Welcome, and thank you for your interest in Game Prophecies, Inc. (“Kanga,” “We,” or “Us”). These terms of service (“Terms”) establish the terms and conditions that apply to you when you use the Services (as defined below). Our Services include the websites at www.kanga.gg and www.joinkanga.com (collectively, the “Site”).
AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. YOU CAN OPT-OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING HELP@KANGA.GG WITHIN 30 DAYS OF FIRST ACCEPTING THESE TERMS AND STATING THAT YOU (INCLUDE YOUR FIRST AND LAST NAME) DECLINE THIS ARBITRATION AGREEMENT.
The “Services” collectively refers to Kanga’s website, mobile applications, API, browser extensions, and any other online services offered by Kanga, its affiliates, or subsidiaries, as each may be updated, relocated, or otherwise modified from time to time, and all intellectual property contained therein. The Services include access to an e-video game streaming platform which enables users to view, discover, and receive updates regarding e- video game games and e- video game players’ streams in real-time. Any person who accesses and/or uses the Services, or on his or her own behalf or on behalf of any third party, will be referred to herein as a “User.”
Subject to your complete and ongoing compliance with all the Terms, Kanga grants you a limited, non-exclusive, nontransferable, non-sublicensable, revocable license to: (A) in the case of the Kanga iOS or Android mobile application, download, install, access, and use the mobile application associated with the Services downloaded from either the iOS App Store or Google Play Store, as applicable, and to use such mobile applications so installed, in each case, solely in object code format, and solely for your personal, non-commercial use for lawful purposes, on mobile devices that you own or control; (B) in the case of a Chrome or Firefox extension, download, install, access, and use the browser extension associated with the Services downloaded from either the Chrome Web Store or Firefox Add-ons website, as applicable, and to use such extensions so installed, in each case solely in object code format, and solely for your personal, non-commercial use for lawful purposes, on devices that you own or control; and (C) in the case of a website browser, access and use the Services solely for your personal, non-commercial use for lawful purposes, on devices that you own or control.
Kanga reserves the right at all times, for any reason, and without notice to: (A) restrict, deactivate, and/or terminate your access to the Services (or any portion thereof); and (B) modify or discontinue providing the Services (or any portion thereof). You agree that Kanga will not be liable to you or any third party for any termination or modification to the Services regardless of the reason for such termination or modification. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of Services made by us is to terminate your use of the Services.
You acknowledge that in the event you provide any information to Kanga which is untrue, inaccurate, not current, or incomplete, Kanga may terminate these Terms and your continued access and use of the Services.
You represent and warrant that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and that you have not previously been suspended or removed from the Services. THE SERVICES ARE NOT FOR PERSONS UNDER THE AGE OF 13 OR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICES BY KANGA. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICES AT ANY TIME OR IN ANY MANNER.
If you are using the Services on behalf of an individual, company, entity, or organization (each, an “Organization”), you represent and warrant that (A) you are an authorized representative of such Organization with the authority to bind such Organization to these Terms, (B) agree to be bound by these Terms on behalf of such Organization, and (C) your Organization meets the eligibility requirements for the Services, as set forth in these Terms. Further, you will be solely responsible for ensuring your Organization complies with these Terms.
You agree that your registration and use of the Services will comply with any and all applicable law and regulations.
In order to access certain functionality of the Services, you may be required to create an account and to select a username and password for such account (your “Credentials”) as well as provide us your name and other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You are entirely responsible for maintaining the security and confidentiality of your account and password. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org. You are responsible for all use of the Services occurring under your user name and all content posted in connection therewith or with your account elsewhere on the Services. You are responsible for keeping your password confidential and for notifying us if your password has been hacked or stolen. Kanga will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for any losses incurred by Kanga or another party due to someone else using your account or password. You agree to indemnify, defend, and hold harmless Kanga and its customers, vendors, affiliates, employees, directors, and agents from and again any claims, losses, damages, and other harm arising in connection with the unauthorized use (including without limitation any use by a person or entity other than you, and any use not expressly permitted by these Terms) of your Credentials.
Kanga encourages people to actively log in and use the Services when they create an account. To keep your account active, we recommend logging into your account at least every 3 months. Accounts may be permanently removed due to prolonged inactivity.
You may use the Services solely for lawful purposes, as intended through the provided functionality of the Services. You may not use the Services in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to the Services, user accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you expressly agree that you will not (and you agree not to allow or assist any third party to):
We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce these Terms.
Some of the features of the Service may enable Kanga to access your location in order to tailor your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your mobile phone, which enables Kanga to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. If you choose to disable any Location-based Services on your device, you will not be able to utilize certain features of the Services. By enabling Location-based Services, you agree and acknowledge that: (A) device data we collect from you is directly relevant to your use of the Services; (B) Kanga may provide Location-based Services related to and based on your then-current location; and (C) Kanga may use any such information collected in connection with provision of the Services.
When you register with Kanga, Kanga may send you an SMS text message containing a 4-digit code in order to verify your phone number and will send SMS text messages and push notifications (“Messages and Notifications”) in order to keep you informed about the Services. By using the Services, you agree to receive Messages and Notifications regarding your use of the Services. SMS text messages are for informational purposes only. While Messages and Notifications are intended to enhance your use of the Services, you may (A) disable push notifications on your device, and/or (B) reply “STOP” to remove yourself from our text message database. Depending on your current carrier plan, you may incur charges for these Messages and Notifications and agree you will not hold, nor participate in any action which seeks to hold, Kanga liable for any charges incurred. You acknowledge that any terms between you and any third-party provider (such as, for example, Apple®, AndroidTM, or Verizon) create no obligation or responsibility on the part of Kanga, and that Kanga is not responsible for any failure of warranty by any such third party. Kanga cannot control certain factors relating to message delivery. You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures.
You acknowledge and agree that: (A) the Services, including, without limitation, any content, modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information”), is owned by Kanga and its licensors, as applicable; (B) the Proprietary Information contains valuable copyrighted and proprietary material of Kanga; (C) the Proprietary Information is licensed, rather than sold, to you pursuant to these Terms; and (D) you have no rights in the Proprietary Information, other than the rights and licenses specifically granted to you pursuant to these Terms
Certain features of the Services may permit Users to upload content to or livestream content via the Services, including comments, photos, video, images, data, text, your likeness, and other types of works (“User Content”) and to publish User Content on the Services. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Services. You hereby consent to Kanga’s access, use, and processing of your User Content for the purpose of providing the Services.
By posting or publishing User Content, you grant Kanga a worldwide, perpetual, non-exclusive, transferable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, create derivative works of, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any and all media or distribution methods now known or later developed.
By posting or sharing User Content with other users of the Services, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Services. You further acknowledge and agree that Kanga will not generally perform any editorial functions whatsoever on User Content, and will not be responsible for the actions of other users or third parties that post User Content or make use of the User Content you upload to the Services.
You agree that Kanga will have no responsibility or liability with respect to any User Content that is processed, transmitted, disclosed, or stored in connection with the Services. Kanga is not responsible for performing, and is not liable for any failure to perform, any back-up of any User Content provided, processed, or stored in or through the Services. Kanga recommends that you perform regular exports and back-ups of your User Content.
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
We are under no obligation to edit or control User Content that you or other Users post or publish, and will not be in any way responsible or liable for User Content. Kanga may, however, at any time and without prior notice, remove or block any User Content that we have reason to believe, in our sole judgment, violates these Terms, violates applicable law, or is otherwise objectionable. You understand that when using the Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Kanga with respect to User Content. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH USER CONTENT. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Kanga does not permit copyright-infringing activities on the Services.
If you are an entity or organization, you agree that Kanga may list your entity or organization as a customer of Kanga and use your entity or organization name and logo for marketing or promotional purposes and in other communication with existing or potential Kanga customers, resellers, or investors. You may revoke this consent at any time by sending an email to email@example.com.
The Services may allow Users to exchange messages (“Messages”) with each other. Harmful, obscene, abusive, or offensive communications are not welcome in any Messages. If a user sends you an objectionable Message, please notify us by sending an e-mail to firstname.lastname@example.org. You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree that Kanga may monitor Messages for compliance with these Terms, and therefore, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transfer to the intended recipient through the Services and for such other purpose as Kanga may deem appropriate in its sole discretion.
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Game Prophecies, Inc.
ATTN: Legal Department (Copyright Notification)
225 E 95th Street 25C
New York, NY 10128
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
You may terminate your account and these Terms at any time by contacting customer services at email@example.com.
Upon termination of these Terms, your license rights will terminate and must immediately crease all use of the Services. The following Sections of these Terms will survive termination or expiration of the Agreement: 1.b, 1.c, 2.b, 2.d, 7.a, 7.c, 7.d through 7.j, 8 through 14, 15.b, 15.d through 15.f, 16 through 28, and any other terms which, by their nature, are intended to survive termination or expiration.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, KANGA, ITS OFFICERS, DIRECTORS, AGENTS, AFFILIATES, JOINT VENTURES, SERVICE PROVIDERS, LICENSORS, CONTENT PROVIDERS, AND EMPLOYEES (COLLECTIVELY, THE “KANGA PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE KANGA PARTIES DO NOT WARRANT THAT THE SERVICES OR ANY PORTION OF OR THE SERVICES, OR ANY MATERIALS OR CONTENTOFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR KANGA OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING THE Kanga PARTIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, THE KANGA PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES AND YOUR DEALING WITH ANY OTHER USERS. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE KANGA PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE(S) USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF THE MATERIALS OR CONTENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE KANGA PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE GAME KANGA PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 16.d(iii) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE KANGA PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
KANGA IS NOT AFFILIATED WITH ANY OTHER USER, CARRIER, SERVICE PROVIDER, OR THIRD-PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY OTHER USER, CARRIER, SERVICE PROVIDER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, YOUR EMPLOYER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE KANGA (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Kanga will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Kanga’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic, or governmental action, in so far as such an event prevents or delays Kanga in fulfilling its obligations hereunder.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will not, in any event, settle any claim or matter without our written consent.
The Services may provide you with access to third-party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third-Party Services”).
Kanga does not have or maintain any control over Third-Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third-Party Services, Kanga does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third-Party Services.
You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third-Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third-Party Services. Kanga disclaims any and all responsibility or liability for any harm resulting from your use of Third-Party Services, and you hereby irrevocably waive any claim against Kanga with respect to the content or operation of any Third-Party Services.
The software you download consists of a package of components, including certain third-party software (“Third-Party Software”) provided under separate license terms (the “Third Party Terms”). Your use of the Third-Party Software in conjunction with the Services in a manner consistent with the terms of these Terms is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in these Terms is intended to impose further restrictions on your use of the Third-Party Software.
The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND KANGA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THESE DISPUTE RESOLUTION TERMS WILL APPLY TO YOU AND KANGA UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 16.i BELOW.
Whether to agree to arbitration is an important business decision. It is your decision to make, and you should not rely solely on the information provided in these Terms as it is not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including, but not limited to, an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.
Despite the provisions of the Section 16.a directly above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) bring an individual action in small claims court; (B) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (C) seek injunctive relief in a court of law; or (D) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Kanga will be governed by the Federal Arbitration Act, and 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 these 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 at 1-800-778-7879, or by contacting Kanga. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail within the applicable statute of limitations period (“Notice”). Kanga’s address for Notice is: 225 E 95th Street Apt 25C, New York, NY 10128. The Notice must: (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Kanga may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Kanga must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Kanga will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Kanga in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
If you commence arbitration in accordance with these Terms, Kanga will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco, California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (A) solely on the basis of documents submitted to the arbitrator; (B) through a non-appearance based telephone hearing; or (C) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. 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 that case, you agree to reimburse Kanga 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 must 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.
YOU AND KANGA 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 (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ. WHICH ARE NOT COVERED BY THIS SECTION 16). Further, unless both you and Kanga 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.
If Kanga makes any future change to this arbitration provision, other than a change to Kanga’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Kanga’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Kanga. If you do not send such written notice, your continued use of the Services following any such change means that you have consented to such change.
If the Section entitled “No Class Actions” is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described directly below will govern any action arising out of or related to these Terms or your use of the Services.
Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Dispute Resolution provision, you may opt out of this Dispute Resolution provision by notifying Kanga in writing of your decision by sending, within 30 days of the date you receive these Terms, an electronic message to firstname.lastname@example.org, stating clearly your full name and intent to opt out of the Dispute Resolution provision. Should you choose not to opt out of this Dispute Resolution provision within the 30-day period, you and Kanga will be bound by the terms of this Dispute Resolution provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution provision.
You should understand that, insofar as permitted by applicable law, nothing in these Terms will in any way limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in any investigation or proceeding (“Protected Activity”) that may be conducted by any federal, state or local government agency or commission (“Government Agencies”). You understand that in connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Kanga. Notwithstanding, in making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Kanga confidential information to any parties other than the Government Agencies.
The laws of the State of New York, excluding its conflicts of law rules, govern these Terms and your use of the Services. Your use of the Services may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in Manhattan County, NY and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
If you provide any feedback to Kanga concerning the functionality and performance of the Services (including identifying potential errors and improvements) (“Feedback”), you hereby grant to Kanga an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to use and exploit such Feedback without payment or restriction.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
These Terms set forth the entire agreement between Kanga and you with respect to the Services. These Terms supersede and govern all previous oral and written communications regarding these matters, all of which are merged into these Terms. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter these Terms. These Terms may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.
If any provision of these Terms is held invalid, illegal, or unenforceable, such provisions will be modified, or if not possible, severed, to reflect the fullest valid, legal, and enforceable expression of the intent of the parties and the remainder of these Terms will not be affected thereby.
Nothing herein will be deemed to create an employer-employee relationship between Kanga and you, nor any agency, joint venture or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
No delay, omission, or failure to exercise any right or remedy provided herein will be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.
Neither these Terms nor any of the rights granted to you herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express prior written permission of Kanga and any attempt to do so will be null and void. However, Kanga may assign or transfer these Terms at any time without your permission.
The provisions of these Terms relating to the rights of Kanga content providers are intended for the benefit of such content providers, and such content providers, as third-party beneficiaries, will be entitled to enforce such provisions in accordance with their terms, irrespective of the fact that they are not signatories to these Terms.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Services.
You acknowledge that these Terms are between you and Kanga only, not with Apple, and Apple is not responsible for the Services or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Services to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (A) product liability claims; (B) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Services or your possession and use of the Services infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Services. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (A) 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 (B) you are not listed on any U.S. Government list of prohibited or restricted parties. If Kanga provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.