Terms
TERMS OF SERVICE
Last Updated: October 23, 2023
Important: These Terms require all disputes between us to go through binding arbitration instead of government court. That means you waive any right to have disputes decided (1) by a judge or jury and (2) in class or representative actions. You can opt-out of arbitration for thirty (30) days after you agree to these Terms. To opt-out, see Section 7(k) under Dispute Resolution below.
We provide brief summaries at the beginning of each section to make it easier for you to read and understand this agreement. The summaries do not replace the text of each section, and you should still read each section in its entirety.
1. Introduction
This is a contract between you and K Brand, Inc. You can contact us if you have any questions or concerns. If you do not understand or agree to these Terms, don’t use the Services.
The Agreement: By accessing or using our Services, you agree to be bound by these Terms of Service (“Terms”), our Privacy Policy and any other policies or guidelines incorporated or referenced herein (together, the “Agreement”).
It’s important that you read this Agreement and these policies carefully before you accept them. This Agreement governs your use of the online platform and other products and services (which we call the “Services”) made available by K Brand Inc, Inc. (“K Brand, Inc,” “we,” “us” or “our”).
The Services are hosted on Shopify, Inc.’s e-commerce platform (“Shopify”). Along with other third parties, Shopify enables aspects of the Services that you can use to purchase products from us. See Third Party Services and Materials below for more details.
Updates: These Terms are effective as of the Last Updated date. We may update these Terms from time to time, in which case we will update the Last Updated date at the top of these Terms.
If we make significant changes, we’ll do our best to notify you, such as by emailing the address associated with your Account and/or by placing a prominent notice on the login or homepage of the Services. Changes to this Agreement do not create a renewed opportunity to opt out of arbitration (if applicable).
But it’s your sole responsibility to review these Terms from time to time to view any such changes. By using or accessing the Services after the Last Updated date, you accept the current Terms. If you do not accept a change to the Terms, you must stop accessing or using the Services immediately.
Contact Us: You may contact us regarding the Services or these Terms at: 3578 Hayden Avenue, Suite N1, Culver City, CA 90232, or by e-mail at support@khy.com with “Terms of Service” in the subject line of your email.
2. Eligibility and Responsibilities
By using the Services, you represent and warrant that you comply with these restrictions.
2.1. In these Terms, “you” and “your” means you as the user of the Services.
(a) You must be 16 or older to use the Services, or otherwise of legal age to form a binding contract in your jurisdiction. If you are under the age of majority where you live, but are 16 or older, you are only permitted to use the Services if your parent or guardian accepts these Terms on your behalf prior to use of the Services. By using the Services, you affirm that you are of legal age to enter into this Agreement and to use the Services.
(b) If you use the Services on behalf of a company, then “you” includes you and that entity, and you represent and warrant that (a) you are authorized to bind the company to these Terms, and (b) you agree to these Terms on the company’s behalf.
2.2. Creating and Safeguarding your Account. To use certain parts of the Services, you may need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit and update your Account via the following means, log into your Account at www.khy.com, or by contacting support@khy.com.You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at support@khy.com, with “Account Issue” in the subject line of your email, if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.
2. Orders for Products
(a) Payment. The Services may permit you to purchase physical or digital products through the Services (“Offerings”). You acknowledge and agree that all information you provide to purchase Offerings, such as your credit card, PayPal, or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice and in our sole and complete discretion, to (a) discontinue, modify, or limit the available quantity of, any Offerings, and (b) refuse to allow any user to purchase any Offering or deliver such Offerings to a user or a user designated address. When you purchase Offerings, you (a) agree to pay the price for such Offerings as set forth in the applicable Service, and all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”), and (b) authorize us to charge your credit card or other payment method for the Full Purchase Amount. The Services may allow you to purchase Offerings and designate them to be delivered or provided at a future date. In such instance, you acknowledge and agree that we may charge your credit card or other payment method for the Full Purchase Amount on the date of purchase, rather than on the ultimate date of shipment or provision of the applicable Offering. Unless otherwise noted, all currency references are in U.S. Dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. As of the Last Updated date above, payment can be made by credit card, debit card, and PayPal. Orders will not be processed until payment has been received in full, and any holds on your account by PayPal or any other payment processor are solely your responsibility.
(b) Promotional Codes. We may offer certain promotional codes, referral codes, discount codes, coupon codes or similar offers (“Promotional Codes”) that may be redeemed for discounts on future Offerings, or other features or benefits related to the Services, subject to any additional terms that the Company establishes. You agree that Promotional Codes: (a) must be used in a lawful manner; (b) must be used for the intended audience and purpose; (c) may not be duplicated, sold or transferred in any manner, or made available by you to the general public (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted by the Company; (d) may be disabled or have additional conditions applied to them by the Company at any time for any reason without liability to the Company; (e) may only be used pursuant to the specific terms that the Company establishes for such Promotional Code; (f) are not valid for cash or other credits or points; and (g) are available for a limited time and may expire prior to your use; (h) not valid on previous purchases. Promo codes not valid on Forever Series, Bundle Items, Gift Cards, and cannot be applied to sale or markdown items. Full-Price products only.
(c) Gift Cards. Tangible and/or digital gift cards containing stored money value may be offered by us for the purchase of Offerings (“Gift Cards”). You acknowledge that the Company does not make any warranties with respect to your Gift Card balance and is not responsible for any unauthorized access to, or alteration, theft, or destruction of a Gift Card or Gift Card code that results from any action by you or a third party. You also acknowledge that we may suspend or prohibit use of your Gift Card if your Gift Card or Gift Card code has been reported lost or stolen, or if we believe your Gift Card balance is being used suspiciously, fraudulently, or in an otherwise unauthorized manner. If your Gift Card code stops working, your only remedy is for us to issue you a replacement Gift Card code. By purchasing a Gift Card, you represent and warrant to the Company that use of the Gift Card will comply with these Terms and all applicable laws, rules and regulations, and the Gift Card will not be used in any manner that is misleading, deceptive, unfair or otherwise harmful to consumers. Gift Cards cannot be used to purchase other gift cards, reloaded, resold, used for payment outside of the Services, used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, redeemed for more than face value, transferred for value, redeemed for cash, or returned for a cash refund (except to the extent required by law). Gift Cards do not expire, and the Company will not assess a service fee or dormancy fee with respect to a Gift Card.
(d) Changes and Pricing. The Company may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any Offerings. While we attempt to be as accurate as we can in our descriptions for the Offerings, we do not promise that Offering descriptions are accurate, complete, reliable, current, or error-free. If an Offering itself is not as described on the Services, your sole remedy is to return it (for physical products, in unused condition) as described in our Shipping & Refunds Policy. The inclusion of any Offerings for purchase through the Services at a particular time does not mean that the Offerings will be available at any other time. We reserve the right to change prices for Offerings displayed on the Services at any time, and to correct pricing errors that may inadvertently occur (and to cancel any orders in our sole discretion that were purchased with pricing errors). All such changes shall be effective immediately upon posting of such new Offering prices to the Services and/or upon making the
customer aware of the pricing error.
(e) Order Acceptance; Shipment. Once we receive your order for an Offering, we will provide you with an order confirmation. Your receipt of an order confirmation, however, does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. We reserve the right at any time after receiving your order to accept or decline your order for any reason and in our sole discretion. We will generally bill your payment card at the time we ship your item or when we believe that our inventory levels and shipping partners will permit us to deliver items in your order within 72 hours. If we cancel an order after you have already been billed, then we will refund the billed amount. Title and risk of loss for any purchases of physical products pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you). For more information, see our Shipping & Refunds Policy. While deliveries may be scheduled for a specified arrival, we cannot guarantee delivery by any specific date or time.
3. Rights We Grant You
(a) License Grant. Subject to your compliance with these Terms, the Company hereby grants to you, a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software provided to you as part of the Services. This license has the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these Terms and subject to the use restrictions described below.
(b) Restrictions on Your Use of the Services. You may not do any of the following, unless applicable laws or regulations prohibit these restrictions, or you have our written permission to do so:
(i) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services;
(ii) duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
(iii) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(iv) use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
(v) exploit the Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
(vi) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party's access to or use of the Services or use any device, software or routine that causes the same;
(vii) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, or the computer systems or networks connected to the Services;
(viii) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
(ix) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
(x) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
(xi) use the Services for illegal, harassing, unethical, or disruptive purposes;
(xii) violate any applicable law or regulation in connection with your access to or use of the Services.
(xiii) access or use the Services in any way not expressly permitted by these Terms.
4. Ownership and Content
(a) Ownership. Except for any content you provide, any text, content, graphics, user interfaces, trademarks, logos, sounds, artwork, images, and other intellectual property appearing on our Services is owned, controlled or licensed by us and protected by copyright, trademark and other intellectual property law rights (“Our Content”). All rights, title, and interest in and to Our Content remains with us at all times. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any right, title, or interest in or to Our Content, the Services or other intellectual property provided in connection with this Agreement.
(b) Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
(c) Your Content License Grant. In connection with your use of the Services, you may be able to post, upload, or submit content to be made available through the Services (“Your Content”). As a condition of your use of the Services, you grant us a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicensable license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative works (either alone or as part of a collective work) from Your Content. As part of the foregoing license grant you agree that (a) the other users of the Services shall have the right to comment on and/or tag Your Content and/or to use, publish, display, modify or include a copy of Your Content as part of their own use of the Services, and (b) we have the right to make any of Your Content available to third parties, so that those third parties can distribute, make derivative works of, comment on and/or analyze your Content on other media and services (either alone or as part of a collective work). By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
5. Third Party Services and Materials
(a) Use of Third Party Materials in the Services. The Services may display, include or make available content, data, information, applications or materials from third parties like Shopify (“Third Party Materials”), or provide links to certain third party websites. You acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. If you have any complaints in connection with any Third Party Materials or third-party website, please contact such third party directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov.
6. Disclaimers, Limits on Liability and Indemnification
Our Services are provided ‘as is.’ We do not make, and cannot make, any representations about our Offerings or the content or features of our Services. Our liability to you is very limited.
(a) Disclaimers. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; and (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (e) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.
(b) Limitations of Liability. IMPORTANT: You agree that, eexcept for the indemnity obligations stated below, to the fullest extent allowed by applicable law, under no circumstances and under no legal theory will the Company Entities (individually and collectively) be liable to you with respect to the Services or any subject matter of this Agreement for:
(i) Any indirect, special, incidental, or consequential damages of any kind, or
(ii) Any amount, in the aggregate, in excess of the greater of (1) $100 or (2) the amounts paid and/or payable by you to us in the three-month period preceding the applicable claim.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusion or limitation may not apply to you. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
(c) Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your access to or use of the Services; (d) Your Content, or (e) your negligence or willful misconduct.
7. Dispute Resolution.
In the event of a dispute, you and Company agree to try to resolve it informally first. If we can’t resolve it in 60 days, we agree to arbitrate the claim, instead of going to court. You may opt-out of arbitration within 30 days of agreeing to this Agreement, as described below.
You agree to resolve disputes with Company through binding arbitration, except as described in this section 7 (Arbitration Agreement”). The parties expressly waive the right to bring or participate in any kind of class, collective, or mass action, private attorney general action, or any other representative action. You may opt-out of this Arbitration Agreement within thirty (30) days of first accepting these Terms, under Section 7(k).
(a) Covered Disputes. You and Company agree that any dispute or claim between you and Company arising out of or relating to this Agreement or the Services (a “Dispute”) will be resolved by binding arbitration, rather than in court. A Dispute includes any claim or dispute relating to the Services, access and use thereof, your Account, or any aspects of your relationship or transactions with Company, as well as disputes that arose or involve facts occurring before the effectiveness of this Agreement as well as claims that may arise after the termination of this Agreement.
(b) Exceptions to Arbitration. This Arbitration Agreement does not require arbitration of the following types of claims brought by either you or Company:
(i) small claims court actions, if the requirements of the court are met and the claims are only on an individual basis; and
(ii) claims pertaining to intellectual property rights, including trademarks, trade dress, domain names, trade secrets, copyrights and patents.
(c) Informal Dispute Resolution First. Like you, we want to resolve Disputes without resorting to arbitration. If you have a Dispute with us, before initiating arbitration, you agree to mail an individualized request (“Pre-Arbitration Demand”) to support@khy.com so that we can work together to resolve the Dispute. This Section 7(c) is a condition precedent to commencing arbitration, and that the arbitrator will dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures.
(i) A Pre-Arbitration Demand is only valid when it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all.
(ii) The Pre-Arbitration Demand must include: (i) your name, telephone number, mailing address, and email address associated with your account; (ii) the name, telephone number, mailing address and email address of your counsel, if any; (iii) a description of your Dispute; and (iv) your signature.
(iii) Likewise, if Company has a Dispute with you, Company will send an email with its individualized Pre-Arbitration Demand, including the requirements listed above, to the email address associated with your Account.
(iv) If the Dispute is not resolved within sixty (60) calendar days of when either you or Company submitted a Pre-Arbitration Demand, an arbitration can be brought.
(v) This Section 7(c) does not apply to claims brought under the exception to arbitration in Section 7(b).
(d) Arbitration Procedure. If, after completing the informal process in Section 7(c), either you or Company wishes to initiate arbitration, the initiating party must serve the other party with a demand for arbitration. Any demand for arbitration by you will be sent to the Company address in Section 7(c). Company will send any arbitration demand to the email address associated with your Company account or to your counsel, if any. You and Company agree that the Federal Arbitration Act (“FAA”) governs this Arbitration Agreement. If the FAA cannot apply, then the state laws governing arbitration procedures where you reside apply.
(i) The arbitration will be administered by National Arbitration and Mediation (“NAM”) under its operative Comprehensive Dispute Resolution Rules and Procedures, available athttps://www.namadr.com/resources/rules-fees-forms https://www.namadr.com/resources/rules-fees-forms. This Agreement will govern to the extent it conflicts with the arbitration provider’s rules. If the applicable arbitration provider is not available to arbitrate, the parties will select an alternative arbitration provider. If the parties cannot agree on an appropriate alternative arbitration provider, the parties will ask a court of competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5. To the extent there is a dispute over which arbitration provider has jurisdiction, a NAM arbitrator will be appointed to resolve that dispute.
(ii) Arbitration hearings will take place through videoconferencing by default unless you and Company agree upon another location in writing. A single arbitrator will be appointed. The arbitrator may award damages, declaratory or injunctive relief, and recoverable costs. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. An arbitration award will have no preclusive effect in another arbitration or court proceeding involving Company and a different individual. The arbitrator will have the exclusive authority to resolve all threshold arbitrability issues, including whether this Agreement is applicable, unconscionable, or enforceable, as well as any defense to arbitration. However, a court has exclusive authority to rule on the Class Action Waiver in Section 7(f), including any claim that the section is unenforceable, illegal, void or voidable, or that it has been breached.
(iii) If a request to proceed in small claims court (see Section 7(b)(i)), is made after an arbitration has been initiated, but before an arbitrator has been appointed, such arbitration will be administratively closed. Any controversy over the small claims court’s jurisdiction will be determined by the small claims court. If you or Company challenges the small claims court election in your Dispute, and a court of competent jurisdiction determines that the small claims court election is unenforceable, then such election will be severed from this Arbitration Agreement as to your Dispute. However, such court determination will have no preclusive effect in another arbitration or court proceeding involving Company and a different individual.
(e) Jury Trial Waiver. You and Company hereby waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury. You and Company are instead electing that all Disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in Section 7(b) above. Court review of an arbitration award is subject to very limited review. Discovery may be limited in arbitration, and procedures are more streamlined than in court.
(f) Class Action Waiver. You and Company agree that, except as specified in Section 7(g) below, each of us may bring claims against the other only on an individual basis and not on a class, collective, representative, or mass action basis.
(i) The parties hereby waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief to the party’s individual claim.
(ii) Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides, in a final nonappealable decision, that the limitations of this Section 7(f) are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Company agree that that particular claim or request for relief (and only that particular claim or request for relief) will be severed from the arbitration and will be pursued in the courts specified in Section .
(g) Batch Proceedings. To increase the efficiency of administration and resolution of arbitrations, you and Company agree that if 25 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief), presented by or with the assistance or coordination of the same law firm(s) or organization(s), within a one hundred and eighty (180) day period (“Mass Filing”), the parties agree:
(i) to administer the Mass Filing in batches of 25 demands per batch (or less, if fewer than 25 remain) (“Batch Proceedings”) with only one batch filed, processed, and adjudicated at a time;
(ii) to designate one arbitrator for each batch;
(iii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion;
(iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 25 is filed, processed, and adjudicated;
(v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Company and the claimants, will only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and
(vi) that the staged process of batched proceedings, with each set including 25 demands, will continue until each demand (including your demand) is adjudicated or otherwise resolved.
(vii) Any statutes of limitation, including the requirement to file within eighteen (18) months in Section 7(j) below, will remain tolled while any arbitration demands are held in abeyance. While the Batch Proceedings are adjudicated, no other demand for arbitration that is part of the Mass Filing may be processed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration will be due from either party to the arbitration provider. If, contrary to this provision, a party prematurely files an , the parties agree that the arbitration provider must hold those demands in abeyance.
(viii) All parties agree that arbitration demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. Any party may request that the arbitration provider appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as (1) whether the Batch Proceeding process is applicable or enforceable, (2) whether particular demand(s) are part of a Mass Filing, and (3) whether demands within a Mass Filing were filed in accordance with this Agreement, including Section 7(c). To expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may provide and use any procedures necessary to resolve the dispute promptly. Company will pay the Administrative Arbitrator’s costs.
(ix) The parties will work in good faith with the arbitrator to complete each Batch Proceeding within one hundred and twenty (120) calendar days of its initial pre-hearing conference. The parties agree that the Batch Proceeding process is designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings.
(x) This Batch Proceedings provision will in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, or authorizing class arbitration of any kind. Unless Company otherwise consents in writing, Company does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 7(g).
(h) Settlement. At least ten (10) calendar days before the date set for the arbitration hearing, you or Company may serve a written offer of judgment upon the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance will be submitted to the arbitration provider, who will enter judgment accordingly. If the offer is not accepted before the arbitration hearing or within thirty (30) calendar days after it is made, whichever occurs first, it will be deemed withdrawn, and cannot serve as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party will not recover their post-offer costs and will pay the offering party’s costs from the time of the offer.
The parties agree that any disputes with respect to settlement offer(s) or offer(s) of judgment in a Mass Filing are to be resolved by a single arbitrator to the extent such offers contain the same material terms. For arbitrations involving represented parties, the represented parties’ attorneys agree to communicate individual offer(s) of judgment to each and every arbitration claimant or respondent to whom such offers are extended.
(i) Arbitration Costs. Except as provided for in a Mass Filing under Section 7(g), your responsibility to pay any filing, administrative, and arbitrator costs will be solely as set forth in the applicable arbitration provider’s rules.
(j) One-Year Filing Deadline. To the extent permitted by applicable Law, and notwithstanding any other statute of limitations, any claim or cause of action under this Agreement (with the exception of disputes under Section 7(b)(ii)) must be filed within eighteen (18) months after such claim or cause of action arose. Otherwise, that claim or cause of action will be permanently barred. The statute of limitations and any arbitration cost deadlines remain tolled during the required informal process under Section 7(c) above.
(k) Opt-Out. You may reject this Arbitration Agreement and opt out of arbitration by sending an email to opt-out@khy.com within thirty (30) calendar days of creating your Account. Your opt-out notice must be sent from the email address associated with your Account. No one may opt-out another person. Your notice to opt-out must include your first and last name, address, the email address associated with your Company account, and a clear statement that you decline this Arbitration Agreement. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may enter into in the future with us.
(l) Severability. Except as provided in Section 7(f) above, if any provision of this Arbitration Agreement is found to be illegal or unenforceable, then that provision will be severed. The remaining provisions will still apply and will be interpreted to achieve the closest possible intent to the original intent of this section, inclusive of the severed provision.
8. Additional Provisions
(a) Governing Law and Forum. These Terms are governed by the laws of the State of California, without regard to conflict of laws rules, and, subject to Section 7, the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Los Angeles, California. You and the Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
(b) SMS Messaging and Phone Calls. Certain portions of the Services may allow us to contact you via telephone or text messages.
The K Brand Inc mobile message service (the "Service") is operated by K Brand Inc (“K Brand Inc”, “we”, or “us”). Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.
By consenting to K Brand Inc’s SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of K Brand Inc through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).
You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with K Brand Inc. Your participation in this program is completely voluntary.
We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.
You may opt-out of the Service at any time. Text the single keyword command STOP to +18556265655 or click the unsubscribe link (where available) in any text message to cancel. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other K Brand Inc mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms.
For Service support or assistance, text HELP to +18556265655 or email support@khy.com.
We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.
To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
We respect your right to privacy. To see how we collect and use your personal information, please see our Privacy Notice.
You agree that the Company may contact you via telephone or text message at any of the phone numbers provided by you or on your behalf in connection with your use of the Services, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any Offerings. You also understand that you may opt out of receiving text messages from us at any time either by texting the word “STOP” to phone number that is sending messages on our behalf from the mobile device that is receiving the messages, or by contacting support@khy.com with “SMS Opt Out” in the subject line of your email. If you do not choose to opt out, we may contact you as outlined in our Privacy Policy.
(c) Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Updated” date at the top of these Terms. If we make changes that are marginal, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the Services. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
(d) Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of Your Content. The Company shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
(e) Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
(f) California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
(g) Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws.