Kintsugi helps people feel better about their daily stress.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Agreement of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Agreement of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY KINTSUGI IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Kintsugi will make a new copy of the Agreement of Use available within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service within the Application. We will also update the “Last Updated” date at the top of the Agreement of Use. Kintsugi may require you to provide consent to the updated Terms in a specified manner before further use of the Website, Application and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, Application and/or the Services. Otherwise, your continued use of the Website, Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE OR APPLICATION TO VIEW THE THEN-CURRENT TERMS.
1. Use of the Services and Kintsugi Properties
1.2 Limitations of Services. Kintsugi’s Services, including Kintsugi Concierge Representatives, are not intended to provide medical advice to users and are provided for informational purposes only. YOU ACKNOWLEDGE AND AGREE THAT KINTSUGI DOES NOT PROVIDE ANY MEDICAL, PSYCHOLOGICAL, OR OTHER CLINICAL ADVICE OF ANY KIND OR MAKE ANY MEDICAL, PSYCHOLOGICAL OR OTHER CLINICAL DECISIONS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR RELATIONSHIP WITH ANY HEALTHCARE PROVIDER, INCLUDING ANY HEALTHCARE PROVIDER WHO DIRECTS YOU TO USE THE SERVICES, IS SOLELY WITH SUCH HEALTHCARE PROVIDER. YOU ACKNOWLEDGE AND AGREE THAT KINTSUGI DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, VERACITY, COMPLETENESS, APPROPRIATENESS, OR SAFETY OF ANY INFORMATION OR RESOURCES RECEIVED OR PROVIDED OR MADE AVAILABLE THROUGH THE SERVICES. KINTSUGI DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, CLINICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION OR RESOURCES MADE AVAILABLE THROUGH THE SERVICES. KINTSUGI DOES NOT ITSELF PROVIDE SERVICES REQUIRING PROFESSIONAL LICENSURE OR QUALIFICATIONS (E.G., PHYSICIAN OR OTHER MEDICAL OR PSYCHOLOGICAL PROFESSIONAL SERVICES) AND THE SERVICES PROVIDED BY THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL, PSYCHOLOGICAL OR OTHER CLINICAL ADVICE OR OPINION. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL, MENTAL, PSYCHOLOGICAL, OR OTHER HEALTH CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL OR CLINICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SERVICES. THE SERVICES ARE NOT INTENDED FOR EMERGENCY USE. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR SEEK IMMEDIATE OR OTHER APPROPRIATE EMERGENCY ATTENTION. IF YOU ARE SUICIDAL OR ARE EXPERIENCING SUICIDAL THOUGHTS, IMMEDIATELY CALL 911 OR CONTACT A SUICIDE PREVENTION HOTLINE SUCH AS THE NATIONAL SUICIDE PREVENTION LIFELINE AT 1-800-273-8255. IF YOU ARE OUTSIDE OF THE UNITED STATES, PLEASE CONTACT YOUR LOCAL CRISIS LINE: www.iasp.info/crisis-centres-helplines/.
1.3 No Physician-Patient Relationship with Kintsugi. The information generated by us or the Services should not be interpreted as a substitute for a professional therapist or other healthcare professional consultation, evaluation, or treatment, and the information made available on or through the Services should not be relied upon when making medical or other clinical decisions or to diagnose or treat a medical, mental, psychological, or health condition. Nothing contained in the Services should be construed as such advice or diagnosis. YOUR USE OF THE SERVICES DOES NOT CREATE A PATIENT OR LICENSED MEDICAL PROFESSIONAL RELATIONSHIP, PHYSICIAN-PATIENT PRIVILEGE, PSYCHOTHERAPIST-PATIENT PRIVILEGE, OR DOCTOR-PATIENT CONFIDENTIALITY BETWEEN YOU AND KINTSUGI OR ANY OTHER USERS OF THE SERVICES. You are urged and advised to seek the advice of a professional therapist, physician or a medical professional with any questions you may have regarding your mental health, or any other information or resources that may be referenced, discussed, or offered under the Services. You represent to us (which representation shall be deemed to be made each time you use the Services), that you are not using the Services or participating in any of the activities offered by the Services for purposes of seeking medical attention. You further agree that, before using the services, you shall consult your physician. If any information you receive or obtain from using the Services is inconsistent with the medical advice from your physician, you agree to follow the advice of your physician.
1.4 Kintsugi Properties. The Application the Services, and the information and content available in the Application and the Services (as these terms are defined herein) (each, a “Kintsugi Property” and collectively, the “Kintsugi Properties”) are protected by copyright laws throughout the world.
1.5 Application License. Subject to your compliance with the Agreement, Kintsugi grants you a limited non-exclusive, non-transferable, non-sub-licensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
1.6 Open Source Software. Some of the software in our Application may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the MIT License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under Section 1.5 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
1.7 Updates. You understand that Kintsugi Properties are evolving. As a result, Kintsugi may require you to accept updates to Kintsugi Properties that you have installed on your computer or mobile device. You acknowledge and agree that Kintsugi may update Kintsugi Properties with or without notifying you. You may need to update third-party software from time to time in order to use Kintsugi Properties.
1.8 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Kintsugi Properties or any portion of Kintsugi Properties, (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Kintsugi Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access Kintsugi Properties in order to build a similar or competitive website, application or service; (d) except as expressly stated herein, no part of Kintsugi Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Kintsugi Properties. Any future release, update or other addition to Kintsugi Properties shall be subject to the Agreement. Kintsugi, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Kintsugi Property terminates the licenses granted by Kintsugi pursuant to the Agreement.
2.1 Registering Your Account. In order to access certain features of Kintsugi Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website or Application (“Account”). In creating an Account, you must provide complete and accurate information about yourself, and maintain and promptly update such information to keep it true, accurate, current and complete. You may not impersonate someone else, create or use an Account for anyone other than yourself, provide an email address other than your own, or create multiple Accounts.
2.2 Registration Data. You represent that you are (a) of legal age to form a binding contract; and (b) not a person barred from using Kintsugi Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (i) notify Kintsugi immediately of any unauthorized use of your password or any other breach of security; and (ii) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Kintsugi has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Kintsugi has the right to suspend or terminate your Account and refuse any and all current or future use of Kintsugi Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use Kintsugi Properties if you have been previously removed by Kintsugi, or if you have been previously banned from any of Kintsugi Properties.
2.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Kintsugi Properties, including but not limited to, a mobile device that is suitable to connect with and use Kintsugi Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Kintsugi Properties.
Unless expressly agreed to by Kintsugi in writing elsewhere, Kintsugi has no responsibility or liability for the deletion or accuracy of Data; the failure to store, transmit or receive transmission of Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of Kintsugi Properties. Certain Services may enable you to specify the level at which such Services restrict access to Data. You are solely responsible for applying the appropriate level of access to Data. If you do not choose, the system may default to its most permissive setting. You agree that Kintsugi retains the right to create reasonable limits on Kintsugi’s use and storage of Data, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Kintsugi in its sole discretion.
4.1 Kintsugi Properties. Except with respect to your Data, you agree that Kintsugi and its suppliers own all rights, title and interest in Kintsugi Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Kintsugi Properties.
4.2 Trademarks. “Kintsugi”, and other related graphics, logos, trademarks, service marks and trade names used on or in connection with Kintsugi Properties are the trademarks of Kintsugi and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Kintsugi Properties are the property of their respective owners.
4.3 Other Content. Except with respect to Data, you agree that you have no right or title in or to any content or other data that appears on or in Kintsugi Properties.
4.4 Data. Kintsugi does not claim ownership of Data. Subject to any applicable account settings that you select, you grant Kintsugi a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Data (in whole or in part) for the purposes of operating the Services and providing Kintsugi Properties to you and to our other Users, and on a de-identified, aggregated basis, for the purpose of improving the Kintsugi Properties and Kintsugi’s other products and services. You agree that you, not Kintsugi, are responsible for all of the Data that you make available on or in Kintsugi Properties.
4.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Kintsugi through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Kintsugi has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Kintsugi a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Kintsugi Properties and/or Kintsugi’s business.
5. User Conduct
As a condition of use, you agree not to use Kintsugi Properties for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity, privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Kintsugi’ prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Kintsugi; (vi) interferes with or attempts to interfere with the proper functioning of Kintsugi Properties or uses Kintsugi Properties in any way not expressly permitted by the Agreement; or (vii) to attempt or engage in, any potentially harmful acts that are directed against Kintsugi Properties, including but not limited to violating or attempting to violate any security features of Kintsugi Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Kintsugi Properties, introducing viruses, worms, or similar harmful code into Kintsugi Properties, or interfering or attempting to interfere with use of Kintsugi Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” Kintsugi Properties.
Kintsugi may, but is not obligated to, monitor or review Kintsugi Properties at any time. Although Kintsugi does not generally monitor user activity occurring in connection with Kintsugi Properties, if Kintsugi becomes aware of any possible violations by you of any provision of the Agreement, Kintsugi reserves the right to investigate such violations, and Kintsugi may, at its sole discretion, immediately terminate your license to use Kintsugi Properties, without prior notice to you.
7. Interactions With Other Users
You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that Kintsugi reserves the right, but has no obligation, to intercede in such disputes. You agree that Kintsugi will not be responsible for any liability incurred as the result of such interactions.
8. Third-Party Services
8.1 Third-Party Websites and Applications. Kintsugi Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Kintsugi Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Kintsugi. Kintsugi is not responsible for any Third-Party Websites or Third-Party Applications. Kintsugi provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Application, the Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play Store (each, an “App Store”). You acknowledge that the Agreement is between you and Kintsugi and not with the App Store. Kintsugi, not the App Store, is solely responsible for Kintsugi Properties, including the Application, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Kintsugi Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Kintsugi Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
8.3 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Agreement is concluded between you and Kintsugi only, and not Apple, and (ii) Kintsugi, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Kintsugi and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Kintsugi.
- You and Kintsugi acknowledge that, as between Kintsugi and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Kintsugi acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Kintsugi and Apple, Kintsugi, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
- You and Kintsugi acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Kintsugi with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Kintsugi with your credit card number and associated payment information, you agree that Kintsugi is authorized to immediately invoice your Account for all fees and charges due and payable to Kintsugi hereunder and that no additional notice or consent is required. You agree to immediately notify Kintsugi of any change in your billing address or the credit card used for payment hereunder. Kintsugi reserves the right at any time to change its prices and billing methods, either immediately upon posting on Kintsugi Properties or by e-mail delivery to you.
You agree to indemnify and hold Kintsugi, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Kintsugi Party” and collectively, the “Kintsugi Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Kintsugi Property; (b) your violation of the Agreement; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations. Employers agree to indemnify and hold the Kintsugi Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of Data. Kintsugi reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Kintsugi in asserting any available defenses. This provision does not require you to indemnify any of the Kintsugi Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website, Application or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Kintsugi Properties.
11. Disclaimer of Warranties and Condition
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF KINTSUGI PROPERTIES IS AT YOUR SOLE RISK, AND KINTSUGI PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. KINTSUGI PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE APPLICATION.
- THE KINTSUGI PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) KINTSUGI PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF KINTSUGI PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF KINTSUGI PROPERTIES WILL BE ACCURATE OR RELIABLE.
- ANY DATA DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH KINTSUGI PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS KINTSUGI PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH DATA.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. KINTSUGI MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KINTSUGI OR THROUGH KINTSUGI PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- FROM TIME TO TIME, KINTSUGI MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT KINTSUGI’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 Not Intended for Emergency Use. KINTSUGI’S GOAL IS TO PROVIDE HELPFUL AND ACCURATE INFORMATION ON THE SERVICES. HOWEVER, THE SERVICES ARE DEPENDENT UPON A NUMBER OF FACTORS THAT ARE OUTSIDE THE CONTROL OF KINTSUGI. USE OF THE SERVICES SHOULD NOT REPLACE YOUR GOOD JUDGMENT AND COMMON SENSE. IF YOU BELIEVE YOU ARE EXPERIENCING A MEDICAL OR OTHER EMERGENCY, CALL 911.
11.3 Medical Disclaimer. THE CLAIMS MADE IN CONNECTION WITH THE APPLICATION OR THROUGH THE SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE OR MEDICAL CONDITION.
KINTSUGI DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES, OR ENGAGE IN THE PRACTICE OF MEDICINE. THE CONTENTS OF THE APPLICATION, INCLUDING TEXT, GRAPHICS, IMAGES, AND OTHER DATA CREATED BY THE SERVICES OR OTHERWISE CONTAINED IN THE APPLICATION OR THROUGH THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO BE A SUBSTITUTE FOR YOUR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT, OR PUBLIC HEALTH INFORMATION.
11.4 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT KINTSUGI PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD KINTSUGI PARTIES LIABLE, FOR THE CONDUCT OR OMISSIONS OF THIRD PARTIES, INCLUDING THE ACTIONS OF FIRST RESPONDERS OR ANY OTHER USERS OF THE APPLICATION, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
12. Limitation of Liability
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL KINTSUGI PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT KINTSUGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF KINTSUGI PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE KINTSUGI PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE KINTSUGI PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON KINTSUGI PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO KINTSUGI PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A KINTSUGI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A KINTSUGI PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A KINTSUGI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL KINTSUGI PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO KINTSUGI BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A KINTSUGI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A KINTSUGI PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A KINTSUGI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3 Data. KINTSUGI ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY DATA, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KINTSUGI AND YOU.
13.1 Termination. These Terms shall remain in full force and effect until your Account is terminated as provided herein. You may delete your Account at any time, for any reason by accessing your profile within the Application and selecting the button to delete your Account. Kintsugi may terminate your Account if (a) you are in breach of the Agreement; (b) if Kintsugi decides in its sole discretion to stop providing the applicable Services; or (c) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Kintsugi will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
13.2 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Data associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Data associated therewith from our live databases. Kintsugi will not have any liability whatsoever to you for any suspension or termination, including for deletion of Data. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14. International Users
Kintsugi Properties can be accessed from countries around the world and may contain references to Services and Data that are not available in your country. These references do not imply that Kintsugi intends to announce such Services or Data in your country. Kintsugi Properties are controlled and offered by Kintsugi from its facilities in the United States of America. Kintsugi makes no representations that Kintsugi Properties are appropriate or available for use in other locations. Those who access or use Kintsugi Properties from other countries do so at their own volition and are responsible for compliance with local law.
15. Dispute Resolution
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Kintsugi arbitrate disputes against one another.
Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION 15 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND Kintsugi HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 15 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND KINTSUGI BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 15 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 15 CAREFULLY.
15.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Kintsugi agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Kintsugi Service, any communications you receive, any products sold or distributed through the Kintsugi Service, or the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Kintsugi may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Kintsugi may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
15.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Kintsugi. If that occurs, Kintsugi is committed to working with you to reach a reasonable resolution. You and Kintsugi agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Kintsugi therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
- The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Kintsugi that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to email@example.com or by mail to Kintsugi Mindful Wellness, Inc., 1569 Solano Avenue, #365, Berkeley, California 94707. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
- The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
15.3 Waiver of Jury Trial. YOU AND KINTSUGI 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 Kintsugi are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.4 Waiver of Class and Other Non-Individualized Relief. YOU AND KINTSUGI AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 15.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND 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. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. 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 warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Section 15.9 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Kintsugi agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Alameda County in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Kintsugi from participating in a class-wide settlement of claims.
15.5 Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Kintsugi agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
- A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
- If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
- Unless you and otherwise agree, or the Batch Arbitration process discussed in Section 15.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
- You and Kintsugi agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
15.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under Section 15.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
15.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
15.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Kintsugi need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
15.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Kintsugi agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Kintsugi by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
- All parties agree that Requests 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. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Kintsugi.
- You and Kintsugi agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
15.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org or Kintsugi Mindful Wellness, Inc. 1569 Solano Avenue, #365, Berkeley, California 94707, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Kintsugi account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Kintsugi as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
15.12 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Kintsugi makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Kintsugi at: email@example.com or Kintsugi Mindful Wellness, Inc. 1569 Solano Avenue, #365, Berkeley, California 94707, your continued use of the Kintsugi Service, including the acceptance of products and services offered on or through the Kintsugi Service, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Kintsugi Service, any communications you receive, any products sold or distributed through the Kintsugi Service or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Kintsugi will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
16. Alerts and Notifications
17. General Provisions
These Terms and any related action will be governed and interpreted by and under the laws of the State of California, without regard conflicts of laws, principles or rules. Venue for any dispute arising out of these Terms will be the state courts located in San Francisco County, California or the federal courts of the United States in the Northern District of California, and each party (you and Kintsugi) consents to personal jurisdiction to such court(s) and also waive any right it may otherwise have to challenge the appropriateness of such forums.
17 .1 Electronic Communications. The communications between you and Kintsugi may take place via electronic means, whether you visit Kintsugi Properties or send Kintsugi e-mails, or whether Kintsugi posts notices on Kintsugi Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Kintsugi in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Kintsugi provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
17.2 Release. YOU HEREBY RELEASE THE KINTSUGI PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION, WHATSOEVER, ARISING OUT OF OR RELATED TO ANY LOSS, PROPERTY DAMAGE, PHYSICAL INJURY, CONTAGIOUS DISEASE OR DEATH THAT MAY BE SUSTAINED BY YOU WHICH MAY BE SUSTAINED BY YOU WHILE USING OR IN CONNECTION WITH THE USE OF THE SERVICES. THIS RELEASE WILL BE BINDING UPON YOUR RELATIVES, SPOUSE, HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, AND ANY OTHER INTEREST PARTIES.
You waive and relinquish any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver, including any all rights and benefits which you have or may have under California Civil Code Section 1542 or any similar provision of the statutory or non-statutory law of any other jurisdiction (including without limitation Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits. You acknowledge that the releases in this Agreement are intended to be as broad and inclusive as permitted by law, and as a complete and continuous release and waiver of liability for any and all use of the Services.
17.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Kintsugi’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4 Force Majeure. Kintsugi shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Kintsugi Properties, please contact us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6 Exclusive Venue. To the extent the parties are permitted under the Agreement to initiate litigation in a court, both you and Kintsugi agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Alameda County, California.
17.7 Governing Law THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE TERMS.
17.8 Notice. Where Kintsugi requires that you provide an e-mail address, you are responsible for providing Kintsugi with your most current e-mail address. In the event that the last e-mail address you provided to Kintsugi is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Kintsugi’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Kintsugi at the following email address: email@example.com or address: Kintsugi Mindful Wellness, Inc., 1569 Solano Avenue, #365, Berkeley, California 94707. Such notice shall be deemed given when received by Kintsugi by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.10 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.11 Export Control. You may not use, export, import, or transfer Kintsugi Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Kintsugi Properties, and any other applicable laws. In particular, but without limitation, Kintsugi Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Kintsugi Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Kintsugi Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Kintsugi are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Kintsugi products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.12 Consumer Complaints. In accordance with California Civil 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.13 Entire Terms. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter