Money Merlin Terms of Service
Welcome to the MoneyMerlin application and website. The following Terms of Services (“Terms”) are a binding legal agreement between you (“you” or “You”) and Kalacore, Inc. (“Kalacore” or the “Company”) regarding your use of the MoneyMerlin application, associated website, and related services (collectively, the “Service”). Visitors and users of the Service are referred to individually as “User” and collectively as “Users”. The Service is comprised of a mobile application to provide financial literacy education to Users.
PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE. IN ORDER TO USE THE SERVICES, YOU MUST ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. YOU AGREE THAT BY CREATING AN ACCOUNT FOR OR OTHERWISE USING THE SERVICES BY REGISTERING FOR, ACCESSING, OR BROWSING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE, EFFECTIVE AS OF THE DATE OF SUCH ACTION, TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL GUIDELINES AND FUTURE MODIFICATIONS AND YOUR CONTINUED USE OF THE SERVICES WILL MEAN YOU ACCEPT THOSE CHANGES AND AGREE TO THE AGREEMENT AS REVISED. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. YOU MAY NOT AMEND OR CHANGE THIS AGREEMENT UNLESS COMPANY AGREES TO SUCH AMENDMENT OR CHANGE IN WRITING.
Users who violate these Terms may have their access and use of the Service suspended or terminated, at Kalacore’s sole discretion.
1.Eligibility, Account and Account Review.
- Eligibility. The Service is not available to any persons under the age of 13 or to any Users previously suspended or removed from the Service by Kalacore. By registering for, or otherwise using, the Service, you represent that (i) you are at least 13 years of age, (ii) you have not been previously suspended or removed from the Service by Kalacore, and (iii) if you are under the age of 18 or the age of majority in your jurisdiction, you further represent that you are using the Service under the supervision of a parent, legal guardian, or other responsible adult. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such entity or organization to these Terms and you agree to be bound by these Terms on behalf of such entity or organization. If you are agreeing to be bound on behalf of an organization or other entity “you” as used herein means such organization or entity and each end user thereof, including you as an individual.
- Account. When you use the Service, you may be asked to provide a phone number, username, and password in order for us to establish an account for you on the Service (“Account”). You are solely responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your Account and password. You agree that the information you provide to Kalacore, whether on registration or at any other time, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate andup-to-dateat all times. You are solely responsible for any and all activity that occurs within your Account while using the Service, including, but not limited to, the content located in all electronic mail messages sent through the Service from your Account. If you have reason to believe that your Account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any gift card, if applicable), then you agree to immediately notify Kalacore. You may be liable for the losses incurred by Kalacore or others due to any unauthorized use of your Account.
- Account Review. Kalacore reserves the right to approve new Accounts registered with the Service in order to verify eligibility. Kalacore may, at any time and in its sole discretion, suspend your Account for the purpose of investigating any suspected misconduct or violation or breach of these Terms.
- Electronic Signatures are Legal.The MoneyMerlin software platform through which the Service is delivered utilizes a legally binding electronic solution for all signatures. We comply with the requirements of the U.S. Electronic Signature in Global and National Commerce Act of 2000 (ESIGN) and the Uniform Electronic Transactions Act (UETA) regarding electronic signatures and transmissions. By using this platform’se-signatures, you agree that your electronic signature is legally binding, and a) shall be valid as an indication of your intent to be bound to these Terms, (b) shall be deemed your original signature and “written” or “in writing,” (c) comprises an admissible record as between you and Kalacore and/or your employer equivalent to any other original business records, (d) cannot be contested as an inadmissible record based on the best evidence rule or as not satisfying the business records exception to the hearsay rule, and (e) shall satisfy all requirements of an electronic signature under the E-Sign Act and any implementations of UETA. An “electronic signature” includes, without limitation, a manually-signed original signature that is then transmitted by electronic means and an “electronically signed document” means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature.”
- Modification of the Terms.Kalacore reserves the right, at our discretion, to change, modify, add, or remove portions of the Terms at any time. Please check the Terms and any guidelines periodically for changes. In the case of material changes to the Terms, Kalacore will use reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through apop-up window, or other similar mechanism. Except as stated elsewhere, such modified Terms will become effective upon the earlier of (i) your continued use of the Service with actual knowledge of such modified Terms, or (ii) 30 days from publication of such modified Terms on the Service. Your use of the Service following the date that any such change becomes effective constitutes your agreement to be bound by the modified Terms. If you do not agree to the modified Terms, your sole and exclusive remedy is to terminate your account and you may no longer use the Service. Disputes arising under these Terms will be resolved in accordance with the version of the Terms that was in effect at the time the dispute arose.
- Use of the Service.
- The Service. You may use the Services, subject to the terms and conditions of this Agreement. You are solely responsible for your use of the Services. You specifically agree that you may not use the Services for anything other than a lawful and legitimate purpose. In addition to the foregoing, you may not use the Services in any way that (i) does not comply with the terms of this Agreement, as amended by Company from time to time, or any other terms, rules, or guidelines provided by Company concerning your use of the Services, or (ii) might adversely affect Company’s public image, reputation or goodwill. Company reserves the right to provide maintenance and upgrades to its systems, which may make the Services temporarily unavailable. Company will attempt to schedule downtime during hours of low usage such as weekends, holidays and off-peak business hours, but under certain conditions Company may have to work on its systems at other times.
- Compliance with Laws. You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Services. You agree, represent and warrant that (i) you understand the terms and conditions of this Agreement and that it constitutes a valid, binding obligation, and (ii) you have full power, authority and legal capacity to enter into this Agreement.
- Kalacore Content.
- Kalacore Content. Kalacore authorizes you, subject to these Terms, to access and use the Service and the Kalacore Content (as defined below) solely for your personal,non-commercialuse. The contents of the Service, such as designs, text, graphics, images, video, information, logos, button icons, software, audio files and other Kalacore content (collectively, “Kalacore Content”), are intellectual property and protected under copyright, trademark and other laws. Except for any User Content that is provided and owned by Users, all Kalacore Content is the property of Kalacore or its licensors. The compilation (meaning the collection, arrangement and assembly) of all content on the Service is the exclusive property of Kalacore and is protected by copyright, trademark, and other laws. Unauthorized use of the Kalacore Content may violate these laws and/or applicable communications regulations and statutes, and is strictly prohibited. You must preserve all copyright, trademark, service mark and other proprietary notices contained in the original Kalacore Content on any authorized copy you make of the Kalacore Content.
- Restrictions. Except as expressly authorized by Kalacore, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Kalacore Content. Kalacore reserves all rights not expressly granted in the Terms. You may not use any of the Kalacore Content on any other Website, software application, or in a networked computer environment (including, without limitation, by uploading or republishing Kalacore Content on any Internet, Intranet or Extranet site or incorporating the Kalacore Content in any other database or compilation for any purpose). Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause.
- User Content. In order to use the services, you may create or provide information, messages, data and other materials in electronic format that will be stored, uploaded, posted, e-mailed or otherwise transmitted using the services (“user content”). Kalacore claims no ownership or control over any user content. You or a third-party licensor, as appropriate, retain all patent, trademark and copyright to any user content you submit, post or display on or through the service and you are responsible for protecting those rights, as appropriate. It is your responsibility to determine if it is necessary for you to obtain, and, if necessary, for obtaining, any licenses required to use third party information or content that is part of the user materials. You agree not to use the services for, and the user material will not contain, any infringing, illegal, sexually explicit, hateful, vulgar, threatening, abusive, harassing, defamatory, or racially, ethnically, or otherwise objectionable material, including, without limitation, any materials that could give rise to any liability to company or which might adversely affect company’s public image, reputation or goodwill. Kalacore reserves the right to refuse to accept, post, display or transmit any user content in its sole discretion. Kalacore may review and remove any user content or any part thereof that, in its sole judgment, violates these terms, violates applicable laws, rules or regulations, is abusive, disruptive, offensive or illegal, or violates the rights of, or harms or threatens the safety of, users of the service. You will be responsible for making back-up and archival copies of all user materials. In no event will company be responsible to you or any other person or party for any loss, corruption or alteration of user materials, or for any loss arising out of any breach of any security, including, without limitation, any special, direct, indirect or other damages of any kind.
- License. By submitting, posting or displaying User Content on or through the Service, you grant Kalacore a worldwide,non-exclusive,sub-licensable and royalty-free license to reproduce, adapt, modify (solely to conform with Kalacore’s guidelines and restriction applicable to such User Content), distribute and publish such User Content any modifications thereof through the Service or any other means Kalacore deems appropriate and consistent with the intended features of the Service in its sole discretion. In addition, by submitting, posting or displaying User Content which is intended to be available to the general public, you grant Kalacore a worldwide, non-exclusive, sub-licensable and royalty-free license to reproduce, adapt, modify (solely to conform with Kalacore’s guidelines and restriction applicable to such User Content, including without limitation the restrictions provided in Section 9 below), distribute and publish such User Content for the purpose of promoting Kalacore and its services. Kalacore will discontinue this licensed use within a commercially reasonable period after such User Content is removed from the Service. If you post User Content in any public area of the Service, you also permit any User and/or sub-licensee of Kalacore to access, display, view, store, and reproduce such User Content for personal or internal business use. Subject to the foregoing, the owner of such User Content placed on the Service retains any and all rights that may exist in such User Content.
Violations of system or network security may result in civil and/or criminal liability. Kalacore will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.
- Gift Cards/No Refunds/No Redemption. As part of the Service Kalacore may electronically issue you certain gift cards. By using the Service you acknowledge and agree that Kalacore will not be liable for any failure, fault, interruption, failure of delivery, funding, complaint, liability, or any claim whatsoever which you may have with regard to the delivery, value, use, applicability or terms associated with any use of any gift card and that your sole and exclusive remedy with regard to any claim regarding a gift card will be with the third-party issuer of the card and not against Kalacore, its employees, officers, directors, or affiliates. Furthermore, you acknowledge that Kalacore nor any of its affiliates will pay any refund of any unused or unavailable portion or any card nor will Kalacore redeem any portion of the value of any card.
11.Digital Millennium Copyright Act. It is Kalacore’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Kalacore will promptly terminate without notice your access to the Service if you are determined by Kalacore to be a “repeat infringer.” A repeat infringer is a User who has been notified by Kalacore of infringing activity violations more than twice and/or who has had a user communication or any other user-submitted content removed from the Service more than twice.
12.Third-Party Sites, Products and Services; Links. The Service may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”). Kalacore does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service are solely between you and such advertiser. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK.
- Termination by Kalacore. You agree that Kalacore, in its sole discretion, for any or no reason, and without penalty, may terminate any Account you may have with Kalacore or your use of the Service and remove and discard all or any part of your Account, User profile, and any user communications, at any time. Kalacore may also in its sole discretion, and at any time, discontinue the Service or discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service or any Account you may have or portion thereof may be affected without prior notice, and you agree that Kalacore will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Kalacore may have at law or in equity. As discussed herein, Kalacore does not permit copyright infringing activities on the Service, and will terminate access to the Service, and remove all user communications and other content submitted by any Users who are found to be repeat infringers. Furthermore, should Kalacore choose to terminate the Service or any Account any residual reward balance toward a gift card will be forfeit without penalty to Kalacore and you specifically waive any claim related to such forfeitures against Kalacore, its employees, officers, directors, or affiliates.
- Termination by You. Your only remedy with respect to any dissatisfaction with (i) the Service, (ii) any term of these Terms of Service, (iii) any policy or practice of Kalacore in operating the Service, or (iv) any content or information transmitted through the Service, is to terminate the Terms and your Account. You may terminate the Terms at any time by deleting your login Account with the Service and discontinuing use of any and all parts of the Service.
- Survival. Sections which by their terms are intended to survive the termination of the Terms or your use of the Service shall survive in accordance with such terms.
- Indemnification. You agree to indemnify, save, and hold Kalacore, its affiliated companies, contractors, employees, agents and itsthird-partysuppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of the Terms, any violation by you of applicable law, or any breach of the representations, warranties, and covenants made by you herein. Kalacore reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Kalacore, and you agree to cooperate with Kalacore’s defense of these claims. Kalacore will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
15.Disclaimers; No Warranties.
- No Warranties. THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW,
KALACORE, AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KALACORE OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT, AS USED IN THIS SECTION 15, THE TERM KALACORE INCLUDES KALACORE’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
- “As is” and “As available” and “With All Faults”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ANY DATA, INFORMATION, THIRD- PARTY SOFTWARE, USER COMMUNICATIONS, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
- Content. KALACORE, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, USER CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU FURTHER ACKNOWLEDGE AND AGREE THAT NOT ALL EMAIL MESSAGES AND MARKETING COMMUNICATIONS SENT THROUGH THE USE OF THE SERVICE WILL BE RECEIVED BY THEIR INTENDED RECIPIENTS.
- Accuracy. KALACORE, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
- Harm to your Computer. YOU UNDERSTAND AND AGREE THAT YOUR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
16.Limitation of Liability and Damages.
- Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO,
NEGLIGENCE, WILL KALACORE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON- PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THE TERMS OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE SERVICE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH KALACORE, EVEN IF KALACORE OR A KALACORE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, KALACORE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- Limitation of Damages. IN NO EVENT WILL KALACORE’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, ORTHIRD-PARTYPARTNERS’, LICENSORS’, OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF THE SERVICE OR YOUR INTERACTION WITH OTHER SERVICE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR FIVE DOLLARS, WHICHEVER IS GREATER.
- Reference Sites. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN KALACORE AND RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY REFERENCE SITES.
- Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT KALACORE HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND KALACORE, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND KALACORE. KALACORE WOULD NOT BE ABLE TO PROVIDE
THE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
- Limitations by Applicable Law. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
- Dispute Resolution and Arbitration.
- Dispute Resolution. In the interest of resolving disputes between you and Kalacore in the most expedient andcost-effectivemanner, you and Kalacore agree that any and all disputes arising in connection with the Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of the Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into the Terms, you and Kalacore are each waiving the right to a trial by jury or to participate in a class action.
- Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Arbitrator. Any arbitration between you and Kalacore will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at1-800-778-7879.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Kalacore’s address for Notice is: Kalacore, Inc.,P.O. Box 71670, Phoenix, AZ., 85050. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Kalacore may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Kalacore shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
- Fees. Any arbitration hearings will take place at a location to be agreed upon in Salt Lake County, Utah, provided that if the claim is for $5,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through anon-appearancebased telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Kalacore for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions.YOU AND KALACORE AGREE THAT EACH MAY BRING CLAIMS AGAINST
THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Kalacore agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. In the event that Kalacore makes any future change to this arbitration provision (other than a change to the Kalacore’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Kalacore’s address for Notice, in which case your account with Kalacore shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
- Enforceability. If any of this Section or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in the “Miscellaneous” Section, below, shall govern any action arising out of or related to the Terms.
- Governing Law and Jurisdiction. The Terms will be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to the Terms or Service will be filed only in the state or federal courts in and for Salt Lake County, Utah, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s intellectual property rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
- Improperly Filed Claims. All claims you bring against Kalacore must be resolved in accordance with this Agreement. All claims filed or brought contrary to this Agreement shall be considered improperly filed. Should either party file a claim contrary to this Agreement, the other party may recover attorneys’ fees and costs up to one thousand U.S. Dollars ($1,000.00 USD), provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.
- Claims. YOU AND KALACORE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Notice. Kalacore may provide you with notices, including those regarding changes to the Terms, by email or by postings on the Service. Notice will be deemed giventwenty-fourhours after email is sent, unless Kalacore is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Service. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Service is deemed given 30 days following the initial posting.
- Waiver. The failure of Kalacore to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms will be effective only if in writing and signed by Kalacore.
- Severability. If any provision of the Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
- Assignment. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Kalacore without restriction. Any assignment attempted to be made in violation of the Terms shall be void.
- Headings. The heading references herein are for convenience purposes only, do not constitute a part of the Terms, and will not be deemed to limit or affect any of the provisions hereof.
- Disclosures. The provider of the Service is Kalacore, Inc., we can be reached by email