KALI is a website located at KALIBoxes.com and is owned and operated by Kali, LLC. These Website Terms and Conditions are revised as of January 11, 2016.
Welcome to KALIBoxes.com (the “Site”). Kali LLC provides access to the Site to you subject to the following terms and conditions. In return for accessing the Site, you agree to be bound by these terms and conditions of use without limitation or qualification. This is a legally binding agreement between you as the member(s) of the Site (sometimes referred to as “KALI”, “we”, “us” or “our”). If you do not intend to be legally bound by these terms and conditions of use, do not access or use the Site. Essentially, if you visit the Site, you accept all terms and conditions of use. Please read them carefully.
For example, as more fully set forth herein these terms contain an ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise. If you do not agree to these terms of service in their entirety, you may not use the Site and should not proceed to register.
We may modify these terms and conditions from time to time. If you do not agree to any modifications, you should terminate your use of the Service. Your continued use of the Service will constitute a binding acceptance by you of these terms and conditions, or any subsequent modifications.
You represent and warrant that you are at least 13 years of age, provided that if you are under 18 years of age, your use of the Services is subject to requirements of parental consent, in which case your supervising parent or legal guardian is considered the user under these Terms of Service and is responsible for any and all activity. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party (unless you are a parent or legal guardian using the Services for your minor child). Any use of the Site or Service is void where prohibited.
To sign up for the Services, you must register for an account on the Services (an “Account") with your email address or log in through your Facebook account. By using the Services through your Facebook ID, you permit us to access certain information from such account for use by the Services. You may control the amount of information that is accessible to us by adjusting your Facebook account settings. You must provide accurate and complete information and keep your Account information updated. You shall not use any other person's email address to register for an Account. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person's user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account by following the instructions on the Site or through the Services.
You further represent and warrant that you will not disclose to any other person your unique user name and password and that you will not provide access to the Service to anyone who is under the age of 13, or otherwise does not wish to access the Service. You are solely responsible for maintaining the confidentiality of your user name and password and you are fully and solely responsible for all activities that occur under your user name and password.
For purposes of these Terms of Service, the term “Content" includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content" also includes all User Content (as defined below).
B. User Content.
All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. Any testimonials you may provide us at our request shall be User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
C. Notices and Restrictions.
The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
D. Use License.
Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sub licensable and non-transferable license to use (i.e., to download and display locally) Content solely for personal, non-commercial use of the Services. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use of the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
E. License Grant.
By submitting User Content through the Services or otherwise to us, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sub-licensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Site, the Services and our (and our successors' and assigns') businesses, including without limitation for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each user of the Site and/or the Services a non-exclusive, perpetual license to access your User Content that is publicly available to such user through the Site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. For clarity, (i) any information you submit to the Services that you do not publicly post through the Services will not be shared with other users (for example, your Subscription information will not be shared with other users), and (ii) the foregoing license grants to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
F. Availability of Content.
We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
Except for User Content, you acknowledge that KALI and its licensors own the Services and all intellectual property rights and moral rights therein, including without limitation all copyrights, trademarks and trade dress. Except for the limited access expressly provided in these Terms of Service, neither these Terms of Service nor your access to the Services transfers to you any right, title or interest in or to such intellectual property rights. No rights or licenses are granted except as expressly and unambiguously set forth in these Terms of Service. Except as expressly provided by us, none of the Services may be copied, displayed or transmitted in any way.
You may provide suggestions and comments or other feedback to KALI with respect to the Services (“Feedback"). You represent and warrant that you have all rights to submit the Feedback. You are responsible for the legality, accuracy, originality and content of your Feedback. Submission of Feedback is at your own risk. You shall, and hereby do, assign to KALI all right, title and interest (including all related intellectual property and other proprietary rights) in and to the Feedback. KALI will be free to use or disseminate your Feedback.
I. Monitoring and Removal of Content.
We reserve the right, but have no obligation, to monitor any and all public and private postings, messages, or other content on the Service. We also reserve the right, but have no obligation, to monitor any and all messages placed on the Service. Notwithstanding our right to monitor content, we are not responsible for any offensive or obscene material(s) that may be transmitted or posted by any and all members (including unauthorized members, as well as the possibility of “hackers”). Due to the volume of content on the Service, we do not and cannot review every material posted or sent through the Service. We are not responsible for any content of these messages or materials. We reserve the right, but are not obligated, to delete, move, or edit messages or materials, including without limitation advertisements, public or private postings and messages, that we, in our sole discretion, may deem to violate the these terms and conditions or to be otherwise unacceptable to us in our sole discretion. Notwithstanding our right to delete, move or edit messages or materials, you shall remain solely responsible for the content of advertisements, public postings, messages and other materials you may upload to the Service or otherwise provide to members of the Service.
J. No Warranty With Respect to Member Content.
You are solely responsible for your interactions with other members. We cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by any other member of the Service, including but not limited to, information regarding a member’s age and marital status. Additionally, as members may discontinue or suspend their membership at any time, we cannot guarantee that individuals seen in various advertisements are currently active members. You hereby acknowledge and agree that we have no responsibilities or liabilities for any inaccuracies, intentional or unintentional, made by members or as a result of out of date information.
K. Health Care Disclaimer.
ALL ASPECTS OF THE SERVICES, INCLUDING WITHOUT LIMITATION ALL CONTENT, ARE FOR INFORMATIONAL PURPOSES ONLY. NO INFORMATION PROVIDED THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT TAKEN TO BE, FACTUAL OR ACCURATE KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. NO ASPECT OF THE SERVICES SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, PROFESSIONAL MEDICAL KNOWLEDGE, ADVICE, DIAGNOSIS, OR TREATMENT. THE SERVICES DO NOT CONSTITUTE THE PRACTICE OF ANY MEDICAL, NURSING OR OTHER PROFESSIONAL HEALTH PROVIDER, KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. YOU CANNOT USE THE SERVICES AS A DIAGNOSIS, TREATMENT OR PRESCRIPTION. RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK. NO PATIENT/DOCTOR RELATIONSHIP OF ANY KIND IS ESTABLISHED THROUGH USE OF THE SERVICES. THE SERVICES ARE NOT A SUBSTITUTE FOR EMERGENCY MEDICAL HELP AND CANNOT BE USED IN THE EVENT OF A MEDICAL EMERGENCY. You should always seek the advice of your physician or other qualified health provider, with any questions you may have regarding personal health or a medical condition, including diagnosis and treatment for your specific medical needs. You should never disregard or delay in seeking professional medical advice due to information you have obtained from the Services.
4. Rules of Conduct
A. As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services, including, but not limited to, any text, audio or video recordings, photographs, graphic depictions, or any other type of material, data or information.
B. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
i. infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy in Section 14 below);
ii. you know is false, misleading, untruthful or inaccurate;
iii. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, racist, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
iv. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail, “trolling,” “phishing,” or unsolicited mass mailing (“spamming");
v. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
vi. impersonates any person or entity, including any of our employees or representatives; or
vii. includes anyone's identification documents or sensitive financial information.
viii. that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
ix. "stalk" or otherwise harass any person; advocates harassment or intimidation of another person;
x. requests money from, or is intended to otherwise defraud, other members of the Site or Service;
xi. contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
xii. provides material that exploits people in a sexual, violent or other illegal manner, or solicits personal information from anyone under the age of 18;
xiii. impersonates, or otherwise misrepresents affiliation, connection or association with, any person or entity;
xiv. provides information or data you do not have a right to make available under law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information);
xv. disrupts the normal flow of dialogue, causes a screen to "scroll" faster than other members are able to type, or otherwise negatively affects other members’ ability to engage in real time exchanges;
xvi. solicits passwords or personal identifying information for commercial or unlawful purposes from other members or disseminates another person’s personal information without his or her permission; and
xvii. publicizes or promotes commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
C. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam" on the Services; (v) use manual or automated software, devices, or other processes to “crawl" or “spider" any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
D. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
E. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or(v) protect the rights, property or safety of us, our users and the public.
5. Third Party Service.
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we 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 the use of or reliance on any such content, goods or services available on or through any such website or resource.
6. KALI Subscriptions and Purchases
A. Subscriptions; Automatic Renewal; Changes.
Please see our Site for a current description of the subscriptions we offer through the Services (“Subscriptions"), how to place an order for a Subscription and our policies with respect to changing or cancelling a Subscription. Before submitting your order for a Subscription, you must select your product choice. Note that Subscriptions are automatically renewed monthly and will continue for renewal at the then-current price (or for the term and price as subsequently modified by you), unless you have cancelled such Subscription. You acknowledge that Subscriptions have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. For a given Subscription, you can change your preferences in your Account, where you can adjust, skip or cancel such Subscription. Any changes must be made before the 20th of the previous month.
B. One-Time Purchases.
Please see our Site for a current description of the products you can purchase through the Services (“Purchases"). If you choose to make a Purchase, such Purchase will be shipped to you with the next shipment of your Subscription.
C. Order Processing.
All orders are subject to acceptance by us. We may choose not to accept your order for any reason without liability to you, and KALI reserves the right to refuse or cancel any order or transaction at any time, in its sole discretion. For example, we may choose to not process or to cancel your order when a product is out of stock or has been mispriced or if we suspect the request is fraudulent. If we decide not to process your order or if we cancel all or a portion of your order, KALI will either not charge you for the applicable item(s) or provide you with a refund for the applicable item(s).
D. Risk of Loss.
The risk of loss and title for all products you order passes to you upon our delivery to the carrier (such as FedEx, UPS, or USPS).
E. Returns and Exchanges.
Unfortunately, due to the nature of our product, we cannot accept returns or exchanges. We understand relationships don't always work out and we hope you'll come back to try our new products.
In order to submit an order through the Services, you must use a valid credit card or other payment method accepted by the Services (which may change from time to time in KALI's sole discretion) (your “Payment Method"), with full authority to use it. KALI reserves the right, in its sole discretion, to take steps to verify your identity and/or eligibility to process your order. Please note that any payment terms presented to you in the process of placing an order through the Services are deemed part of this Agreement. We use a third-party payment processor (the “Payment Processor") to allow you to pay for orders through the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. By choosing to purchase products through the Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for your purchase in accordance with your Payment Method and you authorize us, through the Payment Processor, to charge your Payment Method. Such charges for your purchase may include shipping fees and state and local sales tax, the amount of which varies due to factors including the type of item purchased and the shipping destination. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment. FOR SUBSCRIPTIONS, WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO YOUR ACCOUNT.
G. Payment Method.
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your applicable order upon demand.
H. Current Information Required.
YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR PAYMENT METHOD. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR PAYMENT METHOD CURRENT,COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE THROUGH YOUR ACCOUNT. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR YOUR SUBSCRIPTION UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION THROUGH THE SERVICES.
I. Change in Amount Authorized.
If the amount to be charged to your Payment Method varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
J. Reaffirmation of Authorization.
Your non-termination of a Subscription reaffirms that we are authorized to charge your Payment Method for that Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to order the Subscription.
From time to time, KALI may choose to issue you a certain number of credits (“Credits") to your Account (the “Program"). In addition to any specific rules and descriptions for each issuance of Credits, which are incorporated herein, the following terms apply:
i. Credits, the number of Credits, and the redemption value of Credits and any restrictions on the use of Credits, are issued at KALI's sole discretion. Any Credits issued shall be automatically redeemed at checkout on your next shipment(s) through the Services, until the Credits are fully redeemed. You acknowledge that even if Credits are redeemed on a shipment, you may still need to pay for expedited shipping if you choose expedited shipping for such shipment and you do not have enough Credits to cover the full cost. Any remaining balance on the purchase amount for a given shipment after Credits are fully redeemed is your sole responsibility. You cannot choose when or when not to redeem any Credits in your Account.
ii. Credits automatically expire and are forfeited at the date that is three (3) years after the date such Credits are issued. Credits are valid for redemption on the Services only and are void where prohibited or restricted by law. Credits are promotional coupons and are not legal tender. Credits are non-transferable, non-exchangeable, have no value and cannot be used for cash back or sold. KALI reserves the right, in its sole discretion at any time, to void any Credits, or to cancel, suspend, terminate or modify any aspect of the Program, with or without notice to you. KALI also reserves the right, in its sole discretion, to terminate your participation in the Program at any time, with or without cause, with or without notice, effective immediately, including without limitation if KALI deems or suspects any violation of these terms and conditions, cheating, fraud or tampering with the operation of Program.
iii. By participating in the Program, you agree to release and hold harmless KALI, its affiliates, suppliers, partners, and each of KALI 's and their respective parent companies, subsidiaries, affiliates, partners, employees, contractors, directors, officers, agents, suppliers and representatives, from any and all liabilities, claims, damages, injury, loss, harm, cost or expenses, including without limitation property damage, personal injury and/or death, that arise from or relate to in any way the Program and/or use or misuse of Credits.
These terms and conditions will remain in full force and effect while you use the Service and will also survive the termination of your Membership or use of the Service. We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are non-refundable.
We also reserve the right to terminate or suspend your subscription and/or membership in the Service at any time without notice for any reason, including but not limited to, if we believe that you have breached any term or condition. Without limiting the generality of the foregoing, any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your access to all or part of the Service at our sole discretion, and we reserve the right to refer such activity to any and all appropriate law enforcement agencies. Upon such termination or suspension, you will not be entitled to any refund of unused subscription fees and, if applicable, all unpaid subscription amounts and other fees you owe will immediately be due. We are not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
8. Warranty Disclaimer
A. We have no special relationship with or fiduciary duty to you. You acknowledge that we have no control over, and no duty to take any action regarding:
i. which users gain access to the Services;
ii. what Content you access via the Services; or
iii. how you may interpret or use the Content.
B. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
C. THE SERVICES AND CONTENT ARE PROVIDED “AS IS", “AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY US TO THE MAXIMUM EXTENT PERMITTED BY LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
D. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND IN ADDITION TO ALL OTHER LIMITATIONS AND DISCLAIMERS IN THESE TERMS OF SERVICE, WE DISCLAIM ANY LIABILITY OR LOSS IN CONNECTION WITH THE PRODUCTS SOLD ON OR THROUGH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KALI BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES, TO PROPERTY OR LIFE, ARISING OUT OF OR CONNECTED WITH THE USE OR MISUSE OF OUR PRODUCTS, AND YOU AGREE TO HOLD US HARMLESS FROM THE SAME. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF OUR PRODUCTS IS SOLELY AT YOUR OWN RISK.
E. You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: “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."
F. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, or the exclusion of implied warranties, the above exclusions limitations may not apply to you. If any applicable authority holds any portion of this section to be unenforceable, then liability will be limited to the fullest extent of applicable law. You may have other rights, which vary from jurisdiction to jurisdiction.
You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your User Content, violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
10. Limitation of Liability
A. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (A) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (B) $500.00.
B. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. If any applicable authority holds any portion of this section to be unenforceable, then liability will be limited to the fullest extent of applicable law.
11. ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
A. Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF FLORIDA. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. The location of the arbitration shall be Fort Lauderdale, Florida. As an alternative, you may bring your claim in your local “small claims" court, if permitted by that small claims court's rules and if within such court's jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Services must be filed within one (1) year after such claim of action arose or be forever banned.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
12. Governing Law and Jurisdiction.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Florida, without regard to the conflict of laws provisions thereof, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of Florida.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.
14. DMCA Copyright Policy.
A. KALI has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent") is listed at the end of this policy.
B. Procedure for Reporting Copyright Infringement. If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
ii. Identification of works or materials being infringed;
iii. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
iv. Contact information about the notifier including address, telephone number and, if available, e-mail address;
v. A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
vi. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
C. Please contact the Designated Agent to Receive Notification of Claimed Infringement for KALI at [email protected]
A. Entire Agreement and Severability. These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
B. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
C. Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sub-licensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
D. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
E. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to [email protected].
F. No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
G. Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
Contact: You may contact us at [email protected].
Effective Date of Terms of Service: January 11, 2016