Terms Of Use

Kithward Inc. (“KW,” “we,” “us,” or “our”) provides you access to our website, available at www.kithward.com (the “Website”), and the services we provide through the Website (the “Services”), subject to the following terms and conditions of use (the “Terms of Use”), which may be updated by us from time to time without notice to you.  

BY ACCESSING THE WEBSITE AND/OR USING OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS OF USE AND OUR PRIVACY POLICY, LOCATED HERE www.kithward.com/legal/privacy-policy (THE “PRIVACY POLICY”), WHICH IS HEREBY INCORPORATED HEREIN AND MADE A PART HEREOF BY REFERENCE.  THE TERMS OF USE AND THE PRIVACY POLICY ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT.”  IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THE AGREEMENT, THEN YOU ARE NOT AUTHORIZED TO ACCESS THE WEBSITE OR USE THE SERVICES.  

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.  THEY AFFECT YOUR LEGAL RIGHTS.  PLEASE READ THEM.

Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.

1. WEBSITE DESCRIPTION AND COMMUNITY GUIDELINES

KW is a search engine for individuals to search and find communities for life plan, continuing care, independent living, and related services (collectively, “Community Based Living Services” or “CBLS”) that fit their and their family members’ needs.  Individual users of the Website (“Consumers”) will be able to search for CBLS based on a variety of factors, including location, amenities, specializations, and ratings, and book tours or visits to CBLS of their choosing.  

In addition, the Website allows CBLS to view and search all of the content available to Consumers, and to register with KW for access to and use of password-protected areas of the Website, allowing CBLS to claim and manage their business pages on the Website, update business information, post content, and interact with Consumers.  

Our community, like any community, functions best when our users follow a few simple rules.  By accessing the Website, whether you are a CBLS or a Consumer, you agree to comply with these community guidelines (the “Community Guidelines”) and that:  

  • You will not upload, post, e-mail, transmit, or otherwise make available any User Content that:

  • infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
  • is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
  • discloses any sensitive information about a person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information;

  • As a Consumer, any feedback or other related Consumer Content (as defined below) submitted by you will reflect your honest, good-faith, unbiased opinion, and will be based on your personal experience;

  • As a Consumer, you will not accept any compensation (cash, discounts, etc.) from any CBLS in exchange for providing feedback or other related Consumer Content that is (i) favorable to such CBLS (or an affiliate of such CBLS), or (ii) unfavorable to another CBLS;

  • As a CBLS, you not will offer any Consumer compensation, or suggest to any Consumer that you will compensate him or her, for providing feedback or other related Consumer Content that is (i) favorable to your CBLS (or your affiliate), or (ii) unfavorable to another CBLS;

  • You will comply with all applicable laws in your use of the Website and will not use the Website for any unlawful purpose;

  • You will not access or use the Website to collect or publish any market research, except with the written permission of KW;

  • You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;

  • You will not interfere with, or attempt to interrupt the proper operation of, the Website through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Website through hacking, password or data mining, or any other means;

  • You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Website;

  • You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Website;   

  • You will not use any robot, spider, scraper, or other automated means to access the Website for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Website for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials;

  • You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and

  • If you find something that violates our Community Guidelines, please let us know, and we’ll review it.

2. EMAIL ADDRESS AND PASSWORD

Consumers may register for an account with the Website, to gain access to features of the Website that are not available to unregistered visitors, such as the ability to save your favorite CBLS, book tours, and post Consumer Content.  If you choose not to register for an account with the Website, your access will be limited to the search functions and other public features of the Website. As a Consumer, if you wish to register for the Website other than through a third-party login provider (e.g., Facebook and Google), you will be prompted to create an account by providing an e-mail address (“E-mail Address”) and a password (“Password”).  

CBLS that desire to register with the Website in order to claim their business page(s) shall also be required to create an account, which will require an E-Mail Address and a Password.  If you create an account on the Website on behalf of any CBLS, you hereby represent and warrant to KW that you have the authority to act on the CBLS’ behalf.

When creating your account, whether you are a Consumer or a CBLS, you must provide true, accurate, current, and complete information.  Each E-mail Address and corresponding Password can be used by only one user (and, in the case of CBLS, may be used by only one CBLS, but may be accessed by any individual(s) duly authorized by the CBLS to act on its behalf).  You are solely responsible for the confidentiality and use of your E-mail Address and Password, as well as for any use, misuse, or communications entered through the Website using one or more of them. You will promptly inform us of any need to deactivate a Password or E-mail Address.  We reserve the right to delete or change your Password at any time and for any reason and shall have no liability to you for any loss or damage caused by such action.

3. INTELLECTUAL PROPERTY

The Website may contain material such as videos, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of KW (collectively referred to as the “Website Content”).  The Website Content may include information (including text, photos, and videos) about CBLS that are not registered on the Website, but are included in our public CBLS listings in connection with the Services we offer.  The Website Content may be owned by us or third parties. The Website Content is protected under both United States and foreign laws. Unauthorized use of the Website Content may violate copyright, trademark, and other laws.  If you are a CBLS and you notice Website Content that depicts your business, you may claim your business by registering as described above, which will give you control over the CBLS Content (as defined below) associated with your business listing.  Both registered and unregistered CBLS hereby grant KW the right to post Website Content associated with your CBLS business listing, and, with respect to any Website Content depicting, featuring, containing, or otherwise referencing your CBLS (including images and multimedia content of your CBLS) you hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) such Website Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised.

You may view all Website Content for your own personal, non-commercial use.  No other use is permitted without the prior written consent of KW. KW and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Website Content.  You must retain all copyright and other proprietary notices contained in the original Website Content. You may not sell, transfer, assign, license, sublicense, or modify the Website Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Website Content in any way for any public or commercial purpose.  The use or posting of the Website Content on any other website, social media page, or in a networked computer environment for any purpose is expressly prohibited.

If you violate any part of this Agreement, your permission to access the Website Content and use the Services automatically terminates and you must immediately destroy any copies you have made of the Website Content.

The trademarks, service marks, and logos of KW (the “KW Trademarks”) used and displayed on the Website are registered and unregistered trademarks or service marks of KW.  Other company, product, and service names located on the Website may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with KW Trademarks, the “Trademarks”).  Nothing on the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use.  Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of KW Trademarks inures to our benefit.

Elements of the Website are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors.  None of the Website Content may be retransmitted without our express, written consent for each and every instance.

4. USER CONTENT; LICENSES

KW allows registered Consumers and registered CBLS to upload certain content to the Website.  Registered CBLS who claim their business pages shall have the opportunity to post content about  their business and its features, including care facilities, amenities, specialty areas, capabilities, location, contact information, business hours, and photos and videos depicting the CBLS and its offerings (“CBLS Content”).  Registered Consumers may post feedback, comments, photos, and other related content (“Consumer Content”) to the Website.  CBLS Content and Consumer Content are collectively referred to as “User Content” hereunder.

You expressly acknowledge and agree that once you submit User Content for inclusion into the Website, it will be accessible by others, including visitors to the Website, registered Consumers, and registered CBLS, and that there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personally identifying information that you may make available.  YOU, AND NOT KW, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE WEBSITE.

You retain all copyrights and other intellectual property rights in and to your own User Content.  You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised.  You also grant us and our sublicensees the right, but not the obligation, to use your User Content, name, likeness, and photograph in connection with any use of the related User Content permitted by the previous sentence and/or to advertise and promote the Website, KW, and our Services. Without limiting the foregoing, you acknowledge and agree that uses of your User Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such User Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.  Notwithstanding the foregoing, KW will not modify any CBLS Content unless it believes, in its reasonable discretion, that such CBLS Content contains infringing content, is deceptive or false, or otherwise violates this Agreement or any applicable law, rule, or regulation.

If you submit User Content to us, each such submission constitutes a representation and warranty to KW that such User Content is your original creation (or that you otherwise have the right to provide the User Content), that you have the rights necessary to grant the license to the User Content under the prior paragraph (including, without limitation, any personal releases and consents, if necessary), and that it and its use by KW and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.

5. COMMUNICATIONS WITH AND SUBMISSIONS TO US

Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information.  With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like, we shall be free to use any ratings data, ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.

6. NO WARRANTIES; LIMITATION OF LIABILITY

YOU ACKNOWLEDGE THAT ALTHOUGH THE WEBSITE, THE SERVICES, ALL CONTENT ON THE WEBSITE, AND OTHER INFORMATION PROVIDED BY KW CAN BE USED AS AIDS TO YOU TO MAKE INFORMED DECISIONS ABOUT CBLS, THE WEBSITE, THE SERVICES, ALL CONTENT ON THE WEBSITE, AND OTHER INFORMATION PROVIDED BY KW ARE NOT MEANT TO BE SUBSTITUTES YOUR EXERCISE OF YOUR OWN JUDGMENT.  ALL CONTENT ON THE WEBSITE (INCLUDING CBLS CONTENT), AND OTHER INFORMATION PROVIDED BY KW ARE FOR INFORMATIONAL PURPOSES ONLY, ARE NOT SOLICITATIONS TO DO BUSINESS WITH ANY CBLS, AND DO NOT CONSTITUTE KW’S ENDORSEMENT OF ANY CBLS. IF THE WEBSITE RECOMMENDS CBLS TO A CONSUMER BASED ON THE CONSUMER’S PREFERENCES OR SEARCH HISTORY, KW DOES NOT REPRESENT OR WARRANT THAT SUCH CBLS WILL BE SUITABLE FOR SUCH CONSUMER’S NEEDS, OR THAT OTHER CBLS MAY NOT BE SUITABLE FOR SUCH CONSUMER’S NEEDS.  UNDER NO CIRCUMSTANCES SHOULD KW’S SEARCH RESULTS OR RECOMMENDATIONS BE DEEMED AN ENDORSEMENT OF ANY CBLS OR AS STEERING A CONSUMER TO ONE CBLS OVER ANY OTHER CBLS. KW DOES NOT GUARANTEE OR ENDORSE THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY CONTENT ON THE WEBSITE OR OTHER INFORMATION PROVIDED OR DISPLAYED ON THE WEBSITE, OR IN CONNECTION WITH THE SERVICES.

WITHOUT LIMITING THE FOREGOING, ALTHOUGH YOU ARE ABLE TO OBTAIN INFORMATION ABOUT CBLS AND THEIR FACILITIES ON THE WEBSITE, KW ITSELF DOES NOT SELL CBLS, IS NOT A PARTY TO ANY TRANSACTION BETWEEN YOU AND ANY CBLS, AND KW HAS NO CONTROL OVER THE QUALITY OR SUITABILITY OF ANY CBLS.  NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN SOME CASES, WE MAY HAVE AGREEMENTS WITH CBLS THAT ENTITLE KW TO A REFERRAL FEE OR REFERRAL COMMISSION UNDER CERTAIN CIRCUMSTANCES. WE ARE NOT OBLIGATED, UNDER ANY CIRCUMSTANCES, TO INVESTIGATE OR VERIFY ANY DESCRIPTIONS, STATEMENTS, OR REPRESENTATIONS MADE BY THE CBLS OR OTHER THIRD PARTIES FROM WHICH WE OBTAIN INFORMATION FOR THE WEBSITE.  ALL DECISIONS THAT YOU MAKE CONCERNING ANY CBLS ARE AT YOUR OWN RISK.

YOU ACKNOWLEDGE THAT THE WEBSITE MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, THE WEBSITE, ALL CONTENT ON THE WEBSITE (INCLUDING CBLS CONTENT), AND ANY OTHER INFORMATION PROVIDED BY KW ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND KW MAKES NO ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE, THE SERVICES, OR ANY CONTENT ON THE WEBSITE, INCLUDING, WITHOUT LIMITATION ANY LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITE, THE SERVICES, OR ANY CONTENT ON THE WEBSITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) WE SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITE OR THE SERVICES IN EXCESS OF ONE HUNDRED U.S. DOLLARS ($100). NO COMMON-LAW CAUSE OF ACTION ARISING UNDER TORT, CONTRACT, OR WARRANTY RELATED TO THE WEBSITE OR THE SERVICES, OR OTHERWISE ARISING UNDER THIS AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.

SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES; THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.

NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

7. EXTERNAL SITES

The Website may contain links to third-party websites (“External Sites”).  These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites.  The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites.  We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs.  If you decide to access linked External Sites, you do so at your own risk.

8. REPRESENTATIONS; WARRANTIES; AND INDEMNIFICATION  

(a) You hereby represent, warrant, and covenant that:

  • You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User Content and any other works that you incorporate into your User Content, and all the rights necessary to grant the licenses and permissions you grant hereunder;

  • Use of your User Content in the manners contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party; and

  • You shall not submit to the Website any User Content that violates our Community Guidelines set forth above or any other term of this Agreement.  

(b) You agree to defend, indemnify, and hold us and our affiliates and our and their respective officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Website Content or the Website; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right.  We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

9. COMPLIANCE WITH APPLICABLE LAWS

The Website is based in the United States.  We make no claims concerning whether the Website Content may be downloaded, viewed, or be appropriate for use outside of the United States.  If you access the Website or the Website Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

10. TERMINATION OF THE AGREEMENT

We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Website, at any time and for any reason without prior notice or liability.  We reserve the right to change, suspend, or discontinue all or any part of the Website at any time without prior notice or liability. Sections 3-17 shall survive the termination of this Agreement.

11. DIGITAL MILLENNIUM COPYRIGHT ACT

KW respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content (including, without limitation, User Content) deemed to have been posted or distributed in violation of any such laws.

Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:

Amber Ju

Kithward Inc.

85 Fifth Avenue

New York, NY 10003

If you believe that your work has been copied on the Website in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Website where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

12. CONTROLLING LAW

This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.

13. BINDING ARBITRATION

In the event of a dispute arising under or relating to this Agreement, the Website Content, or the Website (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”).  Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION.  ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules.  Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.  The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.  The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 15 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.

14. CLASS ACTION WAIVER

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

15. EQUITABLE RELIEF

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York, Borough of Manhattan for purposes of any such action by us.

16. COMMUNICATIONS DECENCY ACT NOTICE

KW is a provider of “interactive computer services” as defined under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation, libel, product disparagement, and other claims arising out of any User Content is limited as described therein.  We are not responsible for any User Content. We neither warrant the accuracy of the User Content nor exercise any editorial control over User Content, nor do we assume any legal obligation for editorial control of User Content or liability in connection with User Content, including any responsibility or liability for investigating or verifying the accuracy of any User Content.

17. MISCELLANEOUS

Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement.  No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.  The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.

Copyright 2018 Kithward Inc.  All rights reserved.