Kiwi Terms Of Service
We reserve the right, at our sole discretion, to modify this Terms of Service, or any portion thereof at any time with or without notice to you. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Service user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.2. Access and Use of the Service
The “Service” is a platform designed to ask and answer questions, share responses and posts, and to enable individuals communicate online through various media including text, video, and picture sharing.Special Note About User Interactions
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, AND Kiwi WILL HAVE NO LIABILITY OR RESPONSIBILITY WITH RESPECT THERETO. YOU UNDERSTAND THAT Kiwi DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE OR SERVICES, NOR DOES Kiwi MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES, AND Kiwi SHALL HAVE NO LIABILITY TO DO ANY OF THE FOREGOING.
Kiwi RECOMMENDS THAT YOU DO NOT DISCLOSE PERSONAL CONTACT INFORMATION TO OTHER USERS OR MEMBERS. Kiwi DOES NOT RECOMMEND OR ENCOURAGE MEMBERS TO USE THE SITE OR SERVICES TO SOLICIT OTHER MEMBERS TO MEET WITH THEM IN PERSON. Kiwi MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. WHEN ON THE SITE OR SERVICES, IF YOU FEEL UNCOMFORTABLE OR THAT YOU ARE BEING HARASSED, Kiwi RECOMMENDS THAT YOU IMMEDIATELY BLOCK THE USER AND/OR DISCONNECT OR LEAVE FROM THE CHAT.
YOU UNDERSTAND THAT WHEN USING THE SITE OR SERVICES, YOU WILL BE EXPOSED TO CONTENT FROM A VARIETY OF SOURCES, AND THAT Kiwi IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, OR SAFETY OF OR RELATING TO SUCH CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT, WHILE THE SERVICES AND WEBSITE ARE NOT PROVIDED FOR PORNOGRAPHIC PURPOSES OR FOR MAKING SEXUALLY EXPLICIT CONTENT AVAILABLE, YOU MAY BE EXPOSED TO CONTENT THAT YOU DEEM TO BE OFFENSIVE, INDECENT, OBJECTIONABLE, OR SEXUALLY EXPLICIT, 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.Your Registration Obligations and Age Requirement
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 will 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 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 uploaded 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 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.3. Service Assets
All text, graphics, user and visual interfaces, photographs, trademarks, logos, sounds, music, videos, artwork, applications, computer code and associated documentation (collectively, the "Service Assets"), including but not limited to the design, structure, arrangement and "look and feel" of such Content, are owned by or licensed to Kiwi and are protected by copyright, trademark and other intellectual property rights and laws. Except as expressly provided in the Terms of Service, you agree that no part of the Service Assets may be copied, reproduced, sold, republished, transmitted, displayed, reposted or otherwise distributed for public or commercial purposes. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Assets other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service are 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 and logos 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.4. Conditions of Use
Subject to the terms and conditions of this Terms of Service, your use of the Services is subject to all applicable laws and regulations. You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise 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 may not use the Service to:
- use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any manual process to access, acquire, copy or monitor any portion of the Services or any Content or obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Sites;
- attempt to gain unauthorized access to any portion of the Services or any Content, or any systems or networks connected to the Site, by hacking, password "mining" or any other illegitimate means;
- probe, scan or test the vulnerability of the Services or any Content, or any system or network connected to the Site;
- reverse look-up or trace any information of any other user or visitor or otherwise use the Services for the purpose of obtaining information of any user or visitor;
- use any device, software or process to interfere with, or attempt to interfere with, the proper working of the Services or any Content, or any systems or networks connected to the Services, or with any other person's use of the Services;
- post, upload, publish, broadcast, stream, display, submit or transmit any text, words, statements, conversations, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, sexually explicit, nude, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- bully, abuse, harass, stalk, demean, threaten or discriminate against others;
- discuss illegal activity, such as how to obtain or consume illegal drugs and how to make bombs;
- ask for or offer sexually explicit images, and/or material harmful to children;
- send or broadcast any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- impersonate or misrepresent your affiliation with any person or entity; or
- use the Services or any Content for any purpose that is unlawful or prohibited by the Terms of Service.
Any unauthorized use of the Services or any Content may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties. Kiwi has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Kiwi may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Kiwi has no obligation to monitor your access to or use of the Site, Services or Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Kiwi reserves the right, at any time and without prior notice, to remove or disable access to any Content, for any reason, including any User Content that Kiwi, at its sole discretion, considers to be in violation of these Terms of Service or otherwise harmful to the Site or Services, or for no reason at all.User Content Transmitted Through The Service
Any and all content, comments, views, information, data, text, video, image, captions, music, sound, graphics, photos, software, code, audio, sound, music, audio visual combinations, interactive features, feedback, documentation, photographs, discussions, news, articles, messages, postings, listings, and other materials, viewed on, accessed through, displayed on, posted to, transmitted, streamed, or distributed or otherwise made available through the Web site, Services or the Communication Services by users or other third parties (“User Content") are strictly those of the person from which such User Content originated, who is solely responsible for its content. Use of or reliance on User Content is entirely at your own risk and Kiwi expressly disclaims any and all liability in connection with User Content. By posting your User Content on or through the Service, you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. You hereby grant and will grant Kiwi and its affiliated companies a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to copy, display, upload, 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.
Kiwi does not validate, monitor, or endorse any User Content of any user or other licensor, or any opinion, recommendation, or advice expressed therein nor vouch for their reliability. Under no circumstances will Kiwi or its suppliers or agents be liable in any way for any User Content. You acknowledge that creating, submitting or sharing your User Content may give rise to various types of legal liabilities and you represent that your User Content complies at all times (both when first submitted and throughout its accessibility on the Service) with the Terms of Service and all applicable laws. You understand that Kiwi does not pre-screen User Content and is not liable for the content (including User Content) transmitted by users, 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 such content.. You agree that you may not download, reproduce, modify, display, perform, transfer, distribute or otherwise use the Service, except as provided under these Terms of Service, and you agree to take all reasonable steps to prevent the unauthorized use of the Service. Without limiting the foregoing, Kiwi and its designees will 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.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Kiwi are non-confidential and Kiwi will 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.Third Party Sites and Interactions with Third Parties
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet (”Third-Party Sites“). Kiwi has no control over Third-Party Sites or other Internet resources. These resources, content and services are provided to you ”as is“ to facilitate your web browsing. Kiwi does not endorse any Third-Party Sites. Kiwi is providing these links to you only as a matter of convenience, and in no event will Kiwi be responsible for any content, products, or other materials on or available from such Third-Party Sites. In your use of the Service, you may enter into correspondence with, purchase goods and/or services, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. Kiwi will have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party. 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.Third Party Services
You may post and share content through the Service. When posting or sharing content it is your responsibility to clearly and truly identify its nature to ensure its classification in the proper category. This is necessary for the respectful operation of the Service and in order to protect other users by identifying content that may be inappropriate. You acknowledge that you may be exposed to content that is 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 relating thereto.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. The Service is for your personal use and may not be used by you for direct commercial endeavors.Special Notice for International Use; Export Controls
You acknowledge and agree that products, services or technology provided by Kiwi are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, reexport, or transfer Kiwi products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.5. Account Information
Certain features or services offered on or through the Services may require you to open an account (including your name, a user name and password). You are responsible for taking all steps to ensure that no unauthorized person shall have access to your account or password, if any, and are fully responsible for any and all activities that occur under your password or account. It is your sole responsibility to: (i) control the dissemination and use of your account and password; (ii) promptly inform us of any need to deactivate an account or password; and (iii) ensure that you exit from your account at the end of each session when accessing the Service. We are not liable for any harm related to the theft or disclosure of passwords and/or any loss or damage arising from your failure to comply with this Section. You shall immediately notify us of any unauthorized use of your account or password or any breach of confidentiality. You are solely responsible for any damage resulting from the use of your account and username. You may not use your account or password to breach security of another account.6. 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 this Terms of Service, the following terms and conditions apply:
- Kiwi and you acknowledge that this 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 iOS 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:
180 Montgomery St - Suite 650
San Francisco, CA 94104
Kiwi and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of this Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce this Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.7. DMCA
Kiwi respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Kiwi of your infringement claim in accordance with the procedure set forth below.
Kiwi will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Kiwi’s Copyright Agent at team@Kiwi.qa (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
180 Montgomery St - Suite 650
San Francisco, CA 94104
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- 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 or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.Counter-Notice
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Kiwi will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.Repeat Infringer Policy
In accordance with the DMCA and other applicable law, Kiwi has adopted a policy of terminating, in appropriate circumstances and at Kiwi's sole discretion, users who are deemed to be repeat infringers. Kiwi may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.8. Privacy
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICES, THE SITE AND ALL CONTENT INCLUDING USER CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, CURRENTNESS, FREEDOM FROM INTERRUPTION, VIRUSES OR OTHER DEFECT, 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.10. Limitation of Liability
YOUR SOLE REMEDY AGAINST US FOR DISSATISFACTION WITH THE SERVICES OR ANY CONTENT IS TO STOP USING THE SERVICES OR ANY SUCH CONTENT. IN NO EVENT SHALL WE OR OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR CONTENT PROVIDERS (OUR "AFFILIATES") BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE 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), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SITES OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, (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 WILL Kiwi 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.11. Termination
You agree that we may, at any time, and at our sole discretion, terminate your account or suspend or prohibit your access to the Services without prior notice to you for violating any of the Terms of Services or for any other reason whatsoever, 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 will not be liable to you or any third party for any termination of your access to the Service.12. Indemnification and Release
You agree to release, indemnify, and hold us and our Affiliates harmless from and against any demands, loss, liability, claims or expenses (including attorney's fee) made against us by any third party due to or arising out of 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. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.13. 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 JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in San Francisco, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS 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 will 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.14. Notices
We may send you notice with respect to the Sites by sending an email message to the email address listed in your account or by posting on the Site. Any notices will be deemed delivered to the party receiving such communication: (i) the date of transmittal if sent via email; or (ii) the date we post the notice to the Site.15. Governing Law, International Use
This Terms of Service will be governed by and construed in accordance with the internal laws of the State of California, without regard to its conflicts of law provisions. Unless otherwise elected by Kiwi in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco, California for the purpose of resolving any dispute relating to your access to or use of the Service not subject to arbitration, as set forth above. 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 this Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. Although the Services may be accessible worldwide, we make no representation that materials on the Services are appropriate or available for use in locations outside the United States. Accessing the Services from territories where its use is illegal is prohibited.16. Entire Agreement
The Terms of Service represent the entire agreement between you and us with respect to the subject matter addressed herein and supersedes all prior to contemporaneous agreements or understandings, written or oral. The Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective successors and lawful assigns.17. Waiver
Any failure by us to enforce or exercise any provisions of the Terms of Service shall not constitute a waiver of that right or provision. Our failure to act with respect to a breach by you or others does not waive our rights to act with respect to subsequent or similar breaches.18. Last Revision Date
This policy was last revised on February 6, 2015.