Terms & Conditions

Electronic Communications

The communications between you and Kainsuite use electronic means, whether you visit the Website or send Kainsuite e-mails, or whether Kainsuite posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Kainsuite in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Kainsuite 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.

Release

You hereby release Kainsuite and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage of any kind arising in connection with or as a result of the Terms or your use of the Website, the Application, the Software or the Service. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.

Assignment

The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Kainsuite’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

Force Majeure

Kainsuite and its licensors 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; materials; problems with your computing or network infrastructure, hardware or product; problems with your internet service provider (ISP) or any sites you are attempting access through the VPN Service; or any electrical or other utility outage.

Dispute Resolution

(a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules:

(1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration;

(2) all arbitration proceedings shall be held in English;

(3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties;

(4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Kainsuite may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Kainsuite Properties.

(b) Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).

(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

(d) You and Kainsuite must abide by the following rules:

(i) ANY CLAIMS BROUGHT BY YOU OR Kainsuite MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING;

(ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF;

(iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Kainsuite will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation;

(iv) Kainsuite also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration;

(v) the arbitrator shall honor claims of privilege and privacy recognized at law;

(vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award;

(vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law;

(viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.

(e) The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. 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 arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 8 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.

– Notwithstanding the foregoing, either you or Kainsuite may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.

(f) With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Kainsuite shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco County, California. By using the Kainsuite Properties in any manner, you agree to the above arbitration provision. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.

Choice of Law and Venue

The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflict of laws principles that require the application of the law of a different state. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which Kainsuite’s principal place of business is located for any lawsuit filed against you by Kainsuite arising from or related to the Terms.

Notice

Where Kainsuite requires that you provide an e-mail address, you are responsible for providing Kainsuite with your most current e-mail address. In the event that the last e-mail address you provided to Kainsuite is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, Kainsuite’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Kainsuite at the following address: 178 Castro St., San Francisco, CA 94114. Such notice shall be deemed given when received by Kainsuite by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

Waiver

Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Severability

If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

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 iPhone or Android app stores (“App Store”). You acknowledge and agree that the Terms are between you and Kainsuite only, and not with the App Store. Kainsuite, not the App Store, is solely responsible for the Kainsuite Properties, including the Application, the contents thereof, maintenance, support services, and warranty therefor, 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 the Kainsuite Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third- party terms of agreement (e.g., the App Store’s terms and policies) when using the Kainsuite Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.

Accessing and Download the Application from iTunes

The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

(a) You acknowledge and agree that (i) the Terms are concluded between you and Kainsuite only, and not Apple, and (ii) Kainsuite, 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.

(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(c) 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 Kainsuite 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 Kainsuite.

(d) You and Kainsuite acknowledge that, as between Kainsuite 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.

(e) You and Kainsuite 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 Kainsuite and Apple, Kainsuite, 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 Terms.

(f) You and Kainsuite acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.

(g) Without limiting any other terms of the Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.

Export Control

You may not use, export, import, or transfer the Kainsuite Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Kainsuite Properties, and any other applicable laws. In particular, but without limitation, the Kainsuite 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 the Kainsuite Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Kainsuite 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 Kainsuite 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 the Kainsuite products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

International Users

The Kainsuite Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Kainsuite intends to announce such Services or Content in your country. The Kainsuite Properties are controlled and offered by Kainsuite from its facilities in the United States of America. Kainsuite makes no representations that Kainsuite Properties are appropriate or available for use in other locations. Those who access or use the Kainsuite Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.

Questions, Complaints, and Claims

If you have any questions, complaints or claims, please contact us at: info@kainsuite.com. 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.