; and (b) if to Kipsy, when sent via email to support@kipsy.com. Either Party may change its address for receipt of notices by providing notice to the other Party in accordance with this Section.
14.4. Governing Law. Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of Delaware, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the Parties that is not subject to arbitration will be resolved in the state or federal courts of Delaware and the United States, respectively, sitting in New Castle County, Delaware. The Parties expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to these Terms.
14.5. Severability. Each provision contained in these Terms constitutes a separate and distinct provision severable from all other provisions. If any provision (or any part thereof) is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from these Terms; and all the remaining provisions of these Terms will remain unimpaired.
14.6. Publicity. Neither Party will issue any press releases or make any social media posts referencing the other Party except with the prior written permission of the other Party or as required by Applicable Law. Without limiting the foregoing, Kipsy may use your company name, logo, or marks for the purpose of marketing the Services without prior approval, unless you have opted out of such marketing uses by emailing support@kipsy.com prior to Kipsy’s use. Kipsy will use commercially reasonable efforts to promptly cease all future uses of your company name, logo, or marks for the purpose of marketing the Services following receipt of such opt out notice.
14.7. U.S. Government Users. The Services use a technology platform that is a “commercial item”, as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government customers and /or users acquire such software and documentation with only those rights set forth herein. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Kipsy to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
14.8. Export. You represent and covenant that you are not named on any U.S. government agency’s sanctioned or denied-party list. You will not, and will not permit any person, company, or entity to, access or use the Services in violation of any applicable export law or regulation. Notwithstanding any other provision of these Terms, Kipsy reserves the right to limit or deny access to the Services to any person who is named on or subject to any U.S. government agency’s sanctioned or denied-party list.
14.9. Entire Terms. These Terms reflects the entire agreement between the Parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the Parties. Kipsy may supply different or additional terms for other programs or services, including different or additional terms govern such other programs or services. Notwithstanding the foregoing, these Terms governs your use of the Services, and if there is a conflict between these Terms and the additional terms, these Terms will control for that conflict to the extent it relates to your use of the Services.
14.10. Interpretation. In these Terms: (a) the headings are for convenience only and will not affect the meaning or interpretation of these Terms; (b) the words “herein,” “hereunder,” “hereby”, and similar words refer to these Terms as a whole (and not to the particular sentence, paragraph, or section where they appear); (c) terms used in the plural include the singular, and vice versa, unless the context clearly requires otherwise; and (d) “or” is used in the sense of “and/or”; “any” is used in the sense of “any or all”. If an ambiguity or question of intent or interpretation arises, then these Terms will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the terms hereof or thereof.
14.11. Miscellaneous. Kipsy’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms is intended solely for the benefit of the Parties and are not intended to confer third party beneficiary rights upon any other person, company, or entity. Except as explicitly provided, the remedies provided to the Parties under these Terms are cumulative and will not exclude any other remedies to which a Party may be lawfully entitled.