Terms Of Service

Updated – 30 Jan, 2016 11:30 AM

Welcome to Kiwi!

Kiwi, Inc. (“Kiwi,” “we,” “us,” and/or “our”) provides its interactive entertainment platform to you through its website located at www.kiwiup.com (the “Site”) and its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). These Terms of Service apply to all users of the Service, including both users who provide original content (including, but not limited to text, audio, visual, audiovisual or other content, information, and materials) to be used in connection with the Services (the “Creators”) and users who read, watch, listen to or otherwise interact with and share content from the Service (the “Readers”). For the purposes of these Terms of Service, reference to user means Creators, Readers and any other users of the Services.

We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time without further notice. You should periodically visit this page to review the current Terms of Service so you are aware of any revision to which you are bound. If we do this, we will post the changes to these Terms of Service on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Service and to review such changes.

In addition, when using certain services, you shall be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy located at www.kiwiup.com/privacy. All such terms are hereby incorporated by reference into these Terms of Service.

Access and Use of the Service

Your Registration Obligations: You may be required to register with Kiwi in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service’s registration form. Registration data and certain other information about you are governed by our Privacy Policy.

Eligibility: Services are intended for general audiences and are not intended to be used by children under the age of 13.  By using the Services, you affirm that you are at least 18 years of age or that you have reviewed these Terms of Service with your parent or guardian and he or she assents to these Terms of Service on your behalf and takes full responsibility for your compliance with them.  You agree that you and/or your parent or guardian are fully able and competent to agree to and comply with these Terms of Service.  If you are under 13 years of age, you are not authorized to register for a Kiwi member account and may be restricted from access to certain Services.

Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Kiwi of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Kiwi will not be liable for any loss or damage arising from your failure to comply with this Section.

Modifications to Service: Kiwi reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Kiwi shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

General Practices Regarding Use and Storage: You acknowledge that Kiwi may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Kiwi’s servers on your behalf. You agree that Kiwi has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. You acknowledge that Kiwi reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Kiwi reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Kiwi and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Kiwi account information to ensure that your messages are not sent to the person that acquires your old number.

Conditions of Use

User Conduct: Whether you are a Creator, a Reader or any other type of Service user, you are solely responsible for all storylines, text, music, sound, photographs, graphics, video, messages, information, data or other materials (“content”) that you upload, post, publish or display (hereinafter, “post”) or email or otherwise transmit or use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Kiwi. Kiwi reserves the right to investigate and take appropriate legal action against anyone who, in Kiwi’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to: a) post, email or otherwise transmit any content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful racially, ethnically or otherwise objectionable; (ii) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (iv) infringes any intellectual property or other proprietary rights of any party; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (vii) in the sole judgment of Kiwi, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Kiwi or its users to any harm or liability of any type; b) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; c) solicit personal information from anyone under the age of 18; d) harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications; e) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized; f) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or g) violate any applicable local, state, national or international law, or any regulations having the force of law; h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.

Fees: You acknowledge that Kiwi reserves the right to charge for any portion of the Service and to change its fees (if any) from time to time in its discretion. You agree to pay all fees when due in accordance with the terms set forth on the Site.

Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.

Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service (including, but not limited to any storylines or related content accessible through the Services). The Service is for your personal use and may not be used for direct commercial endeavors.

Intellectual Property Rights

Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content (“Service Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Kiwi, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service, whether in your role as a Creator, Reader or other user of the Services. In connection with your use of the Service you shall not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of Kiwi, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Kiwi.

The Kiwi name, logo and any other Kiwi logos and product and service names are trademarks and service marks of Kiwi (collectively the “Kiwi Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Kiwi. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Kiwi Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Kiwi Trademarks will inure to our exclusive benefit.

Third-Party Material: Under no circumstances will Kiwi be liable in any way for any content posted by third parties or at the direction of users (including User Content (as defined below)), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise transmitted via the Service. You understand that when using the Site or the Service, you will be exposed to User Content from a variety of sources, and that Kiwi is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Kiwi with respect thereto, and agree to indemnify and hold Kiwi, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Site or Service. You acknowledge that Kiwi does not pre-screen content, but that Kiwi and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any content (including without limitation User Content) that is available via the Service. Kiwi does not permit copyright infringing activities and infringement of intellectual property rights on its Site or Service, and Kiwi will remove all content and User Content if properly notified that such content or User Content infringes on another's intellectual property rights or contravenes any applicable privacy legislation. Without limiting the foregoing, Kiwi and its designees shall have the right to remove any content that violates these Terms of Service or is deemed by Kiwi, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

User Content Posted on the Site: Any Service user may submit content and other materials including but not limited to textual, audio, visual, or audiovisual content (collectively, “User Content”) such as the storylines, characters, images, photos or animations of Creators or the opinions, messages or feedback of Readers or other Services users. You understand that whether or not such User Content is published, Kiwi does not guarantee any confidentiality with respect to any User Content. Whether you are a Creator, Reader or other Services user, you are solely responsible for the User Content you post on or through the Service or the Site or transmit to or share with other users or recipients, and the consequences of posting or publishing them. In connection with User Content, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize Kiwi to use all patent, trademark, trade secret, copyright, rights of publicity or other proprietary rights in and to any and all User Content and have all necessary consents to collect, use and disclose any personally identifiable information contained or displayed in any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Site, Service and these Terms of Service. You further agree that you will not post any content that content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein, unless you are the owner of such rights or have permission from their rightful owner and the necessary consents from any individuals whose personally identifiable information is contained in such material to post the material and to grant Kiwi all of the license rights granted herein. By posting any User Content you hereby grant and will grant Kiwi and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. Furthermore, if you are a Creator, you grant Kiwi the right, but not the obligation to identify you as the contributor of any User Content related to the content available through Kiwi’s Services.  You also hereby grant each user of the Site or Service a non-exclusive license to access your User Content through the Site and Service.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to Kiwi are non-confidential and Kiwi shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

You acknowledge and agree that Kiwi may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Kiwi, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements

Submit a copyright infringement notification [link to web form]

Respect of Third Party Rights: Kiwi respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.

Repeat Infringer Policy: Kiwi’s intellectual property policy is to (a) remove or disable access to material that Kiwi believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (b) remove any User Content you posted to the Service if you are a “repeat infringer” and terminate your right to use the Service. You are a “repeat infringer” if you are a user that has posted User Content or User Submissions to or through the Service and for whom Kiwi has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to your User Content or User Submissions. Kiwi has discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon Kiwi’s own determination.

Procedure for Reporting Claimed Infringement: If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Kiwi with the User alleged to have infringed a right you own or control or the general public, and you hereby consent to Kiwi making such disclosure. Your communication must include substantially the following:

1) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;

2) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;

3) Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Kiwi to locate the material;

4) Information reasonably sufficient to permit Kiwi to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;

5) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

 

6) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.

Designated Agent Contact Information: Kiwi’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:

Via web form: Copyright Infringement Notification Form [link to web form]

Via e-mail: copyright@kiwiup.com

Via US mail: Kiwi, Inc., 460 S. California Avenue, #201, Palo Alto, CA 94306

Counter Notification: If you receive a notification from Kiwi that material you made available on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Kiwi with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Kiwi’s Designated Agent through one of the methods identified above and include substantially the following information: 

1) A physical or electronic signature of the subscriber;

2) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

3) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

4) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Kiwi may be found, and that the subscriber will accept service of process from the person who provided notification under Section 19.b above or an agent of such person.

 

A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.

False Notifications of Claimed Infringement or Counter Notifications: The Copyright Act provides that: [a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Kiwi] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f).

Kiwi reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.

For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act (the “DMCA”) or the procedures set forth in this Section 19 should be sent to the Designated Agent at copyright@kiwiup.com or to the postal addresfs identified above.

If you submit User Content to the Service then you authorize Kiwi to act as your agent to issue take down notices under the DMCA and/or any other similar legislation that allows for the submission of requests to Internet service providers for the removal of infringing or allegedly infringing copyright materials that are contained in or displayed on such service providers platforms and/or services. In general you will be responsible for monitoring and enforcing your rights in your User Content, however, in certain cases if Kiwi becomes aware of infringement of User Content and/or other content from the Service, then Kiwi may in its sole discretion elect to issue take down notices under the DMCA or similar legislation to attempt to curtail such infringement.

Apple-Enabled Software Applications

Kiwi offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:

Kiwi and you acknowledge that these Terms of Service are concluded between Kiwi and you only, and not with Apple, and that as between Kiwi and Apple, Kiwi, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.

You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.

Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iPhone OS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.

Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.

Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Kiwi’s sole responsibility, to the extent it cannot be disclaimed under applicable law.

Kiwi and you acknowledge that Kiwi, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

In the event of any third-party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Kiwi and Apple, Kiwi, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Kiwi as follows:

info@kiwiup.com

460 S. California Avenue, #201
Palo Alto, CA 94306
650-521-0481

Kiwi and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enable Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enable Software as a third party beneficiary thereof.

Third-Party Websites

The Service may provide, or third parties may provide, embedded content from or links or other access to other sites and resources on the Internet. Kiwi has no control over such sites and resources and Kiwi is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Kiwi shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Kiwi is not liable for any loss or claim that you may have against any such third party.

Third-Party Services

You may enable various online services to be directly integrated into your Kiwi experience. By directly integrating these services into the Service, we make your online experiences richer, and more personalized. To take advantage of these features, we may ask you to register for or log into the services on the websites of their respective providers. By enabling third-party services within the Service, you are allowing us to pass your log-in information to these service providers for this purpose. For more information about the implications of activating these third party services and Kiwi’s use, storage and disclosure of information related to you and your use of such services within Kiwi (including your friend lists and the like), please see our Privacy Policy. However, please remember that the manner in which third-party services use, store and disclose your information is governed solely by the policies of such third parties, and Kiwi shall have no liability or responsibility for the privacy practices or other actions of any third-party site or service that may be enabled within your Service. In addition, Kiwi is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with third party services. As such, Kiwi is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party service. Kiwi enables these features merely as a convenience and the inclusion of such features does not imply an endorsement or recommendation.

Indemnity and Release

You agree to release, indemnify and hold Kiwi and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another.

Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. KIWI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

KIWI MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT KIWI SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KIWI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL KIWI’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID KIWI IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

Arbitration

At Kiwi’s or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before J.A.M.S./Endispute, Inc., or its successor. Unless otherwise agreed by the parties, arbitration will be held in San Jose, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by J.A.M.S./Endispute, Inc., and will be conducted in accordance with the rules and regulations promulgated by J.A.M.S./Endispute, Inc. unless specifically modified in the Terms of Service. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.

Termination

You agree that Kiwi, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Kiwi believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Kiwi may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Kiwi may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Kiwi shall not be liable to you or any third-party for any termination of your access to the Service.

User Disputes

You agree that you are solely responsible for your interactions with any other user in connection with the Service and Kiwi will have no liability or responsibility with respect thereto. Kiwi reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

General

These Terms of Service constitute the entire agreement between you and Kiwi and govern your use of the Service, superseding any prior agreements between you and Kiwi with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or thirdparty services, third-party content or third-party software. These Terms of Service shall be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Kiwi agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Santa Clara County, California. The failure of Kiwi to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.

Your Privacy

At Kiwi, we respect the privacy of our users. For details please see our Privacy Policy. By using the Service, you consent to our collection and use of personal data as outlined therein.

Questions? Concerns? Suggestions?

Please contact us at info@kiwiup.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.

Contact Us:

460 S. California Avenue, #201
Palo Alto, CA 94306
support@kiwiup.com