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THESE TERMS OF SERVICE INCLUDE, AMONG OTHER THINGS, A BINDING ARBITRATION PROVISION THAT CONTAINS A CLASS ACTION WAIVER. PLEASE REFER TO SECTION 17 BELOW FOR MORE INFORMATION.
inKind Cards, Inc. (the "Company," "we," "us," "inKind" and "our") offers a rewards program in the United States to help consumers save money. These Terms of Service ("Terms") govern your access to and use of (1) our website located at www.inkind.com
and all of our other websites to which these Terms are posted (collectively, the "Website"); (2) our mobile applications to which these Terms are posted (collectively, the "Application"); and (3) any services, content, and features made available by us through the Website or the Application (together with the Website and the Application, the "Services"). In these Terms, "you" and "your" and "Users" refer to any user of the Services. 1. YOUR ACCEPTANCE OF THESE TERMS
, which is incorporated by this reference into these Terms. If you do not agree to all the terms and conditions of these Terms, do not access or use the Services. If your access to or use of the Services is prohibited by applicable law, you are not authorized to access or use the Services. We are not responsible if you access or use the Services in any manner that violates applicable law. 2. AMENDMENTS TO TERMS; ADDITIONAL TERM
In connection with your access to or use of the Services, you may be subject to additional terms, rules, policies, and conditions imposed by us ("Additional Terms"), which are hereby incorporated by reference into these Terms. To the extent of any inconsistency between these Terms and any Additional Terms, these Terms will control, unless otherwise expressly provided by us. 3. THE SERVICES
The purpose of the Services is to provide you with food and beverage credit to your favorite venues, which you can either earn through spending at the venue or purchase in advance. (A) House Account Credit
House Account Credit is electronic credit certificates for specified dollar amounts that may be used to purchase items or services sold by a particular merchant (the "Merchant"), and shall be treated the same by the Merchant as any physical gift cards or other electronic gift cards that the Merchant may from time to time sell. The Merchant is the sole issuer of the House Account Credit.
- House Account Credit is not redeemable for cash.
- Use of House Account Credit for alcoholic beverages is at the sole discretion of the Merchant in accordance with applicable law.
- House Account Credit cannot be combined with any other coupons or promotions, unless expressly permitted by the Merchant.
- House Account Credit cannot be used for taxes, tips, prior balances and/or shipping or handling, as applicable.
- Duplicate use of House Account Credit is prohibited.
The Merchant is the issuer of House Account Credit and is solely responsible for redeeming the House Account Credit for items or services sold by the Merchant. The Merchant is also solely responsible for all goods and services it provides to you and for any and all injuries, illnesses, damages, claims, liabilities and costs it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of House Account Credit or not, as well as for any unclaimed property liability arising from unredeemed or partially redeemed House Account Credit.
Unauthorized or unlawful reproduction, resale, modification or trade of House Account Credit is prohibited. Pricing relating to certain House Accounts on inkind.com may change at any time in inKind's discretion, without notice. (B) Certain Requirements
governs our collection, use, storage, and disclosure of User Information.
You are solely responsible for ensuring the confidentiality of your Account login information and maintaining the security of such information. You agree not to authorize any other person to use your Account for any purpose. Except as otherwise provided by applicable law, you are solely responsible for all transactions and other activities authorized or performed using your Account, whether authorized by you or not. If you believe any of your Account credentials, such as your password, have been obtained or used by any unauthorized person or you become aware of any other breach or attempted breach of the security of the Services or your Account, you must notify us immediately. (C) Programs
There are two ways in which you can obtain House Account Credit: (i) Earning Through Spending, in which you give us access to your spending data and we provide you with House Account Credit based on how much you spend at a particular venue, and (ii) Purchasing House Accounts, in which you buy House Account Credit in advance of visiting a particular venue and receive a bonus amount of House Account Credit to reward you for purchasing in advance. (i) Earning Through Spending
(a) Linking Your Payment Card
In order to receive House Account Credit from us for qualifying purchases of goods or services, or for referring other users to download the inKind application, you must link at least one eligible debit or credit card (a "Payment Card") to your Account. Please note that not all debit and credit cards are eligible to be linked to your Account. All determinations as to whether a card is eligible to be a Payment Card are at our sole discretion. For example, certain Visa, Mastercard, and American Express cards are not eligible to be linked to your Account, including, but not limited to, the following: prepaid cards, corporate cards, purchasing cards, store cards which can only be used at their respective retailers' stores, government-administered prepaid cards, healthcare cards, Visa Buxx, and cards that are not processed through the Visa U.S.A payment system, the Mastercard payment system, or the American Express payment system. In order to be eligible as a Payment Card, it must be issued by a U.S. bank. In addition, you may not be able to link a debit or credit card to your Account if the card is already linked to certain other third-party card-linked offer programs.
(b) Use of Enrolled Cards and Transaction Information
By registering a Payment Card in connection with transaction monitoring, you authorize us to share your payment information with the third-parties that enable us to provide the Services ("Third-Party Service Providers") and your Payment Card Network (e.g., Visa, Mastercard, American Express) so it knows you enrolled. You authorize the Payment Card Network to monitor transactions on your linked Payment Card(s) to identify qualifying purchases in order to determine whether you have qualified for or earned an offer linked to your Payment Card, and for the Payment Card Network to share such transaction details with us to enable your card-linked offer(s) and target offers that may be of interest to you. You agree that the Company and Third-Party Service Providers may view your transactions made by you with participating merchants. You authorize participating merchants to provide the Company with historical transaction data.
. You may opt-out of transaction monitoring on the Payment Card(s) you have registered by de-linking then through the Services or by terminating your Account. To terminate your Account and this Agreement and your right to use the Services at any time and for any reason and for no reason, contact Customer Support and immediately discontinue all use of the Services. Please note that if you opt-out of transaction monitoring, certain features of the Services may not be available to you or the performance of certain features of the Services may be limited or not work at all.
(c) Receiving House Account Credit
Subject to these Terms, we will automatically provide House Account Credit to you when you purchase qualifying goods or services with your Payment Card or perform other qualifying actions identified by us. The Company, in its sole discretion, establishes the terms and conditions for each qualifying purchase or action and determines whether you have satisfied such terms and conditions to receive House Account Credit. Such terms and conditions are set forth on the Website and the Application and may be updated, modified, suspended, or cancelled by the Company at any time in its sole discretion. All offers made available to you through the inKind application are temporary and may become unavailable without notice. You may also have a limited, prescribed window of time to take advantage of an offer. Always check the inKind application for offers currently available to you.
Not all qualifying purchases made with your Payment Card may be eligible for House Account Credit if we are unable to obtain certain transaction information from the Payment Card Network associated with your Payment Card. For example, we may be unable to obtain certain transaction information from the Payment Card Network (and you may therefore be unable to receive House Account Credit) for the following transactions made with your Payment Card: (i) purchases that require you to enter your Personal Identification Number ("PIN") for your Payment Card, (ii) purchases you initiate through identification technology that substitutes for a PIN, (iii) payments made through other payment methods (such as a digital wallet or a third-party payment application, where you may choose your Payment Card as a funding source but you do not present your Payment Card directly to the merchant), (iv) payments of existing balances, balance transfers, or (v) transactions that are not processed or submitted through the Payment Card Network. Do not use a PIN when paying for a qualifying purchase with your Payment Card if you want the purchase to be eligible for House Account Credit.
Without limiting any of the other terms of these Terms, if you return, charge back, cancel, dispute, or otherwise request a refund for a qualifying purchase for which you have already received House Account Credit, we will reduce the balance of House Account Credit in your Account by the amount of House Account Credit you received for such transaction. If the balance of House Account Credit in your Account is less than the amount of House Account Credit you received for such transaction, we will offset the applicable amount of House Account Credit fromHouse Account Credit you would otherwise receive for future qualifying actions.
House Account Credit that you receive as a result of a qualifying purchase at a local merchant will generally be reflected in your Account within 1-7 Business Days after the date of purchase. For purposes of these Terms, "Business Day" means Monday through Friday, excluding federal banking holidays. If you do not automatically receive House Account Credit for purchasing qualifying goods or services with your Payment Card or for performing other qualifying actions as identified by us, you have thirty (30) days from the date of transaction to provide evidence of the purchase and request House Account Credit earned. Any requests for House Account Credit earned after these deadlines will not be honored and the House Account Credit associated with the transaction will be forfeited.
Without limiting any of the other conditions of these Terms, if we award House Account Credit to you in error (e.g., we later determine that you did not comply with the terms and conditions of a qualifying purchase or if you charge back a qualifying purchase), we reserve the right to remove the applicable House Account Credit from your Account. You are responsible for making sure the House Account Credit balance reflected in your Account is correct. If you believe that your Account does not accurately reflect House Account Credit that you are eligible to receive, please contact us
Certain limits may apply to your redemption of House Account Credit, which shall be determined by each restaurant. You may only access and use the Services for your own personal, non-commercial use and not on behalf of or for the benefit of any third party. You further acknowledge and agree that no consideration or other value is or has been given in exchange for House Account Credit through the Earning Through Spending program. (ii) Purchasing House Accounts
(a) Make up of House Accounts
House Accounts are a set amount of House Account Credit that are stored, managed and redeemed through the Application. House Accounts combine two separate portions: (i) a paid portion equal to the amount you paid for the House Account (the "Paid Portion"); and (ii) at no additional charge to you, a time-sensitive promotional portion for the balance of the value of the House Account if used by the promotional expiration date detailed upon purchase (the "Promotional Portion"). The Paid Portion will never expire. The Paid Portion is redeemed first, followed by the Promotional Portion.
inKind may, in its sole discretion, verify a user's identity prior to processing a purchase. inKind may also refuse to process a purchase, may cancel a purchase, as reasonably deemed necessary, to comply with applicable law or to respond to a case of misrepresentation, fraud or known or potential violations of the law or these Terms of Sale. Refunds for cancelled orders may be issued where appropriate.
inKind does not guarantee that it offers best available rates or prices and does not guarantee against pricing errors. inKind reserves the right, in its sole discretion, to not process or to cancel any orders placed, including, without limitation, if the price was incorrectly posted on the Website. If this occurs, inKind will attempt to notify you by email. In addition, inKind reserves the right, in its sole discretion, to correct any error in the stated retail price of the House Accounts. Unless otherwise stated therein, the House Account price does not include sales, value-added or use taxes, which may be charged to you separately by the Merchant at the time you redeem part of the House Account.
inKind has a process for evaluating merchants but does not fully investigate or vet merchants. inKind is not responsible for any claims associated with any issues with House Account credit redemptions. You should make whatever investigation you deem necessary or appropriate before purchasing any House Account to determine whether merchant is qualified to provide the advertised good. Merchant is solely responsible for the care and quality of the goods and services being provided.
In the event a Merchant ceases operations, you agree that your only course of action is to seek a refund from the Merchant, not from inKind and shall be limited to claiming the unused Paid Portion of your House Account. (C) Taxes
All amounts paid to you hereunder are exclusive of any applicable withholding, sales, use, excise, value added, or other taxes. You acknowledge and agree that you are responsible for determining, paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services. We are not responsible for determining whether you owe taxes in connection with your access to or use of the Services or for collecting, reporting, or remitting taxes arising from your access to or use of the Services, except for our own income taxes. You agree to promptly and fully reimburse and indemnify us for any taxes, penalties, and interest assessed by any taxing authority regarding amounts owed by you in connection with these Terms.
Depending on applicable tax laws, your receipt of rewards may be subject to reporting to certain tax authorities. 4. INTELLECTUAL PROPERTY RIGHTS
All software, design, text, information, data, databases, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, or other copyrightable elements (collectively, "Content"), other than User Content (as defined below), are the property of inKind and/or its subsidiaries, affiliates, assigns, licensors, vendors, partners or other respective owners and are protected, without limitation, pursuant to U.S. and foreign copyright laws. No Content (other than your own User Content) may be reproduced, modified, used to create derivative works, displayed, performed, published, distributed, disseminated, broadcast or circulated to any third party without our express prior written consent. 5. USE LICENSE
You are hereby granted a limited, revocable, personal, non-exclusive, and non-transferable right and license to access and use the Services solely for your personal, non-commercial, entertainment purposes. Under this license, you may not:
- modify or copy the Content except as expressly permitted hereby;
- use the Content for any commercial purpose or any public display;
- attempt to decompile or reverse engineer any software contained in the Services;
- remove any copyright or other proprietary notations from the Content; or
- transfer the Content to another person or "mirror" the Content on any other server.
This license shall automatically terminate if you violate any of the above restrictions. We may terminate this license for any reason at our sole discretion. 6. TRADEMARKS
"inKind" and its logo (collectively, "inKind Trademarks") constitute our trademarks or service marks. Other company, product, and service names and logos used and displayed on inkind.com may be trademarks or service marks owned by us or others. You may not use, copy, display, distribute, modify or reproduce any of the trademarks or service marks found on inkind.com unless in accordance with written authorization by us. The use of any of the inKind Trademarks as part of a link to or from any site is prohibited unless we provide advance written approval. Any questions concerning any inKind Trademarks, or whether any mark or logo is an inKind Trademark, should be referred to us. 7. USER CONTENT
. You may not share User Content that is offensive; objectionable; promotes racism, discrimination, bigotry, hatred, or physical harm of any kind; harasses or advocates harassment of another person; exploits people in any manner; or contains nudity, violence, or pornographic subject matter.
You hereby grant us a royalty-free, worldwide, perpetual, non-exclusive, unrestricted, irrevocable, transferable, and sub-licensable right and license to modify, copy, reproduce, distribute, sell, publicly display, transmit, delete, make derivative works from, store, and otherwise exploit User Content and to allow others to do the same for any purpose, including, but not limited to, commercial purposes. You acknowledge and agree that you will not receive any compensation whatsoever for granting us this license to your User Content, and you hereby completely and irrevocably waive any moral or similar rights you may have in your User Content, even if such User Content is altered or changed in a manner that is not agreeable to you. This includes, but is not limited to, any claims based on invasion of privacy, idea misappropriation, other civil rights violations, or defamation. The license granted under this section, including the related waiver of any applicable moral rights, will survive any termination of these Terms.
You acknowledge and agree that your communications with other users via any channel of communication via the Services may be public and that you have no expectation of privacy concerning your access to and use of the Services. You are solely responsible for your communications through the Services and your interactions with other users of the Services. 8. THIRD PARTY CONTENT, SERVICES AND LINKS
The information presented through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of the Services. The Services may include content provided by third parties, including content provided by other users of the Services. All statements and/or opinions expressed in such content (other than the content provided by the Company) are solely the opinions and the responsibility of the provider of the content and do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content provided by any third party.
Standard messaging rates apply to your entry or submission message to any inKind text message service, our confirmation and all subsequent text message correspondence. Please contact your wireless carrier for information about your messaging and data plan(s). Your carrier may impose message or charge limitations on your account that are outside our control. All associated charges are billed by and payable to your mobile service provider.
Data obtained from you in connection with our text message service may include your cell phone number, your carrier's name, and the date, time and content of your messages to us and other information that you may provide. We may use this information to contact you and to provide the services you request from us, and to otherwise operate, develop and improve the service. We and third-party partners collect information using cookies, pixel tags, plugins, or similar technologies. For example, we may use pixel tags to recognize and alert you, if you leave items in your shopping cart. Our third-party partners, such as analytics and advertising partners, may use these technologies to collect information about your online activities over time and across different services. Your wireless carrier and other service providers may also collect data about your text usage, and their practices are governed by their own policies. We will only use information you provide to the service to transmit your text message. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request, to avoid liability, or to protect our rights or property.10. COPYRIGHT COMPLAINTS(A) Copyright infringement
If you are the owner or controller of any copyright that you believe is being infringed by material on inkind.com, you may send a written notification under the Digital Millennium Copyright Act (via mail or email) of such infringement to inKind's Designated Agent to the following address:
inKind, 600 Congress Ave., Ste 1700, Austin TX 78704
Or email: firstname.lastname@example.org
The notice must meet the notice requirements under the Digital Millennium Copyright Act ("DMCA"). In accordance with the DMCA and other applicable law, inKind has a policy of terminating, at its sole discretion, the registrations of Users who are deemed to be repeat infringers. We may also, at our sole discretion, limit the access to inkind.com afforded to any Users who infringe intellectual property rights of others. (B) Counter-notifications
If you believe that material you posted on the Website or the Application was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a "Counter-Notice") by submitting written notification to our copyright agent (identified below). The notice must meet the notice requirements under the DMCA.
Completed Counter-Notices should be sent to:
inKind, 1300 N St NW, Apt 405, Washington, DC 20005
Or email: email@example.com
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within 10 Business Days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website or the Application was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the Accounts of users who are repeat copyright infringers. 11. TERMINATION
You may stop using the Services and terminate your Account at any time by contacting us
. Upon the termination of your Account, you must cease all use of the Services, and you shall forfeit any House Account Credit balance remaining in your Account. Termination of your Account and your access to and use of the Services will not affect any of our rights or your obligations arising under these Terms prior to such termination. In the event you or inKind terminates your Account, you agree that we may retain your data, including personal and transaction information, for one year from the date of termination for audit and merchant invoicing purposes. Provisions of these Terms that, by their nature, should survive termination of your Account and your access to and use of the Services will survive such termination. 12. DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE THROUGH THE SERVICES ARE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE AND THE PAYMENT CARD NETWORKS EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, WE AND THE PAYMENT CARD NETWORKS MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; OR (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY OF OUR AUTHORIZED REPRESENTATIVES WILL CREATE ANY WARRANTY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. HOWEVER, ANY LIMITATION WILL BE CONSTRUED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. 13. LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, THE PAYMENT CARD NETWORKS, AND THEIR AND OUR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE SERVICES OR ANY INFORMATION, PRODUCTS, OR OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN THE EVENT YOU OR ANY OTHER PERSON OR ENTITY IS ENTITLED TO DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS, USE, OR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY INFORMATION, PRODUCTS, OR OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE THROUGH THE SERVICES, THE COLLECTIVE LIABILITY OF THE COMPANY, OUR AFFILIATES, THE PAYMENT CARD NETWORKS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS, (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL NOT EXCEED $100.
IN ADDITION TO AND WITHOUT LIMITING ANY OF THE FOREGOING, WE AND THE PAYMENT CARD NETWORKS WILL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF TERRORISM, LABOR CONDITIONS, POWER FAILURES, INTERNET DISTURBANCES, OR ANY SERVICES OR SYSTEMS CONTROLLED BY THIRD PARTIES.
THE LIMITATIONS IN THIS SECTION DO NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. 14. INDEMNIFICATION
You agree to indemnify, hold harmless, and (at our request) defend us, our affiliates, and our and their respective employees, officers, directors, and agents, as well as the Payment Card Networks, from and against all claims, demands, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses, including reasonable attorneys' fees, that arise from any third-party claim due to or arising out of: (a) User Content you share through the Services; (b) your use of the Services; (c) your breach or alleged breach of these Terms; (d) your violation of applicable law, including, but not limited to, infringement of third-party intellectual property rights; or (e) your other actions or omissions that result in liability to us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under these Terms, and you agree to cooperate with our defense of these claims. 15. NOTICES
We will send all notices and other communications regarding the Services to you at the email address provided for your Account, as may be updated by you from time to time. You will be considered to have received a notice from us regarding the Services when we send it to the email address or physical address we have in our records for you or when we post such notice on the Website or the Application.
Except as otherwise provided in these Terms, all notices to us that are intended to have a legal effect must be delivered via email to firstname.lastname@example.org. All such notices are deemed effective upon documented receipt by us. 16. CONSENT TO ELECTRONIC DISCLOSURES
inKind can only give you the benefits of our service by conducting most of our business through the Internet. By agreeing to these Terms you hereby consent to do business and receive all disclosures, notices, documents and information, ("Communications") from us in relation to all of your interactions and transactions electronically by e-mail or via the Application. 17. GOVERNING LAW; VENUE
These Terms and all matters or issues collateral thereto will be governed by, construed and enforced in accordance with the laws of the State of Delaware without regard to conflict-of-laws principles.
For any and all controversies, disputes, demands, claims, or causes of action between you and us (including the interpretation and scope of this section and the controversy, dispute, demand, claim, or cause of action) relating to the Services or these Terms (as well as any related or prior agreement that you may have had with us), you and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. In the event of any such controversy, dispute, demand, claim, or cause of action, the complaining party must notify the other party in writing thereof. Within 30 days of such notice, you and we agree to use reasonable efforts to attempt to resolve the dispute in good faith. If you and we do not resolve the dispute within 30 days after such notice, the complaining party may seek remedies exclusively through arbitration. Except as otherwise expressly provided by applicable law, the demand for arbitration must be made within a reasonable time after the controversy, dispute, demand, claim, or cause of action in question arose, and in any event within two years after the complaining party knew or should have known of the controversy, dispute, demand, claim, or cause of action.
The arbitration will take place in the federal judicial district of your residence. As used in this Section, "we" and "us" mean the Company and its subsidiaries, affiliates, predecessors, successors, and assigns and all of our and their respective employees, officers, directors, agents, and representatives. In addition, "we" and "us" include any third party providing any product, service, or benefit in connection with the Services or these Terms (as well as any related or prior agreement that you may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this section.
Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association ("AAA") with substantial experience in resolving commercial contract disputes. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA's Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the "Rules and Procedures"). You should review this Section carefully. To the maximum extent permitted by applicable law, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in the state or municipality of your residence or as otherwise provided in the Rules and Procedures within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding the agreement to arbitrate included in this Section, you and we may seek emergency equitable relief in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence in order to maintain the status quo pending arbitration, and you and we hereby agree to submit to the exclusive personal jurisdiction of the courts located within the federal judicial district of your residence for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate.
Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators' decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and we must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS; MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING; AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) we will pay as much of your filing and hearing fees in connection with the arbitration as required by the Rules and Procedures and/or as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (d) we also reserve the right, in our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of these Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) each party will pay its own attorneys' fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys' fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law.
This section will survive termination of these Terms as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (A) and (B) of this section (prohibiting arbitration on a class or collective basis), if any part of this section is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this section will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting part was not contained herein. If, however, either subpart (A) or (B) of this section is found to be invalid, unenforceable, or illegal, then the entirety of this section will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a controversy, dispute, demand, claim, or cause of action proceeds in court rather than in arbitration, the controversy, dispute, demand, claim, or cause of action will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence.
If you wish to opt out of the agreement to arbitrate included in this section, you must notify us of your election in writing within 30 days of the date that you first became subject to these Terms, or within 30 days of the effective date of any material change to these Terms, by sending a written notice to us by certified mail at the following address: 1300 N St NW Washington DC 20006; Attn: Arbitration Opt-Out. Your opt-out notice must include your name, address, phone number, and email address.
For more information on the AAA, the Rules and Procedures, and the process for filing an arbitration claim, you may call the AAA at 800-778-7879 or visit the AAA website at http://www.adr.org
. 18. GENERAL PROVISIONS
and any Additional Terms, constitute the entire agreement between you and us regarding the Services and supersede and replace any prior agreements and communications between you and us, except as expressly set forth herein. These Terms may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not expressly made a part of these Terms. These Terms and any rights hereunder may not be transferred or assigned by you without our prior written consent but may be assigned by us without restriction and without your prior consent. Any attempted transfer or assignment by you without our prior written consent will be null and void. No agency, joint venture, partnership, trust, or employment relationship is created between you and us by way of these Terms. Except as provided in Section 16, the invalidity or unenforceability of any provision of these Terms will not affect the validity of these Terms as a whole and any such provision should be enforced by authorities, and reconstructed if need be, to apply to the maximum extent allowable under applicable law. The failure by us to enforce at any time any of the provisions of these Terms, to exercise any election or option provided herein, to require at any time your performance of any of the provisions herein, or to enforce our rights under these Terms or applicable law will not in any way be construed as a waiver of such provisions or rights. The section headings used herein are for convenience only and will not be given any legal import.