Effective: August 24, 2024
PLEASE BE AWARE THAT THIS AGREEMENT INCLUDES A BINDING ARBITRATION PROVISION AND A WAIVER OF CLASS ACTION RIGHTS, WHICH ARE OUTLINED IN THE SECTION TITLED “DISPUTE RESOLUTION, GOVERNING LAWS AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS”. BY AGREEING TO THESE TERMS, YOU ARE CONSENTING TO RESOLVE ANY DISPUTES THROUGH INDIVIDUAL ARBITRATION RATHER THAN THROUGH A CLASS ACTION LAWSUIT.
This agreement is between you and Terahertz, Inc., doing business as Kiwy, a Virginia corporation, along with its affiliated companies and websites (collectively referred to as “Kiwy”, “Company”, “we”, or “us”). These Terms of Use, including any documents referenced herein, outline the terms and conditions that govern your access to and use of our websites, including heykiwy.com, kiwy.co, and other Kiwy domains, as well as any mobile or desktop applications we offer (each referred to as an “App”). These Terms of Use also apply to any content, functionality, and services provided on or through our websites and Apps, including Kiwy codes (collectively referred to as the “Sites”).
It’s essential to carefully review these Terms of Use, as they include important provisions, such as a waiver of class action rights and a requirement to resolve certain disputes through individual arbitration, unless you opt-out within the specified timeframe. By using our Sites, downloading our App, or clicking to accept these Terms of Use, you acknowledge that you have read, understood, and agree to be bound by them. You also authorize us to collect, use, disclose, and handle your information as outlined in our Privacy Policy. If you disagree with these Terms of Use or our Privacy Policy, please do not use our Sites. If you are using our Sites on behalf of a company or entity, you represent and warrant that you are an authorized representative with the authority to bind the entity to these Terms of Use and any related agreements. In this case, all references to “you” in these Terms of Use will include both you and the entity, and you agree to these Terms of Use on the entity’s behalf.
Our Sites are intended for users who are at least 18 years old. By accessing or using any of our Sites, you confirm that you meet this age requirement and are legally able to form a binding contract with us. If you are under 18, please do not use our Sites.
We reserve the right to update and revise these Terms of Use at any time, in our sole discretion. When we do, we’ll post the revised version on our Sites and update the “Effective Date” above. If you don’t agree with the changes, you can reject them by stopping your use of our Sites and contacting us at [email protected] to request that we terminate your account, before the new Effective Date. If you don’t take these steps, the revised Terms of Use will take effect on the updated Effective Date and apply to your continued use of our Sites. We’ll give you at least 30 days notice of any changes, unless you choose to accept them sooner by clicking to accept or using a new feature that’s subject to the updated terms. However, changes to our Dispute Resolution, Governing Laws and Agreement to Arbitrate on an Individual Basis Section will be handled separately, as outlined in that section. It’s your responsibility to regularly review these Terms of Use to stay informed of any changes, as they are binding on you.
We reserve the right to modify or discontinue our Sites, including any services or features we offer, at any time and without notice. This includes disabling any Kiwy code, page, or app. We may also restrict access to certain parts of our Sites or entire Sites, including for registered users or those who have signed up for services, as needed. We’re not responsible if our Sites are unavailable for any reason or for any length of time. We may make changes to our Sites, including restricting access, in our sole discretion and without notice. We appreciate your understanding that our Sites are subject to change and may not always be available.
You are responsible for making all arrangements necessary to access our Sites; ensuring that anyone who uses our Sites through your internet connection is aware of and complies with these Terms of Use. To access our Sites, you may need to provide registration details or other information. You must ensure that all information you provide is accurate, up-to-date, and complete. By using our Sites, you agree that we can use and handle your information in accordance with our Privacy Policy. You are solely responsible for all activity on your account, and you must keep your password secure. If you suspect or discover any unauthorized use of your account or password, you must notify us immediately at [email protected]. We are not liable for any losses caused by unauthorized use of your account or password.
By using our Sites, you agree to receive electronic communications from us, including emails and in-service notifications. You confirm that you and any recipients of these communications have consented to receive them, and that you will not use our Sites to send unlawful or unsolicited electronic communications. You also agree to receive all communications and notices related to our services, including those regarding your Subscription Plan, electronically. This includes emails and in-service notifications, which will be considered sufficient to meet any legal requirements for written communication. It’s your responsibility to keep your account contact information, including your email address, up to date.
All content, features, and functionality on our Sites, including text, graphics, images, video, audio, and software, as well as the design and arrangement of these elements (collectively, the “Content”), are the exclusive property of the Company, its licensors, or other providers. This Content is protected by United States and international laws governing copyright, trademark, patent, trade secret, and other intellectual property and proprietary rights.
Kiwy grants you a limited, non-exclusive license to use the Sites for your personal use only, subject to these Terms. This license does not permit reselling or using the Sites for commercial purposes; collecting and using product listings, descriptions, or prices; creating derivative works from the Sites; downloading or copying account information for another business or organization; or using data mining, robots, or similar data gathering tools. You are also prohibited from attempting to discover source code; modifying, publishing, adapting, transmitting, selling, exhibiting, distributing, displaying, reverse engineering, decompiling, disassembling, or reproducing the Sites or any part of them; downloading or copying the Sites (including Content) for any purpose other than personal use without prior written permission from Kiwy. You acknowledge that accessing, downloading, or copying the Sites (including Content) does not grant you ownership rights. Additionally, you may not frame or use framing techniques to enclose Kiwy’s trademarks, logos, or copyrighted material without express written consent.
Except as we may expressly authorize you, you must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Content. However, you are permitted to use the Content in the following ways: you may reproduce, publicly display, republish, download, store, and transmit the QR codes you generate at Kiwy, subject to payment of applicable subscription fees; operate the Kiwy app pages you create, subject to the terms herein and the settings we make available; operate Kiwy tags, subject to the terms herein and the settings we make available; temporarily store copies of materials from our Sites in RAM incidental to accessing and viewing materials; store files that are automatically cached by your browser for display enhancement purposes; print or download one copy of a reasonable number of pages of any of our Sites for your own personal, non-commercial use; and download a copy of the App to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by these Terms of Use and any other applicable Kiwy end user license agreement.
You must not modify copies of any materials from our Sites; delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from our Sites; or alter the appearance or content of a Kiwy code or Kiwy tag. Except for your use of Kiwy QR Codes, Kiwy tags, and Kiwy app pages, which you are free to use for any lawful purpose permitted by these Terms of Use, subject to payment of applicable subscription fees, you must not access or use any part of our Sites for commercial purposes, including any services or materials available through our Sites. If you breach these Terms of Use by printing, copying, modifying, downloading, or otherwise using or providing access to any part of our Sites, your right to use our Sites will terminate immediately, and you must, at our option, return or destroy any copies of materials you have made. No right, title, or interest in our Sites, including any content, is transferred to you, and all rights not expressly granted are reserved by the Company. Any unauthorized use of our Sites may violate copyright, trademark, and other laws, and you agree to abide by all additional restrictions displayed on our Sites as they may be updated from time to time.
You are solely responsible for all User Content, including information, materials, communications, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, video clips, photos, images, reviews, ideas, and other data, materials, and content, including the selection and arrangements thereof, that you create on our Sites; upload to the Kiwy app; or otherwise provide, handle, or link to using the Sites, whether created by you or another user. Kiwy is not responsible for any User Content, and you agree to resolve any issues or claims related to third-party User Content directly with the relevant user, without involving Kiwy. You represent, warrant, and covenant that you own all rights to, or have the necessary consents and licenses to post and display, the User Content, and to grant us the licenses granted in these Terms of Use.
You grant Kiwy a perpetual, worldwide, and transferable license to use, reproduce, modify, display, distribute, and create derivative works from your User Content, in whole or in part, in any media, for the purposes of operating and advertising the Sites; this license is irrevocable, non-exclusive, and royalty-free, and includes the right to sublicense and translate your User Content.
Kiwy complies with applicable intellectual property laws and has a policy of terminating the accounts of repeat infringers. To assist with this policy, Kiwy follows a take-down procedure for purported copyright infringement. If you believe that your work has been used in a way that constitutes copyright infringement, please provide the following information to the Kiwy Copyright Agent: a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Sites; your address, telephone number, and email address; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on such owner’s behalf. If we remove or disable access to content in response to a notice of copyright infringement, or plan to do so, we reserve the right to notify the user who posted the content, allowing them the opportunity to object to your request and respond accordingly.
Contact the Kiwy Copyright Agent at Terahertz Inc dba Kiwy, 1832 Kempsville Road Ste 112 PMB 6, Virginia Beach, VA 23464, Alternative names: Kiwy, heykiwy.com, kiwy.co, terahertz.dev, Email: [email protected].
When you create a Kiwy account, use your Kiwy tag or Kiwy QR Code, or access certain features on our Sites, you may receive personal information about other users or individuals. We refer to these features and services collectively as “Data Services”. You are required to collect, use, and disclose any personal information you receive from or through us in accordance with applicable laws, including those related to notices, consent, cookies, tracking technologies, data sharing, and direct marketing, such as the California Consumer Privacy Act (CCPA). You are solely responsible for ensuring your compliance with these laws. We reserve the right to restrict or prevent the disclosure of personal information to or by you if we deem it necessary to comply with legal requirements, and we may apply opt-outs or other privacy preferences communicated to us by or on behalf of users to your Kiwy app and related data.
You are only permitted to use personal information received from our Data Services for your own lawful purposes, including marketing, analytics, e-commerce, and communications. You are strictly prohibited from using this information for third-party purposes, including: determining a consumer’s eligibility for credit or insurance; employment purposes; or any other purpose considered permissible under the U.S. Fair Credit Reporting Act. You must provide at least the same level of privacy protection for this information as is required of businesses under the California Consumer Privacy Act (CCPA) and other applicable laws. We reserve the right to take reasonable steps to ensure that you use this information in a manner consistent with our obligations under the CCPA and other applicable laws, and to stop and remediate any unauthorized use. If you determine that you can no longer meet your obligations under the CCPA, other applicable laws, or these Terms of Use, you must notify us immediately at [email protected].
Subscriptions
We may offer various subscription services on our Sites, including Kiwy Free, Kiwy Pro, and Kiwy Teams, which we refer to as a “Subscription Plan”. We reserve the right to modify, suspend, or terminate any Subscription Plan, whether paid or free, at any time and in our sole discretion, subject to our Refund Policy. Additionally, we may choose to charge for services that are currently free, in which case we will notify you by email to the address associated with your subscription, informing you of the timeframe during which you can continue to use the services for free before the changes take effect.
Kiwy Free
When you sign up for Kiwy Free, you will receive a limited number of complimentary Kiwy QR Codes, as specified on the Plans page under the “Kiwy Free” section. Please note that this number is subject to change in accordance with our Terms of Use. If you need to generate additional Kiwy QR codes beyond the free allocation, you will be required to upgrade to a paid Subscription Plan, which is described in more detail below.
Subscription Plan
When you sign up for a Subscription Plan, you are subscribing to an automatically renewing subscription that requires recurring payments at the stated frequency you select on the Plans page, such as monthly or annually; this section applies to Subscription Plans purchased directly with us, while purchases through a third-party App store are subject to the payment terms and conditions of the applicable App store. To sign up for a Subscription Plan, you must provide accurate and complete information for a valid payment method, such as a payment card, that you are authorized to use. By purchasing or signing up for a Subscription Plan, you authorize us or our agent to automatically charge your payment method on a recurring basis at the start of each subscription term for the applicable Subscription Plan charges, any applicable taxes, and other charges incurred in connection with your use of the Sites; your purchase may be subject to foreign exchange fees or differences in prices based on location, such as exchange rates; all Subscription Plan payments are subject to our Refund Policy, described below; and we may calculate taxes payable by you based on the billing information you provide, which taxes you agree to pay in full, without deduction, except as required by law, in which case you shall increase the amount payable as necessary so that we receive and retain the full amount.
If your Subscription Plan fee is not paid on time, or we are unable to process your transaction, and you do not provide a new payment method or settle your balance within 10 days of notification, we reserve the right to suspend, disable, cancel, or terminate your access to the Site or services, or convert your Subscription Plan to a Kiwy Free account. Please note that promotional codes are only valid for your first subscription term, and subsequent renewals will be charged at the full billing amount. If your payment details change, your card provider may update us with new details to prevent service interruption; if you prefer to opt out of this service or update your billing information, please contact us or visit the Kiwy Plan Subscription section of the Billing page in your account. Your Subscription Plan includes additional features compared to the Kiwy Free service, such as increased Kiwy QR Codes, customization options, and advanced analytics; however, we reserve the right to modify or remove benefits and features from a Subscription Plan at any time, and do not guarantee that particular benefits or features will be offered indefinitely. A list of current features included in your Subscription Plan can be found on heykiwy.com and we reserve the right to change prices or alter features and benefits associated with a Subscription Plan.
If we increase the pricing for your Subscription Plan, we will notify you in advance and provide an opportunity to modify your subscription before the changes take effect. The notification will specify the timeframe for making changes to your subscription before the new pricing is applied to your account or charged to your payment method upon automatic renewal. By continuing to use the Site and services after the changes have been implemented, you will be deemed to have accepted the new terms. If you do not wish to continue your subscription with the updated fees or features, you may cancel at any time. To cancel, simply click “Cancel Plan” under the “Kiwy Plan Subscription” section of the Billing page in your account or email [email protected]. Please note that if you cancel your monthly or annual subscription before the end of the current term, your access to Subscription Plan benefits will be terminated, and you will be downgraded to the Kiwy Free plan. Any Kiwy QR Codes exceeding the Kiwy Free plan threshold will be archived and redirected or another location of our choice, and analytics will no longer be available for archived codes. Your Subscription Plan payments are generally non-refundable, unless required by law. However, if we suspend, withdraw, or terminate a Subscription Plan service, we may provide a partial refund of any prepaid fees for services that were not delivered as of the date of termination. This refund will be calculated on a pro-rata basis, taking into account the unused portion of the service.
You may only use our Sites for lawful purposes and in accordance with these Terms of Use; you agree not to use our Sites or services in any way that violates applicable laws or regulations, or any third-party privacy policy or terms and conditions to which you are subject; you also agree not to exploit or harm minors, or engage in any conduct that restricts or inhibits others’ use or enjoyment of our Sites, or exposes them to liability. Furthermore, you agree not to display Kiwy QR Codes or tags to individuals under 16, or in areas where children under 16 are likely to use them; not to use Kiwy QR Codes or tags to lead to content directed to children under 16; not to create links to such content on Kiwy pages; not to create a Kiwy page that is itself directed to children under 16; and not to encourage children under 16 to scan Kiwy QR Codes or tags or use your Kiwy page. Additionally, you agree not to use our Sites to collect or transmit sensitive personal data, personal health information, or other information that is subject to specific laws or regulations, without our written permission; not to transmit harmful or malicious code or content; not to use our Sites in a way that could disable, damage, or impair them, or interfere with others’ use; not to use automatic devices or processes to access our Sites; not to introduce viruses or other malicious material; not to attempt to gain unauthorized access to our Sites or servers; and not to attack our Sites or services in any way.
You agree to promptly notify Kiwy if you become aware that a child under 16 has created or is using any Kiwy QR Codes, tags, or pages, or has provided information through the contact information widget on your Kiwy page. In such cases, you agree to delete any information provided by the underage user and notify Kiwy immediately. Additionally, if you become aware of any other situation where a child under 16 has provided information to Kiwy, you agree to notify us right away.
We disclaim all liability and responsibility for any third-party products or services accessed through or utilizing our Sites, including online properties linked to Kiwy QR Codes, tags, or apps, and any content or services offered by users through our Sites (collectively, “Third-Party Services”). You agree not to imply any partnership, sponsorship, or endorsement by us of Third-Party Services, nor suggest that we are responsible for their views or content. You also agree not to use our Sites in connection with prohibited content or activities that could lead to harm or liability.
Payment for Third-Party Services may be processed through Stripe, subject to additional terms and conditions. When you make a purchase through a Kiwy page, you are entering into a direct contract with the page creator, who is solely responsible for ensuring the Third-Party Service meets all applicable legal requirements and is delivered as described. We reserve the right to remove Third-Party Services that violate our Terms of Use. We do not provide tax or legal advice and will not become involved in disputes between users, including those related to Third-Party Services.
Communications Decency Act Notice
To limit minors’ access to harmful online content, you may consider using commercially available parental control protections, such as computer hardware, software, or filtering services. Companies like McAfee and Symantec, among others, offer these types of protections. However, please note that we did not develop, test, or evaluate these tools, and we do not endorse them. If you choose to use these or other third-party parental control protections, you do so at your own risk. We make no guarantees that these tools will be effective in connection with our Sites, and you should not rely solely on them to restrict access to online content.
EU Digital Services Act (DSA) Disclosures
This section is for individuals entitled to receive disclosures from us under the Digital Services Act (DSA); communications regarding DSA compliance should be directed to [email protected]. Our policies and procedures for moderation of user content are outlined in the Prohibited Uses and Products or Services Accessed Through the Sites sections above; we use human reviewers to evaluate user content for compliance with these terms and make decisions on whether to take action. If we remove your user content, suspend or terminate your account, or take other actions, we will notify you as required by the DSA. If you wish to notify us of user content that you believe violates EU or Member State law, please email us at [email protected] with a detailed explanation of why you believe the content is illegal, the URL of the allegedly illegal content, your name and email address, and a statement confirming your bona fide belief that your notification is accurate or complete. You may also have the right to submit a complaint, free of charge, about certain decisions related to your user content, including removal or restriction of visibility, suspension or termination of your account, or restrictions on monetization; please contact us for more information on submitting a complaint.
To submit a complaint about a decision related to your user content, please email us at [email protected] with a detailed explanation of why you believe our decision was incorrect. Your complaint must include your full name, the email address associated with your account, and a copy of the decision you received from us. Alternatively, you may have the right to submit the dispute to an out-of-court dispute settlement body certified by the relevant EU Member State Digital Services Coordinator. Please note that if you repeatedly submit unfounded or illegal content notices or complaints, we may suspend your account in accordance with the DSA. Additionally, if we have reason to believe that a criminal offense involving a threat to life or safety has occurred or is likely to occur, we may notify the relevant authorities in the applicable EU Member State as required by the DSA.
If you choose to share any comments, suggestions, or recommendations about the Sites (collectively, “Feedback”), you represent and warrant that you have the right to disclose the Feedback, it doesn’t infringe on others’ rights, and it doesn’t contain confidential or proprietary information from third parties. By submitting Feedback, you agree that we’re not obligated to keep it confidential, and we may already be considering or developing similar ideas. You also grant us a perpetual, worldwide, royalty-free license to use, modify, and distribute the Feedback, and you waive any moral rights you may have in it. This means we can use your Feedback without restriction, and you won’t have any claims against us or our users. This Feedback section will remain in effect even if your account or our Sites are terminated.
We reserve the right to monitor your use of the Sites for compliance with these Terms of Use; take legal action, including referral to law enforcement, for any unauthorized or illegal use; and terminate or suspend your access to all or part of the Sites for any reason, including violations of these Terms. We may also cooperate fully with law enforcement authorities or court orders requesting disclosure of user information. YOU AGREE TO RELEASE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, LICENSORS, AND SERVICE PROVIDERS FROM ANY CLAIMS ARISING FROM ACTIONS TAKEN BY US OR LAW ENFORCEMENT AUTHORITIES DURING OR AS A RESULT OF INVESTIGATIONS. We will not be liable for any consequences of our actions taken in accordance with this section.
We do not guarantee the accuracy, completeness, or usefulness of any information or materials presented on our Sites, including user-generated content, and information about QR code safety or risk. You acknowledge that any reliance on such information or materials is entirely at your own risk. We disclaim all liability and responsibility for any harm or damage that may result from relying on this information, whether by you or anyone else who may access our Sites or be informed of their contents. By using our Sites, you assume full responsibility for verifying the accuracy and reliability of the information presented.
We reserve the right to update the content on our Sites periodically, but we do not guarantee that the information is comprehensive or current. The material on our Sites may be outdated at any given time, and we are not obligated to update it. Additionally, we may discontinue or modify the Sites or specific features, either temporarily or permanently, with or without notice to you. We may also impose usage limits on the Sites or restrict access to certain users or groups.
The Company name, Kiwy, and all associated logos, artwork, product names, designs, and slogans displayed on our Sites are trademarks of the Company, its affiliates, or licensors, and are protected by law. You are not permitted to use these trademarks without obtaining prior written permission from the Company. Additionally, all other trademarks, logos, product names, designs, and slogans appearing on the Sites are the property of their respective owners and are also protected by law.
Our Sites may allow you to purchase goods or services, or provide links to other Sites that offer such purchases. Any transactions made through our Sites, including purchases, are subject to additional terms of sale, which will be provided to you at the time of purchase. For example, when making purchases through the App, you may be subject to the terms of Apple iTunes, Google Play, or the Microsoft Store, which can be found on their respective websites. Additionally, specific portions, services, or features of our Sites may be subject to extra Kiwy terms and conditions, which are incorporated into these Terms of Use by reference. Please also see the “Products or Services Accessed Through the Sites” section above for terms related to Third Party Services. By making a purchase or engaging in a transaction, you agree to be bound by these additional terms and conditions.
Kiwy Physical Products Terms
You are permitted to link to the homepage of our Sites, as long as you do so in a fair and lawful manner that does not harm our reputation or imply an association, partnership, or endorsement without our prior consent. We may include links to third-party sites and resources on our Sites for your convenience, including links in advertisements; however, we have no control over the content of these sites and accept no responsibility for any loss or damage that may result from your use of them. If you choose to access third-party websites linked to or through our Sites, you do so entirely at your own risk and subject to the terms and conditions of those websites. We disclaim any liability for the content or accuracy of these third-party sites, and you assume all risk associated with accessing them.
Kiwy is a US-based company, specifically located in the Commonwealth of Virginia, and our Sites are intended for use by individuals within the United States. We do not represent that our Sites or their content are accessible or suitable for use outside of the US. If you access our Sites from outside the US, you are doing so at your own initiative and are responsible for ensuring compliance with the laws of your local jurisdiction. Please note that accessing our Sites may be restricted or prohibited in certain countries or for certain individuals, and it is your responsibility to determine whether your use of our Sites is permitted under local law.
If you access the App via the Apple App Store, including for iPhone, iPad, iTouch, and iWatch, the following additional terms apply; both you and Kiwy acknowledge that the Terms of Use are concluded between you and Kiwy only, and not with Apple, and that Apple is not responsible for the iOS App or its content; the iOS App is licensed to you on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely for private, personal, non-commercial use in connection with Kiwy services, subject to all terms and conditions of these Terms of Use. You will only use the iOS App with an Apple device that you own or control; you acknowledge that Apple has no obligation to provide maintenance and support services for the iOS App; in the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple’s sole warranty obligation will be to refund the purchase price, if any. You acknowledge that Apple is not responsible for addressing any claims related to the iOS App, including product liability claims, claims that the iOS App fails to conform to applicable laws, and claims arising under consumer protection or similar legislation; you also acknowledge that Apple will not be responsible for investigating, defending, settling, or discharging any infringement claim related to the iOS App. You represent and warrant that you are not located in a country subject to a U.S. Government embargo or designated as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; you agree to comply with any applicable third-party terms of agreement that may affect your use of the iOS App. Both you and Kiwy acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of this section of the Terms of Use, and that Apple will have the right to enforce this section against you as a third-party beneficiary upon your acceptance of these Terms of Use.
Disclaimer of Warranties
We cannot guarantee that files downloaded from our Sites or the internet, or destinations reached after scanning a Kiwy QR Code or tag, will be free from viruses or destructive code. You are responsible for implementing sufficient anti-virus protection and data backup procedures. We may offer features that warn about potential risks, but we do not guarantee that these features will identify every important risk. TO THE FULLEST EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL DUE TO YOUR USE OF OUR SITES OR SERVICES. YOUR USE OF OUR SITES, CONTENT, AND SERVICES IS AT YOUR OWN RISK. OUR SITES, CONTENT, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. WE DO NOT WARRANT THAT OUR SITES, CONTENT, OR SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE. THIS DISCLAIMER DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, WE, OUR AFFILIATES, LICENSORS, LICENSEES, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM YOUR USE OF OUR SITES, LINKED WEBSITES, OR CONTENT AND SERVICES PROVIDED THROUGH THEM. THIS INCLUDES DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, AND PUNITIVE DAMAGES, SUCH AS PERSONAL INJURY, EMOTIONAL DISTRESS, LOSS OF REVENUE, PROFITS, BUSINESS, OR DATA, WHETHER CAUSED BY TORT, BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. HOWEVER, THIS LIMITATION DOES NOT APPLY TO LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SPECIFICALLY, IF YOU ARE A NEW JERSEY RESIDENT, THIS SECTION DOES NOT PREVENT RECOVERY OF CERTAIN DAMAGES, INCLUDING PUNITIVE DAMAGES, IF YOU PROVE THAT THE HARM SUFFERED WAS THE RESULT OF OUR ACTUAL MALICE OR WANTON AND WILLFUL DISREGARD FOR PERSONS WHO MIGHT BE HARMED. ADDITIONALLY, THIS SECTION DOES NOT LIMIT OUR TORT LIABILITY UNDER NEW JERSEY LAW FOR INTENTIONAL OR RECKLESS CONDUCT.
Indemnification
You agree to defend and hold harmless the Company, its affiliates, licensors, licensees, service providers, officers, directors, employees, contractors, agents, suppliers, successors, and assigns from any claims, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising from your breach of these Terms of Use or your unauthorized use of our Sites, content, services, or products. This includes any claims related to your use of information obtained from our Sites or your use of third-party websites linked from our Sites. We reserve the right to assume the defense and control of any disputes at our own expense, and you agree to cooperate with us in asserting any available defenses. By using our Sites, you agree to indemnify and hold us harmless from any claims or damages resulting from your actions.
Dispute Resolution, Governing Laws and Agreement to Arbitrate on an Individual Basis
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
The term “Disputes” refers to any past, present, or future disputes, claims, or causes of action between you and Kiwy arising out of or relating to these Terms of Use, the Sites, or any other dispute between you and Kiwy or its licensors, distributors, suppliers, or agents. This includes claims and causes of action that have already accrued, based on events that have already occurred. There are three types of Disputes: Special Disputes, which are described below; Consumer Disputes, which are disputes with you in your capacity as a consumer, meaning you are acting primarily for personal, family, or household purposes; and Commercial Disputes, which are all other disputes. Consumer Disputes and Commercial Disputes are subject to the Arbitration Agreement below, whereas Special Disputes are handled differently as described in the section entitled “Litigation of Intellectual Property Claim, Small Claims Court Claims, and Enforcement of Time Bars.”
These Terms of Use, including the arbitration agreement, will be interpreted and governed by the laws of the Commonwealth of Virginia, without consideration of conflict-of-law or choice-of-law principles. The arbitration agreement, its scope, interpretation, and enforcement, will also be governed exclusively by the United States Federal Arbitration Act (FAA), without regard to conflict-of-law or choice-of-law principles. Additionally, you and Kiwy agree that any arbitration will be conducted on an individual basis, and not as a class, group, or representative action. This means that you and Kiwy will resolve disputes through individual arbitration, rather than through a collective or class action.
Initial Dispute Resolution
Before filing a formal claim, we encourage you to try to resolve any disputes with us informally by contacting our support team at [email protected]. We will also make reasonable efforts to contact you to resolve any claims we may have before taking formal action. If we cannot resolve the dispute within 30 days, either party may initiate arbitration as described below. Please note that failure to engage in this informal process may result in fees being awarded against you in arbitration. Notwithstanding our agreement to resolve disputes through arbitration, either party may bring a lawsuit in state or federal court to protect intellectual property rights, such as patents, copyrights, and trademarks. Additionally, either party may elect to have disputes resolved in small claims court if they are within the court’s jurisdiction. We may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a claim is time-barred or may be brought in small claims court. For any dispute not subject to arbitration, or any action to compel arbitration or confirm an arbitration award, you and Kiwy agree to submit to the personal and exclusive jurisdiction of the federal and state courts located in the Commonwealth of Virginia. You agree to accept service of process by mail and waive any jurisdictional and venue defenses.
The rest of this section on Dispute Resolution, Governing Laws and Agreement to Arbitrate on an Individual Basis is the “Arbitration Agreement”:
Binding Arbitration
If we are unable to resolve a dispute informally within 30 days of starting the informal dispute resolution process, either party may initiate binding arbitration as the sole means of resolving the claim. This means that if we cannot come to a mutually agreeable solution within 30 days, we will proceed to binding arbitration, subject to the terms outlined below.
Any Commercial Disputes and Consumer Disputes claims related to these Terms will be resolved through binding arbitration administered by National Arbitration and Mediation (NAM). The arbitration will be conducted in accordance with NAM’s Comprehensive Dispute Resolution Rules and Procedures, excluding any rules that permit class or representative actions. For Commercial Disputes, NAM’s Comprehensive Fees and Costs will also apply, while for Consumer Disputes, NAM’s Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures will apply. You can find the applicable NAM rules and procedures on their website or by emailing NAM’s Commercial Department at [email protected]. If NAM is unavailable to arbitrate, we will select an alternative arbitration provider.
Unless otherwise specified in the section on “Litigation of Intellectual Property Claims, Small Claims Court Claims, and Time Bars”, the arbitrator will have exclusive authority to resolve all disputes related to the interpretation, applicability, enforceability, and formation of these Terms of Use. This includes disputes over whether a claim is subject to arbitration, the payment of NAM administrative or arbitrator fees, and any claims that these Terms of Use are void or voidable. The arbitrator will have the power to grant relief that would be available in a court of law or equity, and may allow the filing of dispositive motions to efficiently resolve or narrow issues in dispute. The arbitrator’s decisions will be binding, and the parties agree to be bound by their rulings.
The arbitrator’s decision will be written and binding on both parties, and can be enforced as a judgment in any court of competent jurisdiction. However, the arbitration award will only apply to the parties involved in the arbitration and will not affect any disputes with third parties. The prevailing party in the arbitration may be entitled to attorneys’ fees, but only if permitted by the applicable law governing the claims. By agreeing to arbitration, both parties acknowledge that they are giving up their right to a jury trial and the opportunity to sue in court. Additionally, the parties understand that arbitration may be more expensive than litigation and may have more limited discovery options. Despite these limitations, the parties agree to be bound by the arbitrator’s decision.
Any arbitration demand or counterclaim made by either party must provide clear and sufficient information to give the other party fair notice of the claims being made. This includes identifying the party making the claim, describing the claims, and outlining the factual basis for the claims. Additionally, the claimant must provide proof that they are a party to this Arbitration Agreement and these Terms of Use. If the arbitrator or NAM determines that the demand or counterclaim does not meet these requirements, they may require amendments to be made. Furthermore, the arbitrator has the authority to impose sanctions on any claims that are deemed frivolous or improper, as determined by the standards set forth in Federal Rule of Civil Procedure 11.
You are responsible for paying your own attorneys’ fees, unless the arbitration rules or applicable law state otherwise. NAM has the discretion to modify the administrative or arbitration fees due under its rules, as long as this modification does not increase the costs to you. You agree to waive any objections to such fee modifications. Additionally, if either party challenges the fees imposed by NAM in good faith, this challenge will not be considered a default, waiver, or breach of this Dispute Resolution section while the challenge is pending before NAM, the arbitrator, or a court of competent jurisdiction. This means that you can dispute the fees without penalty, and the dispute will be resolved through the arbitration process.
For disputes involving $10,000 or less, where you are not seeking injunctive or declaratory relief, the arbitration will be conducted solely through written documents submitted by you and Kiwy, unless the arbitrator decides a hearing is necessary. For disputes exceeding $10,000 or where declaratory or injunctive relief is sought, either party can request a hearing, or the arbitrator may decide to hold one. Any hearing will be conducted via videoconference or telephone conference, unless both parties agree to a different arrangement. This allows for a more efficient and streamlined process for smaller disputes, while still providing the opportunity for a hearing in more complex cases.
For Commercial Disputes, the arbitration will take place in Virginia Beach, Virginia, unless you and Kiwy mutually agree on a different location. Additionally, both parties will be responsible for paying their own share of NAM fees, including filing, administrative, and arbitrator fees, as outlined in NAM’s rules. This means that each party will bear their own costs associated with the arbitration process, unless otherwise agreed upon.
For Consumer Disputes, the arbitration will be conducted in English and will take place at a location within the United States that is convenient for you. You also have the option to participate in the arbitration via video or phone, and if you choose to do so, Kiwy will also participate remotely. If the arbitration is held in Virginia Beach, Virginia, both parties agree to submit to the jurisdiction of the federal or state courts in Virginia Beach. This means that if a court proceeding is necessary to enforce the arbitration agreement, stay proceedings, or confirm the arbitrator’s award, you and Kiwy agree to accept the jurisdiction of the Virginia Beach courts. Additionally, both parties agree to accept service of process by mail and waive any objections to jurisdiction or venue.
If any part of this Arbitration Agreement is found to be invalid by an arbitrator or court, the parties agree that the arbitrator or court should try to uphold the intention behind the invalid provision. The remaining provisions of the Arbitration Agreement will still be valid and enforceable, unless otherwise specified in the “Class Action Waiver” section below. This means that even if one part of the agreement is deemed invalid, the rest of the agreement will remain in effect.
This section applies only to Consumer Disputes. To streamline the arbitration process, if 100 or more similar arbitration demands are submitted to NAM (or another arbitration provider) against Kiwy within a short period, the parties agree to process them in batches of 100 demands at a time. This is known as a “Mass Filing”. The parties agree to divide the Mass Filing into batches of 100 demands, with one batch processed at a time; appoint one arbitrator for each batch; accept applicable fees, including any fee reductions determined by NAM; not file, process, or adjudicate any other demands in the Mass Filing until the prior batch is complete; pay fees associated with a demand for arbitration only after it is included in a batch and that batch is designated for filing, processing, and adjudication; and continue the batched proceedings until each demand is adjudicated or resolved.
Arbitrator selection for each batch will follow NAM rules and procedures as closely as possible. The arbitrator will determine the location of the proceedings. If your demand for arbitration is part of a Mass Filing, the statute of limitations for your claims will be tolled until your demand is decided, withdrawn, or settled.
You agree to work cooperatively with Kiwy and the arbitration provider to implement an efficient “batch approach” or similar process for resolving claims. This includes paying combined reduced fees, as determined by NAM, for each batch of claims. The parties also agree to collaborate with the arbitration provider or arbitrator to establish any additional processes or procedures that will facilitate the efficient resolution of claims. For instance, if the number of cases filed requires adjustments to the batch size, NAM may increase or decrease the batch size, or transfer a case between batches, at the discretion of the NAM procedural arbitrator. Any disputes between the parties regarding the application or implementation of this provision will be resolved by a NAM procedural arbitrator. The “Batching” subsection does not modify the threshold for applying NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, nor does it permit or authorize class arbitration in any form. The batching process is solely intended to streamline the arbitration of individual claims, not to facilitate class-wide arbitration.
The arbitrator will issue a decision within the timeframe set by NAM’s rules and procedures. The decision will include the key findings and conclusions that support the award. The award can be enforced in any court with jurisdiction. The arbitrator has the power to award individual monetary damages and grant individual non-monetary relief, as allowed by applicable law, the arbitral forum’s rules, and this Arbitration Agreement. However, any damages or relief awarded must be consistent with the “Dispute Resolution” and “Limitation of Liability” sections of these Terms of Use. The arbitration award will not have any preclusive effect on issues or claims in disputes with non-parties to the arbitration. Attorneys’ fees will only be awarded to the prevailing party if permitted by the applicable substantive law governing the claims in the arbitration.
Class Action Waiver
The parties agree to conduct any arbitration in their individual capacities only, and not as a class action or representative action. By agreeing to this, you and Kiwy explicitly waive the right to file a class action or seek relief on a class basis. YOU AND KIWY AGREE THAT EACH PARTY CAN ONLY BRING CLAIMS AGAINST THE OTHER IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING. HOWEVER, IF KIWY PROVIDES WRITTEN CONSENT, AN ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS, BUT ONLY WITH KIWY’S EXPLICIT WRITTEN AGREEMENT TO CONSOLIDATE.
If a court determines that a particular remedy cannot be enforced through arbitration due to applicable law, then that remedy (and only that remedy) will be separated from the arbitration and may be pursued in court. However, any court proceedings for remedies not subject to arbitration will be stayed until the arbitrable claims and remedies are resolved.
You have the option to opt out of the arbitration provisions (the “Substantive Arbitration and Class Action Waiver Terms”) within 30 days of becoming subject to this version of the Terms of Use. If we make material changes to the “Dispute Resolution” section in a future update, you will have 30 days from the date of notification to opt out of the Substantive Arbitration and Class Action Waiver Terms. To opt out of the Substantive Arbitration and Class Action Waiver Terms, you must send clear written notice of your decision to opt-out to [email protected] and by certified mail to 1832 Kempsville Road Ste 112 PMB 6, Virginia Beach, VA 23464. If you opt out, Kiwy will also not be bound by the Substantive Arbitration and Class Action Waiver Terms.
Kiwy will provide 30 days’ notice of any changes to this “Dispute Resolution” section in a reasonable and legally valid manner. This typically involves posting the update on our website and sending an email notification to account holders. If you’d like to receive email notifications but we don’t have your email address on file, please send a request to [email protected]. Unless you terminate your agreement with Kiwy or opt out of the revised section within 30 days, any unfiled claims that Kiwy is not aware of will be subject to the revised section. If you terminate your agreement without opting out, and your termination takes effect before the updates to this section, the previous version of this section will continue to apply.
If the Company waives a term or condition in these Terms of Use, it does not mean that the Company is waiving any other terms or conditions, or that it will continue to waive the same term or condition in the future. Additionally, if the Company fails to enforce a right or provision under these Terms of Use, it does not mean that the Company is giving up that right or provision. If a court or tribunal determines that any part of these Terms of Use is invalid, illegal, or unenforceable, that part will be removed or limited to the minimum extent necessary, and the remaining parts of the Terms of Use will remain in full effect.
Unless explicitly stated otherwise in these Terms of Use, no third parties are intended to benefit from or have rights under these Terms of Use. The agreement is solely between you and Kiwy.
You may not assign, subcontract, delegate, or transfer your rights and obligations under these Terms of Use to anyone else without our prior written consent. Any attempt to do so without our consent will be invalid and have no effect.
These Terms of Use, along with any additional terms and conditions we provide, including terms of sale, form the complete and exclusive agreement between you and Kiwy regarding our Sites. They replace all previous and current understandings, agreements, representations, and warranties, whether written or oral, related to our Sites.
The section headings in these Terms of Use are for organizational purposes only and do not have any legal significance. You agree that the fact that Kiwy drafted these Terms of Use will not be used against us in their interpretation. Additionally, whenever the words “include”, “includes”, or “including” are used, they will be understood to mean “including, but not limited to”. Our Sites are owned and operated by Terahertz, Inc., located at: 1832 Kempsville Road Ste 112 PMB 6, Virginia Beach, VA 23464. If you have any questions, concerns, or need assistance with our Sites, please don’t hesitate to reach out to us at [email protected]. We’re here to help!