Terms & Conditions | Kids Crafts & Activities for Children | Kiwi Crate

Terms and Conditions

Kiwi Crate, Inc. ("Company," "we," or "us") provides access to information through our website accessible at the URL http://www.kiwicrate.com/ (the “Site”) and we may provide the ability to use certain functionalities of the Site or provide services of various kinds (the "Services").  The Site and Services are made available to you only under the following terms and conditions (the "Terms"). 

PLEASE READ THE TERMS CAREFULLY.  BY USING THE SITE OR SERVICES, YOU ACKNOWLEDGE AND REPRESENT THAT (i) YOU HAVE READ THESE TERMS, (ii) UNDERSTAND THEM, (iii) AGREE TO BE BOUND BY THEM, AND (iv) YOU ARE LEAST 18 YEARS OLD.  NOTE THAT YOU MAY NOT USE THE SITE OR SERVICES UNLESS YOUR ARE AT LEAST 18 YEARS OLD.  IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, WE ARE UNWILLING TO GRANT YOU ACCESS TO THE SITE OR THE SERVICES.

ACCESS TO OUR ONLINE SERVICES AND TOOLS

A.  Accounts.

In order to use certain features of the Site or Services, you must register for an account with Company (“Account”) and provide certain information about yourself as prompted by the Site registration form.  You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account.  You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security.  Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

B.  Access to Features of Online Services

Subject to these Terms, we grant you a limited, non-exclusive, nontransferable personal license to (a) access and use the Site and Services and (b) download, install and operate any software (in object code form only), scripts and other content that we may from time to time have specifically identified within the Site as available for download ("Downloadable Tools") (if any).  The Downloadable Tools are deemed part of the “Service”.  Your use of any Downloadable Tools may be subject to additional terms and conditions that accompany such Downloadable Tools.

C.  General Restrictions on Use

The rights granted to you by these Terms will remain in force only for so long as these Terms remain in effect.  You may not rent, transfer, assign, commercially exploit, resell or sublicense access to the Service to any third-party. You may use the Site and the Services (including the Downloadable Tools) only for your personal, non-commercial purposes.  You further agree not to combine or integrate the Site and the Services (including the Downloadable Tools) with hardware, software or other technology or materials not provided by us.  You may not modify or create any derivative product based on the Site, the Site and the Services (including the Downloadable Tools).  You may not decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Site and the Services (including the Downloadable Tools) is compiled or interpreted, and nothing in these Terms should be interpreted as granting you any right to obtain or use source code.  Except as expressly stated herein, no part of the Site or Services (including the Downloadable Tools) may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.  Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms. You agree not to use the Site and the Services (including the Downloadable Tools) to: (a) violate any local, state, national or international law; (b) stalk, harass or harm another individual; (c) collect or store personal data about other users; (d) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (e) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services.  Without our written consent, you may not (i) use any high volume, automated, or electronic means to access the Services (including, without limitation, robots, spiders or scripts); or (ii) frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages.  You promise that any information about yourself that you voluntarily provide to us will be true, accurate, complete and current. 

D.  Use of Third-Party Offerings

You may be able to access websites, content, products or services provided by third-parties through links that are made available on the Site.  We refer to all such websites, content, services and products as “Third-Party Offerings.”  For example, we may permit third parties to advertise their products and services on the Site, and those advertisements may contain links to the website(s) of the advertisers.  If you elect to use such Third-Party Offerings, you understand that your use of them will be subject to any terms and conditions required by the applicable third-party provider(s).  You understand that we are not the provider of, and are not responsible for, any such Third-Party Offerings and that these Terms do not themselves grant you any rights to access, use or purchase any Third-Party Offerings.

E.  Ownership

As between you and us, we and/or our vendors and suppliers, as applicable, retain all right, title and interest in and to the Site and the Service (including the Downloadable Tools), and all related intellectual property rights, other than User Content.  Company and its suppliers reserve all rights not granted in these Terms.  Unless you first obtain the copyright owner’s prior written consent, you may not copy, distribute, publicly perform, publicly display, digitally perform (in the case of sound recordings), or create derivative works from any copyrighted work made available or accessible via the Site or the Services.  If you provide Company any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to Company all rights in the Feedback and agree that Company shall have the right to use such Feedback and related information in any manner it deems appropriate.  Company will treat any Feedback you provide to Company as non-confidential and non-proprietary.  You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.

Copyright © 2011, Kiwi Crate, Inc.. All rights reserved.  All trademarks, logos and service marks (“Marks”) displayed on the Site or Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

II. USER CONTENT

A.  User Content.

“User Content” means any and all information and content that a user submits to, or uses with, the Site or Services (e.g., content in the user’s profile, photographs, or other postings).  You are solely responsible for your User Content and assume all risks associated with use of your User Content.  You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below).  You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Company.  Because you alone are responsible for your User Content (and not Company), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy.  Company is not obligated to backup any User Content and User Content may be deleted at anytime.  You are solely responsible for creating backup copies of your User Content if you desire.

B.  License

You hereby grant, and you represent and warrant that you have the right to grant, to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license and authorization to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (including your and/or your child’s name, voice, photograph, and likeness) and to grant sublicenses of the foregoing, for the purposes of including your User Content in the Site, Services, Company’s other products and services, and Company’s marketing materials or endorsements. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.

C.  Acceptable Use Policy.

The following sets forth Company’s “Acceptable Use Policy”:  You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party; (v) that constitutes a computer virus, worm, or any software intended to damage or alter a computer system or data; or (vi) that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise.

D.  Enforcement.

We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your Company Account, and/or reporting you to law enforcement authorities.

E. Other Users.

Each Site or Service user is solely responsible for any and all of its User Content.  Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content.  Your interactions with other Site or Service users are solely between you and such user.  You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions.  If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.

Release.  You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users.  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

III. TERMS AND CONDITIONS OF SALE

A. CERTAIN PRODUCT DISCLAIMERS.

WARNING: CHOKING HAZARD – SMALL PARTS. NOT FOR CHILDREN UNDER 3 YEARS.  YOU ACKNOWLEDGE THAT THE PRODUCTS ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE BY CHILDREN UNDER THE AGE OF THREE (3) AND MAY CONTAIN SMALL PARTS.  IN ADDITION TO ALL OTHER LIMITATIONS AND DISCLAIMERS IN THIS AGREEMENT, COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, IN WHOLE OR IN PART, FOR ANY CLAIMS, LIABILITY, DAMAGES, LOSS OR COSTS ARISING FROM SUCH USE.

B. Products and Pricing.

All products listed on the Site (“Products”), their descriptions, and their prices are each subject to change.  Company reserves the right, at any time, to modify, suspend, or discontinue the sale of any Product with or without notice.  You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of any Product (except as set forth in Section V).  In the event a Product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or Product information received from our suppliers, we shall have the right, prior to the acceptance of your order (as described below), to decline or cancel any such orders, whether or not the order has been confirmed and/or your credit card charged.  If your credit card has already been charged for the order and we cancel your order, we shall immediately issue a credit to your credit card account in the amount of the charge.

C. Orders.

When you make an order, you are making an offer to purchase, and such offer is subject to our acceptance.  Your receipt of an order confirmation from us does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell.  We reserve the right at any time after receipt of your order to accept or decline or cancel your order (in whole or in part) for any reason.  We may require additional verifications or information before accepting any order. Your order is not accepted until we send you shipping information for the order (or the accepted portion thereof). Notwithstanding the foregoing, you agree that, if we cancel all or a part of your order, your sole and exclusive remedy is either that (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion (if your credit card has already been charged for the order) or (b) we will not charge your credit card for the cancelled portion of the order.

D. Payment Terms.

For each Product you order on the Site, you agree to pay the price applicable for the Product as of the time you submitted your order (“Product Price”), the delivery fees for the delivery service you select (“Delivery Fees”), and any applicable Taxes (defined below).  If you order a subscription to a Product that auto-renew periodically (“Subscription”), then you agree to pay the applicable Product Price, Delivery Fees, and Taxes upon each auto-renewal date, until you terminate your Subscription in accordance with the directions on the Site.  Please note that if your Subscription includes a discounted Product Price for a promotional period, once the promotional period expires, your Subscription will renew at the full Product Price.  Company will automatically bill your credit card submitted as part of the order process for such amounts and you hereby authorize us to do so.  You will be solely responsible for payment of all taxes (other than taxes based on Company’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the Product purchase (“Taxes”) not withheld by Company.  All payments are non-refundable (except as expressly set forth in this Section II).  Without limiting other remedies, we reserve the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by law. You agree to pay for all collection costs, attorneys fees, and court costs incurred in the collection of past due amounts.

E. Shipping Policy.

Products will be shipped in accordance with the shipping method you selected when placing the order.  Any delivery dates provided by Company are estimates.  Company reserves the right to make deliveries in installments.  Company will send you an email when your order has shipped and you may review your order and shipping information on your Account.  Currently, we ship to the US only.

F. Return Policy.

(i) Return Policy.  Unless the Product information page states that a Product is a Final Sale, Company will accept returns only for store credit and only in accordance with the Return Procedures below.  If a Product is a Final Sale, then the sale is final and no returns will be accepted.  Provided that Company confirms that your Product was not a Final Sale and was returned in accordance with the Return Procedures below, your sole and exclusive remedy is that we will issue you a store credit in the amount charged for the applicable Product; provided that the credited amount will not include the applicable Delivery Fee, which is nonrefundable.  Store credit may only be used for future purchase of Products on the Site (excluding gift cards) and are not transferable.

(ii) Exchanges.  We do not accept any Product exchanges.

(iii) Damaged Products.  If the Product arrives damaged or not substantially as described on the Product information page (“Damaged Product”), Company will accept returns for a full refund only in accordance with the Return Procedures below.  Provided that Company confirms that your Product was a Damaged Product and was returned in accordance with the Return Procedures below, your sole and exclusive remedy is that (a) we will issue a refund to your credit card in the amount charged for the Damaged Product (if your credit card has already been charged for the Product) or (b) we will not charge your credit card for the Damaged Product.  The refunded amount will include the applicable Delivery Fee.

(iv) Return Procedures.  The following sets forth the required “Return Procedures”:  All returns must be made within 14 days after the Product shipment date.  All returned Products must be unused and returned in accordance with the instructions received from contacting customer service at customercare@kiwicrate.com.  You are solely responsible for the cost of shipping the returned Product.  All Products not returned in accordance with the Return Procedures shall be sent back to you and no credit or refund will be issued. 

G. Promotions.

Please read the official rules that accompany each special offer, coupon, discount, contest and sweepstakes that we may offer or conduct. Special offers, coupons, or discounts cannot be used in conjunction with other offers.  Limit one promotion per order.

IV.  DISCLAIMERS, LIMITATIONS AND EXCLUSIONS OF LIABILITY

A.  Limited Warranties

THE SERVICE, THE SITE (INCLUDING THE DOWNLOADABLE TOOLS), ALL INFORMATION, CONTENT, MATERIALS AND SERVICES RELATED TO THE FOREGOING, AND THE PRODUCTS (EXCEPT AS SET FORTH IN SECTION III. F) ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND OUR AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND ACCURACY OF DATA.  APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. WE AND OUR AFFILIATES DO NOT WARRANT THAT YOUR USE OF THE SITE OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS FREE.  THE SUBMISSION OF ANY USER CONTENT AND THE DOWNLOAD OR UPLOAD OF ANY MATERIAL THROUGH THE OUR SERVICE AND/OR SITE IS DONE AT YOUR OWN DISCRETION AND RISK.  YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL OR FROM RELIANCE UPON THE SITE OR SERVICES, AND YOU ARE ADVISED TO MAINTAIN OFFLINE BACKUP COPIES OF ALL USER CONTENT.  WE ARE NOT THE PROVIDER OF, AND MAKE NO WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY OFFERINGS.  WE DO NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SITE OR SERVICE; AND YOU AGREE TO ASSUME THE SECURITY RISK FOR ANY INFORMATION YOU PROVIDE USING THE SITE OR SERVICE.

NO REPRESENTATION OR WARRANTY IS MADE THAT THE SITE OR SERVICES PROVIDE COMPREHENSIVE OR ACCURATE INFORMATION.  WE RESERVE THE RIGHT TO FILTER, MODIFY OR REMOVE CONTENT, MEDIA, INFORMATION OR ANY OTHER MATERIAL FROM THE SITE OR SERVICES AND FROM THE OUTPUT OF THE SITE OR SERVICES.  YOU UNDERSTAND THAT WE HAVE DEVELOPED OUR TECHNOLOGIES TO FIND INFORMATION THAT WE BELIEVE WILL BE MOST RELEVANT AND INTERESTING TO YOU.  ACCORDINGLY, WE MAY IN OUR DISCRETION FILTER OUT LINKS TO CONTENT AGGREGATORS. SEARCH ENGINES OR OTHER ONLINE SERVICES WHOSE TECHNOLOGIES AND SERVICES, IN OUR OPINION, ARE INCONSISTENT WITH THESE OBJECTIVES.

B.  Limitation Of Liability

USE OF OUR SERVICE, THE SITE (INCLUDING ANY DOWNLOADABLE TOOLS), AND/OR THE PRODUCTS ARE AT YOUR OWN RISK. IN NO EVENT WILL WE OR OUR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES IN CONNECTION WITH THESE TERMS, THE SERVICE, THE SITE, OR THE PRODUCTS, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF WE WERE ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE.  IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS, THE SERVICE, THE SITE, OR THE PRODUCTS EXCEED THE GREATER OF (1) FIFTY DOLLARS (U.S. $50.00) OR (2) THE AMOUNTS YOU HAVE PAID TO COMPANY IN THE PRIOR 6 MONTHS HEREUNDER.

YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN YOU AND US RELATING TO THE PROVISION OF THE SITE, THE SERVICE (INCLUDING ANY DOWNLOADABLE TOOLS), AND THE PRODUCTS TO YOU, AND WE WOULD NOT PROVIDE THE SITE OR SERVICE OR PRODUCTS TO YOU WITHOUT THIS LIMITATION.

C. Exclusions.

THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES AND LIABILITY CONTAINED IN THESE TERMS DO NOT AFFECT OR PREJUDICE THE STATUTORY RIGHTS OF A CONSUMER, I.E., A PERSON ACQUIRING GOODS OTHERWISE THAN IN THE COURSE OF A BUSINESS.  THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES AND REMEDIES CONTAINED IN THESE TERMS SHALL APPLY TO CUSTOMER ONLY TO THE EXTENT SUCH LIMITATIONS OR EXCLUSIONS AND REMEDIES ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE CUSTOMER IS LOCATED.  IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PRODUCT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.  CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.

D.  Indemnification

YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND, AT OUR OPTION, DEFEND OUR COMPANY (INCLUDING OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS AND ANY THIRD-PARTY INFORMATION PROVIDERS) FROM AND AGAINST ALL DAMAGES, CLAIMS, DEMANDS, LIABILITIES, COSTS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING FROM ANY VIOLATION OF THESE TERMS OR APPLICABLE LAW OR YOUR USER CONTENT.

V. TERM AND TERMINATION

These Terms will become effective and binding when you use the Site or Service, when you voluntarily provide any information about yourself to us, or when you indicate your agreement by following any instructions we place on the Site (such as buttons labeled “I Agree”) (which ever occurs first).  We reserve the right to terminate these Terms, your Account, and your access to the Site and the Service at any time without notice.  You may delete your Account at any time, for any reason, by following the instructions on the Site.  If we have suspended or terminated these Terms, your Account, the Site, or the Service other than for your breach of these Terms, we will refund you a pro-rata share of any amounts you have pre-paid for a Subscription to the Service (if any).  You understand that any termination of your Account involves deletion of your User Content associated therewith from our live databases.  Your rights under these Terms will automatically and immediately terminate if you fail to comply with your promises and obligations stated in these Terms.  The provisions of sections I.C, I.D, I. E, II, III.A., IV, VI, and VII will survive the termination of these Terms.

VI. COPYRIGHT POLICY

 Company respects the intellectual property of others and asks that users of our Site and Services do the same.  In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Services who are repeat infringers of intellectual property rights, including copyrights.  If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
  1. your physical or electronic signature;
  2. identification of the copyrighted work(s) that you claim to have been infringed;
  3. identification of the material on our services that you claim is infringing and that you request us to remove;
  4. sufficient information to permit us to locate such material;
  5. your address, telephone number, and e-mail address;
  6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
  7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

The designated Copyright Agent for Company is:

Designated Agent: Sandra Lin

Address of Agent: 140 E Dana St., Mountain View, CA  94041

Email: info at kiwicrate dot com

VII. MISCELLANEOUS MATTERS

A.  Governing Law, Venue and Dispute Resolution.

These Terms shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction.  Any action or proceeding relating to a claim or controversy at law or equity that arises out of or relates to these Terms or the Site or Services (a “claim”) must be brought in a federal or state court located in Santa Clara County and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, unless such claim is submitted to arbitration as set forth below.  Notwithstanding anything to the contrary, Company may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.  You agree that any claim or cause of action related to the Site, the Services (including the Downloadable Tools), the Products and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

If a dispute arises between you and Company, please contact the company first.  For any claim where the total amount of the award sought is less than $10,000 USD, the party requesting relief may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (i) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (ii) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (iii) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (iv) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  All claims filed or brought contrary to this Section shall be considered improperly filed.  Should a party file a claim contrary to this Section, the other party may recover attorneys’ fees and costs up to $1,000, provided that other party has notified the filing party in writing of the improperly filed claim, and the filing party fails to promptly withdraw the claim.  The remedies in this subsection will not limit any other remedies that either party may have in law or in equity.

B.  Modifications to Terms

We may change these Terms from time to time.  Any such changes will become effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site.  These changes will be effective immediately for new users of our Site or Services.  If you object to any such changes, your sole recourse will be to cease using the Site and the Services (including the Downloadable Tools).  Continued use of the Site or the Services (including any Downloadable Tools) following posting of any such changes will indicate your acknowledgement of such changes and your agreement to be bound by the revised Terms, inclusive of such changes.  In addition, certain features of the Services may be subject to additional terms of use.  By using such features, or any part thereof, you agree to be bound by the additional terms of use applicable to such features.  In the event that any of the additional terms of use governing such area conflict with these Terms, the additional terms will govern.

C.  Modifications to Services.

We reserve the right to modify the Site and/or Services at any time without notice.  If you object to any changes to the Site or Services, your sole recourse will be to cease using the Site and Service, terminate your Subscription for a pro-rata refund of any amounts you have pre-paid for the Subscription (if any), or not renew the Subscription (if applicable).  Continued use of the Site or Services following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Services as so modified.  We also reserve the right to discontinue the Site and/or Services at any time without notice.  We will not be liable to you or any third-party should we exercise our right to modify or discontinue the Site or the Services, except and if otherwise expressly set forth in Section V.

D.  General Terms

You agree to comply with all laws, rules and regulations that apply to your use of the Site, the Services (including the Downloadable Tools) and the Products.  Any delay or failure by us to exercise or enforce any right or provision of these terms will not constitute a waiver of such right or provision. If any provision of these terms is found by a court of competent jurisdiction to be invalid, you agree that the court should endeavor to give effect to the intentions reflected in the invalid provision, and the other provisions of these Terms shall remain in full force and effect.  The section titles in these Terms are for convenience only and have no legal or contractual effect. The word including means including without limitation.  These Terms constitute the entire agreement between you and us with regard to the matters described above.  These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

Contact Information: info at kiwicrate dot com / (650) 967-4311