Kiwi Learn Inc. Terms of Service
Last modified: August 20, 2020
Welcome and thank you for your interest in the Kiwi Learn Inc. website (the “Website”) and the educational services and content made available on the Website by Kiwi Learn Inc. (“Kiwi Learn Inc.” or “We”). These Terms of Service contain the terms and conditions that govern all use of the Website and all content, services and/or products available on or through the Website (collectively, the “Kiwi Learn Inc. Services”). The Kiwi Learn Inc. Services are offered to you subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Kiwi Learn Inc.’s Privacy Policy , Guidelines (as defined below), any future modifications, and procedures that may be published from time to time on the Website or otherwise made available to you on or through Kiwi Learn Inc. Services (collectively, the “Terms”). When accepted by you, the Terms form a legally binding contract between you and Kiwi Learn Inc.. If you are entering into the Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.
Visitors of the Website and users of Kiwi Learn Inc. Services are referred to herein individually as “User” and collectively as “Users”.
PLEASE READ THE TERMS CAREFULLY. BY LOGGING INTO, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE Kiwi Learn Inc. SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, THEN PLEASE DO NOT LOG INTO, ACCESS, BROWSE OR OTHERWISE USE THE Kiwi Learn Inc. SERVICES.
1. Description of Kiwi Learn Inc. Services.The Kiwi Learn Inc. Services enable students, parents and schools (collectively, “Students”) to connect with individual instructors (“Instructors”) providing educational services on an independent contractor basis. For example, Instructors may provide live and recorded video lectures, instructions, tutoring and learning services to the Students through the Kiwi Learn Inc. Services. The Kiwi Learn Inc. Services are provided through our unique platform where students receive instructions via the Kiwi Learn Inc. Services and then work on assignments and projects in a structured classroom. The Kiwi Learn Inc. Service also allows instructors to create an online academy with custom branding, custom URL, and other customizable features.
2. Eligibility; Use of Kiwi Learn Inc. Services.
2.1 ELIGIBILITY. Kiwi Learn Inc. SERVICES ARE AVAILABLE ONLY TO USERS WHO ARE AT LEAST THE LEGAL AGE OF MAJORITY IN THE JURIDICTION IN WHICH THEY ARE LOCATED. Kiwi Learn Inc. SERVICES ARE NOT AVAILABLE TO ANY USERS SUSPENDED OR REMOVED FROM THE WEBSITE OR Kiwi Learn Inc. SERVICES BY Kiwi Learn Inc.. BY USING Kiwi Learn Inc. SERVICES, YOU REPRESENT THAT YOU ARE ABLE TO LEGALLY CONTRACT IN THE JURISDICTION IN WHICH YOU ARE LOCATED, AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE WEBSITE OR Kiwi Learn Inc. SERVICES.
2.2 Minors. You may access and use Kiwi Learn Inc. Services on behalf of a minor under the age of 18 or permit such minor to access and use the Kiwi Learn Inc. Services with your consent or under your supervision, provided that you are a parent or legal guardian of such minor and all User Submissions (as defined below) submitted or posted to Kiwi Learn Inc. Services are entered by you, or by such minor with your consent or under your supervision. If you allow a minor to access or use Kiwi Learn Inc. Services with your consent in this manner, you remain responsible for ensuring the accuracy and lawfulness of any such User Submissions and otherwise complying with all of the terms and conditions contained herein.
2.3 Use of Kiwi Learn Inc. Services. Subject to your agreement and compliance with these Terms, Kiwi Learn Inc. grants you permission to use Kiwi Learn Inc. Services as set forth in these Terms and consistent with the intended features of Kiwi Learn Inc. Services.
3. Privacy. Kiwi Learn Inc. takes the privacy of its Users very seriously. Kiwi Learn Inc.’s Privacy Policy is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully for information relating to Kiwi Learn Inc.’s collection, use, and disclosure of your personal information.
4. Additional Terms. When using Kiwi Learn Inc. Services, you will be subject to any additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Website or otherwise made available to you on or through Kiwi Learn Inc. Services (the “Guidelines”). All such Guidelines are hereby incorporated by reference into these Terms.
5. Modification of the Terms.Kiwi Learn Inc. reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes from time to time on the Website or otherwise making them available to you on or through Kiwi Learn Inc. Services. Please check these Terms and any Guidelines periodically for changes. Your continued use of Kiwi Learn Inc. Services after such changes have been published on or through Kiwi Learn Inc. Services constitutes your binding acceptance of such changes. For any material modifications to the Terms or in the event that such modifications materially alter your rights or obligations hereunder, such amended Terms will automatically be effective upon the earlier of (i) your continued use of Kiwi Learn Inc. Services with actual knowledge of such modifications, or (ii) 30 days from publication of such modified Terms on or through Kiwi Learn Inc. Services. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Kiwi Learn Inc. will be governed by the Terms in effect at the time such dispute arose.
6. Registration; Account and Password.
6.1 Registration for an Account. In order to access certain features of Kiwi Learn Inc. Services, you will have to create an account and become a registered user of Kiwi Learn Inc. Services. If you create an account for Kiwi Learn Inc. Services, you agree that any information you provide to Kiwi Learn Inc. on registration for an account and at all other times will be true, accurate, current, and complete. Since the provision of certain features of Kiwi Learn Inc. Services may depend on the continued accuracy of your account information, you also agree that you will ensure that this information is kept accurate and up-to-date at all times your account remains open. In order to access or use Kiwi Learn Inc. Services, you will have to sign in by entering your account and password information. As you will be responsible for all activities that occur under your account, you should keep your password confidential. 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. You also agree to immediately notify Kiwi Learn Inc. of any unauthorized uses of your account or if you believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password). You may be liable for any losses incurred by Kiwi Learn Inc. or others due to any unauthorized use of your account.
6.2 Registration Through Authentication Services. Kiwi Learn Inc. may, now or in the future, permit you to register for an account for, or sign in to, the Kiwi Learn Inc. Services by providing some or all of the required account information through certain third party social networking and/or authentication services, such as Facebook Connect and Google OpenID (“Authentication Service”). By registering for an account or signing in by providing any account information through an Authentication Service, you agree that Kiwi Learn Inc. may access and use any account information from the Authentication Service that you have configured to be made available to third parties in this manner, and you agree to the terms of use of the Authentication Service regarding your use of the Kiwi Learn Inc. Services via the Authentication Service. You further agree that any Authentication Service is a Linked Site (as defined below) and you are solely responsible for your interactions with the Authentication Service as a result of accessing the Kiwi Learn Inc. Services through the Authentication Service.
7. Ownership of the Website. The Website is solely and exclusively owned and operated by Kiwi Learn Inc.. The visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Website (collectively, the “Kiwi Learn Inc. Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Submissions (as defined below) or other content owned and/or posted by Users, all Kiwi Learn Inc. Materials are the copyrighted property of Kiwi Learn Inc., its affiliates and/or third party licensors. Furthermore, all trademarks, service marks, and trade names contained in the Kiwi Learn Inc. Materials are proprietary to Kiwi Learn Inc., its affiliates and/or third-party licensors. Your use of Kiwi Learn Inc. Services does not grant to you ownership of any content, code, data or any part of the Kiwi Learn Inc. Materials you may access on or through the Website.Any commercial or promotional distribution, publishing or exploitation of the Kiwi Learn Inc. Materials is strictly prohibited unless you have received the express prior written permission from Kiwi Learn Inc. or the otherwise applicable rights holder. Kiwi Learn Inc. reserves all rights to the Kiwi Learn Inc. Materials not expressly granted in the Terms.
8. Content Rights. The content available on the Website or otherwise through Kiwi Learn Inc. Services is intended for personal, non-commercial use. All such content, including, without limitation, informational materials, documents, forms, pictures, images, audiovisual works, and any user comments (collectively, the “Content”), is owned or controlled by Kiwi Learn Inc., its affiliates or its licensors, and is protected by copyright and other intellectual property laws. Subject to the foregoing, Kiwi Learn Inc. authorizes you to download a single copy of any part of the Content that Kiwi Learn Inc. or its licensors have expressly made available for download on the Website solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Website or Kiwi Learn Inc. Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through Kiwi Learn Inc. Services or as otherwise permitted by applicable law.
9. Prohibited Conduct. You agree that you are responsible for your own conduct while using Kiwi Learn Inc. Services and for any consequences thereof. You agree to use Kiwi Learn Inc. Services only for purposes that are legal, proper and in accordance with these Terms and any applicable laws or regulations. By way of example, and not as a limitation, you agree that when using Kiwi Learn Inc. Services, you will not:
defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
upload, post, email or transmit or otherwise make available through Kiwi Learn Inc. Services any inappropriate, defamatory, infringing, obscene, or unlawful content;
promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual;
upload, post, email or transmit or otherwise make available through Kiwi Learn Inc. Services any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of such rights or have the permission of the owner to post such content;
download any file posted by another that you know, or reasonably should know, that cannot be legally distributed in such manner;
impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of copyrightable material;
remove any copyright, trademark or other proprietary rights notices contained in or on Kiwi Learn Inc. Services;
submit content that falsely expresses or implies that such content is sponsored or endorsed by Kiwi Learn Inc.;
improperly restrict or inhibit any other user from using and enjoying Kiwi Learn Inc. Services;
use Kiwi Learn Inc. Services for any illegal or unauthorized purpose;
interfere with or disrupt Kiwi Learn Inc. Services or servers or networks connected to Kiwi Learn Inc. Services, or disobey any requirements, procedures, policies or regulations of networks connected to Kiwi Learn Inc. Services;
use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of Kiwi Learn Inc. Services or collect information about its Users for any unauthorized purpose; or
transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.
10. Fees; Payment.
10.1 Fees. Kiwi Learn Inc. may, now or in the future, charge service fees for the use of Kiwi Learn Inc. Services or certain content or services provided thereon. Kiwi Learn Inc. may also deduct a transaction fee from the amounts paid by a User for access and use of your instructional content and/or services provided through the Website. You agree to pay to Kiwi Learn Inc. all fees (including any applicable taxes) for content or services purchased on or through Kiwi Learn Inc. Services under your account at the then-current rates described on the Website at: [link to service rates]. Service and/or transaction fees will be billed at the time you purchase the services. Unless otherwise communicated to you by Kiwi Learn Inc. in writing, all fees and charges are nonrefundable. Kiwi Learn Inc. may change the fees for the use of Kiwi Learn Inc. Services, or any content, service or features provided thereon, or add new fees or charges, at any time. For any change in fees for ongoing services purchased under your account, Kiwi Learn Inc. will send you a notice of such change in advance of providing you with such services (via a message on or through the Website or email).
10.2 Payment. Kiwi Learn Inc. will bill charges through the payment method specified in your account (e.g. a credit card or electronic funds transfer). If you pay any applicable fees with a credit card, Kiwi Learn Inc. may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You authorize such credit card account to pay any amounts described herein, and authorize Kiwi Learn Inc. to charge all sums described herein to such credit card account. You agree to provide Kiwi Learn Inc. updated information regarding your credit card and account upon Kiwi Learn Inc.’s request and any time the information earlier provided is no longer valid. For any amounts payable by Kiwi Learn Inc. to you (such as the amounts paid by a User for access and use of your instructional content after deduction by Kiwi Learn Inc. of its transaction fee), Kiwi Learn Inc. will pay such amounts to you through the payment method specified in your account.
11. User Submissions.
11.1 Generally. Kiwi Learn Inc. Services may allow you and other Users to submit, post, transmit, and share content with other Users, which may include, without limitation, informational materials, documents, forms, pictures, images, audiovisual works, and any user comments submitted by you and other Users on or through Kiwi Learn Inc. Services (collectively, “User Submissions”). User Submissions are provided to Users or displayed on or through the Website for informational purposes only and their content is not otherwise controlled or endorsed by Kiwi Learn Inc.. Kiwi Learn Inc. does not guarantee any accuracy or confidentiality with respect to any information contained in any User Submission, and strongly recommends that you think carefully about what you transmit, submit or post to or through Kiwi Learn Inc. Services. You understand that all information contained in User Submissions is the sole responsibility of the person from whom such User Submissions originated. This means that you, and not Kiwi Learn Inc., are entirely responsible for all User Submissions that you upload, post, transmit, or otherwise make available through Kiwi Learn Inc. Services, as well as for any actions taken by Kiwi Learn Inc. or other Users as a result of such User Submissions.
11.2 Right to Remove or Edit User Submissions. Kiwi Learn Inc. makes no representations that it will publish or make any User Submission available on or through Kiwi Learn Inc. Services, and reserves the right (but has no obligation), in its sole discretion, to refuse to allow any User Submission on the Website, or to edit or remove any User Submission at any time with or without notice. Without limiting the generality of the preceding sentence, Kiwi Learn Inc. complies with the Digital Millennium Copyright Act, and will remove User Submissions from the Website upon receipt of a compliant takedown notice (see Section 20 below).
11.3 License Grant by You to Kiwi Learn Inc.. You retain all your ownership rights in your User Submissions, whether posted and/or uploaded by you or made available on or through Kiwi Learn Inc. Services by Kiwi Learn Inc.. By submitting your User Submissions to Kiwi Learn Inc. through Kiwi Learn Inc. Services, you hereby grant Kiwi Learn Inc. and its affiliates, sublicensees, partners, designees, and assignees of Kiwi Learn Inc. Services (collectively, the “Kiwi Learn Inc. Licensees”) a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit your User Submissions and derivatives thereof for any purpose whatsoever in connection with Kiwi Learn Inc. Services and Kiwi Learn Inc.’s (and its successors’) business, including, without limitation, for providing you with the services you have chosen consistent with the intended features of Kiwi Learn Inc. Services, for provision to all Users of certain services, features and/or contests available on or through Kiwi Learn Inc. Services, and for marketing, promoting, and/or redistributing part or all of Kiwi Learn Inc. Services (and derivative works thereof) in any media formats and through any websites, social media networks or media channels now known or hereafter discovered or developed.
11.4 Limited License Grant to Other Users. By submitting or distributing your User Submissions through Kiwi Learn Inc. Services, you hereby grant to other Users a non-exclusive license to access or otherwise use your User Submissions for personal, non-commercial use. The foregoing license granted by you terminates as to a specific User Submission once you remove or delete such User Submission from the Website, provided, however, that other Users’ rights to such User Submission arising out of distributions occurring on or prior to deletion of such User Submission from the Website survive any termination or expiration of the license granted in this Section 11.4.
11.5 User Submissions Representations and Warranties. You are solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you either own your User Submissions or have the necessary licenses, rights, consents, and permissions to use and authorize Kiwi Learn Inc. to display or otherwise use your User Submissions under all patent, trademark, copyright, or other proprietary rights in and to your User Submissions in a manner consistent with the intended features of Kiwi Learn Inc. Services and these Terms, and to grant the rights and license set forth in Section 11.3, and (ii) your User Submissions, Kiwi Learn Inc.’s or any Kiwi Learn Inc. Licensee’s use of such User Submissions pursuant to these Terms, and Kiwi Learn Inc.’s or any of Kiwi Learn Inc. Licensee’s exercise of the license rights set forth in Section 11.3, do not and will not: (a) infringe, violate, or misappropriate 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; (b) violate any applicable law or regulation; or (c) require obtaining a license from or paying any fees and/or royalties by Kiwi Learn Inc. to any third party for the performance of any services you have chosen to be performed by Kiwi Learn Inc. or for the exercise of any rights granted in these Terms, unless you and Kiwi Learn Inc. otherwise agree.
11.6 Inaccurate or Offensive User Submissions. You understand that when using the Website, you may be exposed to User Submissions from a variety of sources and that Kiwi Learn Inc. does not endorse and is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such User Submissions. You understand that Kiwi Learn Inc. cannot, and does not, review all User Submissions and does not endorse any User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, misleading, offensive, indecent, or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Kiwi Learn Inc. with respect thereto. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “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.”
11.7 Feedback. If you provide Kiwi Learn Inc. with any comments, bug reports, feedback, or modifications proposed or suggested by you for Kiwi Learn Inc. Services (“Feedback”), Kiwi Learn Inc. shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into Kiwi Learn Inc. Services. You hereby grant Kiwi Learn Inc. a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
12. Termination.
12.1 By Kiwi Learn Inc.. You agree that Kiwi Learn Inc., in its sole discretion and for any or no reason, may terminate these Terms, any account you may have with Kiwi Learn Inc. or your use of Kiwi Learn Inc. Services, and remove and discard all or any part of any User Submissions uploaded by you, at any time. Kiwi Learn Inc., in its sole discretion and at any time, may also discontinue providing access to Kiwi Learn Inc. Services, or any part thereof, with or without notice. You agree that any termination of these Terms, your access to Kiwi Learn Inc. Services or any account you may have may be effected without prior notice, and you agree that Kiwi Learn Inc. will not be liable to you or any third party for any such termination except as described in these Terms. Kiwi Learn Inc. does not permit any fraudulent or illegal activities on or through Kiwi Learn Inc. Services and reserves the right to terminate access to Kiwi Learn Inc. Services and remove all content submitted by any persons who are found to be engaging in illegal activities. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Kiwi Learn Inc. Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Kiwi Learn Inc. may have at law or in equity.
12.2 By you. You may terminate your account, these Terms and your right to use Kiwi Learn Inc. Services at any time and for any reason or no reason, by contacting Kiwi Learn Inc. customer service at support@Kiwi Learn Inc..com or by deleting your account and discontinuing your use of Kiwi Learn Inc. Services. If you terminate these Terms or your account, you will remain obligated to pay all outstanding charges, if any, relating to your use of Kiwi Learn Inc. Services incurred before termination.
12.3 Loss of Your Information on Termination. Upon any termination or expiration of these Terms, whether by you or Kiwi Learn Inc., ANY INFORMATION (INCLUDING USER SUBMISSIONS) THAT YOU HAVE SUBMITTED ON THE WEBSITE OR OTHERWISE THROUGH Kiwi Learn Inc. SERVICES OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU and Kiwi Learn Inc. will have no obligation to maintain any such information in its databases or to forward any such information to you or any third party.
12.4 Survival. Upon termination or expiration of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections7, 8, and 10 through 22.
13. Third-Party Sites, Products and Services. Kiwi Learn Inc. Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Users. Kiwi Learn Inc. does not endorse any such Linked Sites or the information, content material, products, or services contained on or accessible through Linked Sites. Furthermore, Kiwi Learn Inc. makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
14. User Interactions and Disagreements.
14.1 User Interactions. The Kiwi Learn Inc. Services allow you to correspond or otherwise interact with other Users. You acknowledge that such other Users are not affiliated with or controlled by Kiwi Learn Inc. or its affiliates, and Kiwi Learn Inc. cannot influence the instruction, information, content, materials or services provided by them. Your correspondence or interaction with other Users is solely between you and such other Users. Kiwi Learn Inc.’s sole function is as a marketplace and facilitator of transactions related to educational materials between interested parties who enter into such transactions on their own terms. YOU AGREE THAT Kiwi Learn Inc. AND ITS AFFILIATES WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS BETWEEN YOU AND OTHER USERS.
14.2 User Disagreements. You alone are responsible for your involvement and interactions with other Users. Kiwi Learn Inc. reserves the right, but has no obligation, to monitor disagreements between you and other Users. If you have a dispute with one or more Users, you irrevocably and forever release Kiwi Learn Inc. (and Kiwi Learn Inc.’s affiliates, officers, directors, agents, subsidiaries, joint ventures and employees) from 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. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “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.”
15. Disclaimers; No Warranties.
15.1 UNLESS OTHERWISE EXPRESSLY STATED BY Kiwi Learn Inc., Kiwi Learn Inc. SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH Kiwi Learn Inc. SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Kiwi Learn Inc. AND ITS AFFILLIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. UNLESS OTHERWISE EXPRESSLY STATED BY Kiwi Learn Inc., Kiwi Learn Inc. AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE, Kiwi Learn Inc. SERVICES, OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
15.2 UNLESS OTHERWISE EXPRESSLY STATED BY Kiwi Learn Inc., Kiwi Learn Inc. AND ITS AFFILIATES DO NOT WARRANT THAT Kiwi Learn Inc. SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH Kiwi Learn Inc. SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT Kiwi Learn Inc. SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH Kiwi Learn Inc. SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
15.3 CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
16. Indemnification. You agree to indemnify and hold harmless Kiwi Learn Inc. and its affiliates from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of Kiwi Learn Inc. Services, representations made to Kiwi Learn Inc., its Users, and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Kiwi Learn Inc. reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Kiwi Learn Inc., and you agree to cooperate with such defense of these claims.
17. Limitation of Liability and Damages.
17.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL Kiwi Learn Inc. OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THE USE OF Kiwi Learn Inc. SERVICES, INCLUDING THOSE THAT RESULT FROM THE USE OR THE INABILITY TO USE Kiwi Learn Inc. SERVICES OR ANY LINKED SITES, THE CONTENT, OR ANY OTHER INTERACTIONS WITH Kiwi Learn Inc., EVEN IF Kiwi Learn Inc. OR A Kiwi Learn Inc. 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, Kiwi Learn Inc. LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
17.2 Limitation of Damages. IN NO EVENT WILL Kiwi Learn Inc.’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’ OR SUPPLIERS’ LIABILITY TO YOU FOR DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF Kiwi Learn Inc. SERVICES OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ANY ACCESS TO OR USE OF Kiwi Learn Inc. SERVICES OR ANY PART THEREOF, OR FIFTY DOLLARS, WHICHEVER IS GREATER.
17.3 Linked Sites. THESE LIMITATIONS OF LIABILITY AND DAMAGES ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY CONTENT, PRODUCTS OR SERVICES SOLD OR PROVIDED on any LINKED sites or otherwise BY THIRD PARTIES OTHER THAN Kiwi Learn Inc. AND RECEIVED THROUGH THE WEBSITE OR RECEIVED THROUGH ANY LINKED sites.
17.4 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT Kiwi Learn Inc. 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 Kiwi Learn Inc., AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Kiwi Learn Inc.. Kiwi Learn Inc. would not be able to provide the Kiwi Learn Inc. SERVICES to You on an economically reasonable basis without these limitations.
18. Notice. Except as explicitly stated otherwise, legal notices will be served, with respect to Kiwi Learn Inc. and Kiwi Learn Inc. Services, to info@startkiwi.com and, with respect to you, to the email address you provide to Kiwi Learn Inc. during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Kiwi Learn Inc. may give you legal notice by mail to the postal mailing address provided during the registration process, if any, or if no such mailing address was provided during the registration process, by posting on the Website. In such case, notice will be deemed given three days after the date of mailing or posting, as applicable. You agree that all notices and other communications that Kiwi Learn Inc. provides to you electronically satisfies any legal requirement that such notice or communication be in writing.
19. Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of these Terms will in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of these Terms will not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms.
20. Digital Millennium Copyright Act Compliance. If you are a copyright owner or an agent thereof, and you believe that any content hosted on Kiwi Learn Inc. Services infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Kiwi Learn Inc.’s Designated Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on Kiwi Learn Inc. Services are covered by a single notification, a representative list of such works at Kiwi Learn Inc. Services;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Kiwi Learn Inc. to locate the material;
(iv) Information reasonably sufficient to permit Kiwi Learn Inc. to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Kiwi Learn Inc.’s Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Copyright Agent
Kiwi Learn Inc.
13790 Bridgewater Crossings Blvd #1080
Windermere, FL 34786
or by email at info@startkiwi.com
For the avoidance of doubt, only DMCA notices should go to Kiwi Learn Inc.’s Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Kiwi Learn Inc. customer service through info@startkiwi.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
21. Dispute Resolution
21.1 Generally. In the interest of resolving any disputes that arise between you and Kiwi Learn Inc. in the most expedient and cost effective manner, you and Kiwi Learn Inc. agree that any and all disputes arising in connection with the Terms or your use of Kiwi Learn Inc. Services or any part thereof 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. This agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of the Terms or Kiwi Learn Inc. Services, 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 your account for Kiwi Learn Inc. Services. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT TO ARBITRATE, YOU AND Kiwi Learn Inc. ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
21.2 Exceptions. Notwithstanding the contents of Section 21.1 above, you and Kiwi Learn Inc. agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s 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.
21.3 Arbitrator. Any arbitration between you and Kiwi Learn Inc. 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 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 Kiwi Learn Inc..
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 Kiwi Learn Inc. do not have a physical address on file for you, by electronic mail (“Notice”). Kiwi Learn Inc. address for Notice is:
Copyright Agent
Kiwi Learn Inc.
13790 Bridgewater Crossings Blvd #1080
Windermere, FL 34786
21.4 The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). You and Kiwi Learn Inc. agree to use good faith efforts to resolve the claim directly, but if no such resolution is reached within 30 days after the Notice is received, you or Kiwi Learn Inc. may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Kiwi Learn Inc. shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if the dispute is finally resolved through arbitration in your favor, Kiwi Learn Inc. shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Kiwi Learn Inc. in settlement of the dispute prior to the arbitrator’s award.
21.5 Fees. In the event that you commence arbitration in accordance with these Terms, Kiwi Learn Inc. will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in King County, Washington, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based 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 Kiwi Learn Inc. 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 preceding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
21.6 No Class Actions. YOU AND Kiwi Learn Inc. 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 Kiwi Learn Inc. 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.
21.7 Modifications. In the event that Kiwi Learn Inc. makes any future change to this arbitration provision (other than a change to the Kiwi Learn Inc.Kiwi Learn Inc. address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Kiwi Learn Inc. address for Notice, in which case your account with Kiwi Learn Inc. shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
21.8 Enforceability. If either Section 21.6 or the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 22.1 below, shall govern any action arising out of or related to the Terms or your use of the Website and/or Kiwi Learn Inc. Services or any part thereof.
22. Miscellaneous.
22.1 Choice of Law; Forum. These Terms shall be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Except as specified in Section 21, any action arising out of or in connection with these Terms will be heard in the federal, state, or local courts in King County, Washington, and you and YWCA SKS hereby irrevocably consent to the exclusive jurisdiction and venue of these courts.
22.2 Severability. If any provision of the Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from the Terms and will not affect the validity and enforceability of any remaining provisions.
22.3 Assignment. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by Kiwi Learn Inc. without restriction. Any assignment attempted to be made in violation of these Terms will be void.
22.4 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
22.5 Entire Agreement. This is the entire agreement between you and Kiwi Learn Inc. relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Guidelines made by Kiwi Learn Inc. as set forth in Section 5 above.
22.6 Claims. YOU AND Kiwi Learn Inc. AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR Kiwi Learn Inc. SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Disclosures. The services hereunder are offered by Kiwi Learn Inc. located at
Kiwi Learn Inc.
13790 Bridgewater Crossings Blvd #1080
Windermere, FL 34786
and via email at: info@startkiwi.com .
