Terms of service.
KENDAL TERMS OF SERVICE
Welcome to Kendal! These Terms of Service (“Terms”) are provided by Crowdpad, Inc. and our affiliates (referred to as “we”, “us”, “our” and “Kendal”) and govern your use of kendal.ai (“Site”) and app.kendal.ai (“App” and together with Site, the “Products”) and apply to your use of the Products and digital assets and templates (collectively “Assets”), software platform and applications and other services offered through the Products (collectively the “Services”) and any assets, content or material you generate through the Products and Services. Throughout these Terms, we will refer to you as “you”, “your” and “user”.
By using the Products and Services, you agree to these Terms. These Terms may be updated from time. Continued use of the Services constitutes acceptance of the updated terms. If you do not agree to these Terms, please stop using the Products and the Services.
NOTICE: THESE TERMS CONTAIN AN ARBITRATION PROVISION UNDER WHICH YOU ARE OBLIGATED TO LITIGATE CLAIMS IN A PRIVATE ARBITRATION RATHER THAN IN COURT, UNLESS YOU OPT OUT AS SPECIFIED IN SECTION 18. YOU FURTHER WAIVE THE RIGHT TO A TRIAL BY JURY AND TO BRINGING ANY CLAIMS IN A REPRESENTATIVE ACTION OR AS A CLASS ACTION.
Description of Services
Our Services allow you to generate communications, postings, information, designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials, including your trademarks, branding and other content (collectively, “User Content”), including for advertising and marketing your products and services and posting on third party applications and social media sites and services (collectively, “Third Party Social Services”). You are solely responsible for the User Content that you post on or through the Services and on Third Party Social Services, including its legality, reliability, and appropriateness.
Services Availability and Quality
We are constantly improving the Services to make them better. The Services are subject to modification and change, including but not limited to the art style of Assets, the algorithms used to generate the Assets, and features available to users. No guarantees are made with respect to the Services’ quality, stability, uptime or reliability. Please do not create any dependencies on any attributes of the Services or the Assets. We will not be liable to you or your downstream customers for any harm caused by your dependency on the Assets or Services.
As noted further in Section 14 below, both the Services and the Assets are provided to you on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Assets and assume any risks associated with use of the Products and Services.
Kendal reserves the right to suspend or ban your access to the Services at any time, and for any reason, with or without notice and with or without cause. You may not use the Services for competitive research or develop competitive products and services to our Services. You may not decompile, reverse engineer or attempt to discover the source code for the Services or the Assets. You may not use automated tools to access, interact with, or generate Assets through the Services .
We reserve the right to investigate complaints or reported violations of our Terms and to take any action we deem appropriate to protect our Products and Services including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information.
Modifications to the Services and Terms
Our Services may evolve and change over time. For this reason, we may from time to time modify, amend or vary these Terms (collectively, “Modifications”). Please check these Terms regularly to ensure you are aware of any Modifications made by us. If you continue to use the Products, Assets and Services after such Modifications are posted, you are deemed to have accepted such Modifications. If you do not agree to such Modifications, you should discontinue use of the Services.
You understand and agree that we may change or discontinue the Services, or change or remove functionality of the Services, any time at our sole discretion. If you do not agree to such changes, your sole remedy is to cease use of the Services.
Additional Rules
Certain portions, features, or functionalities of the Services may be subject to different or additional terms, rules, guidelines or policies (“Additional Rules”), and we may provide such Additional Rules to you via postings, pop-up notices, links, or other means at the time that you access or use the relevant area, feature or functionality. From time to time, such Additional Rules may conflict with these Terms; in the event of such a conflict, the Additional Rules will control.
Eligibility
You must be at least 16 years old to use the Services (or the minimum legal age in your country to use it). You must also have the authority to act on behalf of any business represented on your account. You affirm that (a) you are not a resident of (or will use the Products or Services in) a country that the U.S. government has embargoed for use of the Services, nor are you named on the U.S. Treasury Department's list of Specially Designated Nationals or any other applicable trade sanctioning regulations, and (b) you are fully able and competent, or have the consent of your parent or legal guardian, to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.
You agree to provide complete and accurate information when registering to use our Products and Services and to keep that information updated. You are responsible for maintaining the confidentiality of your username and password (“User Credentials”) and for notifying us immediately of any loss or unauthorized use of your User Credentials. You are responsible for all activities on your account whether authorized or not. Only one user may use the Services per registered account. Each user of the Services may only have one account.
You represent that:
you own all rights in and to any User Content or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such User Content to use in connection with the Services;
you will fully comply with all applicable laws and agreements which govern your use of the User Content and the Services; and
you will not use the Services in violation of any law or for any fraudulent or illegal activity.
Legal and Other Compliance
You shall ensure that your User Content and use of the Services complies with all relevant laws and regulations in any jurisdiction of the world. This may include regulations about data protection, marketing, advertising, and commercial messages. You agree to provide all notices, obtain all consents and honor all opt out requests relating to any communications or messaging made through the Services.
The Services may allow you to post communications or send messages and User Content to others through Third Party Social Services. You are responsible for ensuring that your communications, messages, User Content and use of our Assets and Services complies with the terms and conditions of such Third Party Social Services.
Use of Services
Access to Services: Provided you are in compliance with the Terms, you are granted a non-exclusive, non-transferable and non-exclusive right to use the Services and Assets for the Term (as defined below) solely for purposes of marketing and promoting your own products and services. You may not use the Services or Assets to develop competing products and services or license others to use the Assets or Services as standalone products and services that compete with our Assets and Services.
License to User Content: You retain ownership of User Content, but not the Assets or any derivative work of the Assets. By submitting, posting, or displaying User Content through our Services, you grant us a worldwide, non-exclusive, royalty-free, perpetual and irrevocable license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute such User Content in any and all media or distribution methods (now known or later developed), including, but not limited to, in connection with providing, improving and training the Products and Services, including our artificial intelligence models, and operating, promoting, and improving our Services, and to develop new ones. You also confirm that you have all the necessary rights and authority to grant us this license.
Prohibited Uses
We want to make the Products and Services a safe and secure place for our users. For this reason, we must prohibit certain kinds of activities and conduct. You agree not to use the Products or Services (including our Assets) in any way, or to engage in any conduct or provide User Content that:
• Is unlawful, illegal or unauthorized;
• Is defamatory of any other person;
• Is obscene, sexually explicit or offensive;
• Advertises or promotes any illegal products or services or makes any false, misleading or deceptive claims regarding any products or service;
• Is likely to harass, upset, embarrass, alarm or annoy any other person;
• Is likely to disrupt our Products or Services in any way;
• Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
• Infringes any copyright, trademark, trade secret, or other proprietary right of any other person; or
• Advocates, promotes or assists any violence or any unlawful act.
You further agree not to:
• Publish and/or make any use of the Products or Services on any website, media, network or system other than those provided by us, and/or frame, “deep link,” “page scrape,” mirror and/or create a browser or border environment around any of the Products or Services (or any part thereof);
• Use any “robot,” “spider” or other automatic device, program, script, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Products or Services (or any of its data), or in any way reproduce or circumvent the navigational structure or presentation of any of the Products or Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the Products or Services;
• Purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names that use our name or the Kendal Trademarks and/or variations and misspellings thereof;
• Impersonate any person or entity or provide false information on the Products or Services, whether directly or indirectly, or otherwise disguise your identity or the origin of any message or transmittal you send to us and/or any of our other visitors or users;
• Falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that we or any third party endorse you, or any statement you make;
• Reverse look-up, trace or seek to trace another user of the Products or Services, or otherwise interfere with or violate any other user’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the Products or Services without their express and informed consent;
• Disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the Products or Services or the account of another user or any other systems or networks connected to the Services, by hacking, password mining, or other illegitimate or prohibited means;
• Probe, scan or test the vulnerability of the Products or Services or any network connected to the Services;
• Upload to the Products or Services or otherwise use them to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive or invasive code or component;
• Take any action that may impose an unreasonable or disproportionately large load on the infrastructure of the Products or Services or our systems or networks connected to the Services, or otherwise interfere with or disrupt the operation of the Products or Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies or regulations of such servers or networks; or
• Use the Products or Services in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters,” “pyramid schemes” or similar conduct, or otherwise engage in false, misleading, unethical marketing or advertising.
We reserve the right at our sole discretion to terminate any user’s access to the Prodcuts and the Services if they violate this Section 8 or any other provision of these Terms.
Fees
We may charge fees (“Fees”) for use of the Services on per use or subscription basis through a third party payment service provider. Subscriptions may be offered on a monthly, annual or other periodic basis as stated on the order page. You authorize us and our payment service provider to charge the credit card or other accepted payment method for the Fees you owe. Subscriptions automatically renew for successive periods of the same length unless you cancel the subscription in writing by notifying us at [joel@crowdpad.io] prior to the end of the then current subscription term.
Credits obtained under a subscription package will remain valid as long as the subscription is active. These credits can be carried over to subsequent subscription period until utilized.
If a subscription is cancelled, any remaining credits will expire at the end of the subscription period. They will not be available for use after the subscription ends.
Credits can be used to request content through our AI-assisted content creation tool or creator discovery tool. The number of credits deducted will depend on the specific request or service.
Credits have no monetary value and cannot be refunded or exchanged for cash or any other form of credits. If a user decides to cancel their subscription, remaining credits cannot be refunded.
Credits are non-transferable. They are linked to the subscriber's account and cannot be shared or transferred to another account.
Refund Policy. If for any reason you would like to refund you credits, you may do so prior to requesting any Services. Refund requests must be made prior to the first prompt being accepted or 7 days upon payment, whichever comes first. If you choose to cancel, please email joel@crowdpad.io.
We reserve the right to modify the credit system, the value of credits, and the Services for which they can be used, at any time at our sole discretion. Any changes will be communicated to the users through appropriate channels.
Free Trial
Kendal may, at its sole discretion, offer a free trial for a limited period of time (“Free Trial”). You may be required to enter your billing information in order to sign up for Free Trial. At the end of the Free Trial, you may be automatically converted to a paid subscription, unless you cancel prior to the end of the Free Trial.
At any time and without notice, Kendal reserves the right to (i) modify the Free Trial offer, or (ii) cancel such Free Trial offer.
Intellectual Property
The Services contain copyrighted material, trademarks and other proprietary information, including videos, comments, articles, information, catalogs, brochures, data, text, software, photos, and graphics, including our Assets (collectively, “Kendal Content”). This Kendal Content and all intellectual property rights therein are owned by Kendal, its affiliates, and/or its licensors, and is protected by United States and international intellectual property laws. You may not either directly or through the use of any device, software, internet site, web-based service, or other means, modify, publish, transmit, stream, upload, display, participate in the transfer or sale, create derivative works, or in any way exploit the Kendal Content or the Services or any portion of such Kendal Content or Services except as expressly provided herein. Any use of the Kendal Content or Services not expressly permitted by these Terms is a breach of these Terms and may violate U.S. or international copyright, trademark, and/or other laws. All rights in the Kendal Content are expressly reserved.
Kendal, Kendal.ai and its associated logos are trademarks or service marks of Kendal (collectively the “Kendal Trademarks”) are owned by Kendal. Nothing in these Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Kendal Trademarks displayed on the Services without prior written permission in each instance from Kendal. All goodwill generated from the use of the Kendal Trademarks will inure to the exclusive benefit of Kendal.
We welcome your comments, suggestions, ideas or other feedback (“Feedback”) about our Products, Assets or Services. If you provide Feedback, you agree that we can use that Feedback for any purpose, including to improve the Prodcuts, Assets or Services, without further obligation (including payment) to you.
Privacy
Your privacy is important to us. Please review our Privacy Policy to understand how we collect, use, and disclose information related to your use of the Products and Services.
Term and Termination
Term. The term of your right to use the Services begins on the Effective Date and ends on the Termination Date (the “Term”). “Effective Date” means the earlier of the date after payment of Fees is received or a subscription or free trial is commenced, unless otherwise noted. “Termination Date” means the earlier date of: (i) the expiration or termination of all credits; (ii) the expiration of the applicable subscription period that has not been renewed or (ii) other termination under this Section 13.
Termination for Cause. Either party may terminate any subscription or order for the Services: (i) if the other party is in material breach of these Terms and fails to cure the breach within thirty (30) days of receiving written notice from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any notice of breach must contain specific information to substantiate the alleged breach. If you terminate due to Kendal’s breach, your exclusive remedy is a pro-rata reimbursement of prepaid Fees covering the remainder of the subscription term after the Termination Date. If Kendal terminates due to your breach, you will pay any unpaid Fees covering the remainder of the subscription term after the Termination Date. Termination under this section will not relieve you of you obligation to pay any Fees owed for the period prior to the Termination Date.
Effect of Termination. You shall immediately cease all use of and access to the Services on the Termination Date. Termination of these Terms or your account will not limit any of our other rights or remedies. Any provisions in these Terms which, by their nature, would be intended to survive termination or expiration of these Terms, shall survive the termination or expiration of these Terms, including, without limitation, those provisions which expressly survive such termination or expiration, including, but not limited to, Sections 3, 4, 5, 6, the obligations to pay Fees in Section 9, and Section 10 through to 26.
There will be no refunds for partial use of Services, upgrade/downgrade refunds, refunds for unused features, or refunds for failures or inaccessibility of the Services due to circumstances beyond Kendal’s control. Kendal reserves the right to suspend or terminate your access to the Services for non-payment without notice.
Disclaimer of Warranties and Limitations of Liability
UNLESS EXPRESSLY PROVIDED OTHERWISE, OUR PRODUCTS AND ANY ASSETS AND SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. We specifically disclaim all warranties and conditions of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, non-infringement, freedom from defects, uninterrupted use and all warranties implied from any course of dealing or usage of trade. We do not warrant that (a) the Products, Assets and the Services will meet your requirements, (b) operation of the Products, Assets and the Services will be uninterrupted or be virus- or error-free or (c) errors will be corrected. Any oral or written advice provided by us, or our authorized agents does not and will not create any warranty. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES WHICH MEANS THAT SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU AGREE THAT IN NO EVENT WILL KENDAL AND OUR AFFILIATES AND OUR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, ASSIGNS, SUBSIDIARIES OR AFFILIATES (COLLECTIVELY, THE “KENDAL PARTIES”) BE LIABLE (Y) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF THE KENDAL PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR (Z) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OUR SITE, PRODUCTS AND SERVICES.
The disclaimer of liability detailed above will not apply to the extent prohibited by applicable law in the jurisdiction of your place of residence. You acknowledge and agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms and that we would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.
Indemnification
You agree to indemnify and defend the Kendal Parties from and against all losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees brought against us by any third party arising from your violation of these Terms, breach of any representations and warranties, the rights of a third-party or applicable law, your products and services promoted or marketing through the Services, or your use of the Services or User Content. Assets. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. In any event, no settlement that affects our rights or obligations may be made without our prior written approval.
Intellectual Property Claims
We respect the intellectual property rights of others and require that users of our Products and Services do the same. In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent can be reached at [insert contact information].
To be sure the matter is handled immediately, your written notice must:
Contain your physical or electronic signature;
Identify the copyrighted work or other intellectual property alleged to have been infringed;
Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
Contain a statement that the information in the written notice is accurate; and
Contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Designated Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our Agent with a written counter-notification that includes the following information:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
We reserve the right, in our sole discretion, to terminate the account or access of any user of the Products and Services who is the subject of repeated DMCA or other infringement notifications.
Governing Law and Jurisdiction
These Terms are governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without giving effect to the principles of conflicts of laws of Delaware or any other state and are binding upon the parties hereto in the United States and worldwide. You and we agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms. For any Dispute that is not subject to arbitration under Section 18 or small claims actions, the parties agree that the state and federal courts in the State of Delaware shall have exclusive jurisdiction over such Disputes.
Dispute Resolution
Please read the following arbitration provision (“Arbitration Provision”) carefully. It requires you to arbitrate Disputes with Kendal and limits the manner in which you can seek relief therefrom. This Arbitration Provision survives termination or expiration of these Terms.
Disputes. Except as set forth herein, you agree that any and all past, present or future disputes or claims, including without limitation (a) federal and state regulatory and statutory claims, (b) common law claims, (c) claims under local ordinances, (d) data breach or privacy claims and (e) claims based in contract, tort, intentional tort, fraud, misrepresentation or any other legal theory, arising out of or relating to the Terms, Services, Products, Assets, purchases or payments you make, transactions you engage in, collection of amounts due, or the relationship between you and Kendal and any of their agents, employees, officers, directors, predecessors in interest, and successors and assigns (collectively, “Dispute(s)”) – at the election of you or us – shall be resolved exclusively through final and binding arbitration, as set forth in this Arbitration Provision, rather than in court before a judge or a jury.
Pre-Arbitration Dispute Resolution. We are always interested in resolving Disputes amicably and efficiently, and most customer concerns can be resolved. Before submitting a claim for arbitration in accordance with this provision, you and we agree to try, for 60 days, to resolve any Dispute informally. Any party wishing to bring a claim agrees to provide a notice of the Dispute to the other party, which shall include the sender’s name, address and contact information, the facts giving rise to the Dispute, and the relief requested. The notice shall be an individualized claim specific to the individual bringing the claim. Any notice to Kendal shall be sent to: CrowdPad Inc., 251 Little Falls Drive, Wilmington, Delaware 19808 (“Notice Address”). Any notice sent to you will be sent to the most recent email address or other address that Kendal has in its records for you. To minimize the cost and inconvenience to all parties, and to promote prompt resolution of Disputes, you and we agree that engaging in this initial dispute resolution process is a material term of these Terms and a requirement that must be fulfilled before commencing any arbitration. You and we agree to act in good faith to resolve the Dispute before commencing arbitration in accordance with this Section.
Exceptions. If either party contends that the amount of a claim in a Dispute is within the jurisdiction of the small claims court (or an equivalent court), it may instruct the administrator to administratively close the arbitration case, prior to payment of fees, and direct that the claim be filed, if at all, in small claims court. Upon such a request by a party, the arbitration provider shall administratively close the arbitration proceeding. Any dispute about whether a claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the small claims court lacks jurisdiction over the action. Only in the event that the small claims court determines that it lacks jurisdiction over the Dispute may the arbitration provider reopen the arbitration case. You and we acknowledge that failure to comply with the provisions of this Section would irreparably harm the party requesting administrative closure of the arbitration proceeding, and you and Kendal agree that a court may issue an order staying the arbitrations (and any obligation to pay arbitration fees) until any disagreements over the provisions of this Section are resolved by the court. You and we do not have to arbitrate a small claim that is filed in small claims court, but if that claim is transferred, removed, or appealed to a different court, you or we may elect to compel arbitration. Moreover, if you or we bring any counterclaim or cross-claim that is for more than the small claims court’s jurisdiction, you or we can elect to have the entire claim (including the counterclaim or cross-claim) resolved by arbitration.
Agreement to Arbitrate. After the pre-arbitration dispute resolution process, you agree that any and all remaining Disputes shall be resolved exclusively through final and binding arbitration, except , rather than a court, in accordance with the terms of this Arbitration Provision, except that you and Kendal both agree that nothing in this Arbitration Provision will be deemed to waive, preclude, or otherwise limit either party’s rights, at any time, to (1) bring an individual action in a U.S. small claims court; (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator; or (3) any claim by Kendal in a court of law for violation of its intellectual property rights. In addition, this Arbitration Provision does not stop you or us from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa). You agree that, by entering into these Terms, you and we are each waiving the right to a trial by jury or to participate in a class or mass action, except as noted below. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Provision.
Arbitration Procedures. You agree that any Dispute will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). If the Dispute involves less than $50,000, either party can invoke the Expedited Procedures in the JAMS Rules. Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. If there is any inconsistency between any term of the JAMS Rules and any term of this Arbitration Provision, the applicable terms of this Arbitration Provision will control unless the arbitrator determines that the application of the inconsistent Arbitration Provision terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and threshold arbitrability of this Arbitration Provision or the Dispute. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. The arbitration shall be held in a major city location reasonably convenient to where you reside and where JAMS has an office, or at another mutually agreed upon location. Attendance at an in-person hearing may be made by telephone by you and/or the other party, unless the arbitrator requires otherwise.
Mass Action Waiver: The parties expressly waive the right to have any dispute, claim, or controversy brought, heard, administered, resolved, or arbitrated as a mass action, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any mass action or to award relief to anyone but the individual in arbitration. The parties also expressly waive the right to seek, recover, or obtain any non-individual relief. The parties agree that the definition of a “Mass Action” includes, but is not limited to, instances in which you or Kendal are represented by a law firm or collection of law firms that has filed 50 or more arbitration demands of a substantially similar nature against the other party within 180 days of the arbitration demand filed on your or Kendal’s behalf, and the law firm or collection of law firms seeks to simultaneously or collectively administer and/or arbitrate all the arbitration demands in the aggregate. Notwithstanding anything else in these Terms or this Arbitration Provision, this Mass Action Waiver does not prevent you or Kendal from participating in a mass settlement of claims. Notwithstanding any provision to the contrary in the applicable arbitration provider’s rules, the arbitrator shall be empowered to determine whether the party bringing any claim has filed a Mass Action in violation of the Mass Action Waiver. Either party shall raise with the arbitrator or arbitration provider such a dispute within 15 days of its arising. If such a dispute arises before an arbitrator has been appointed, the parties agree that (i) a panel of three arbitrators shall be appointed to resolve only disputes concerning whether the party bringing any claim has filed a Mass Action in violation of the Mass Action Waiver. Each party shall select one arbitrator from the arbitration provider’s roster to serve as a neutral arbitrator, and these arbitrators shall appoint a third neutral arbitrator. If the parties’ arbitrators cannot agree on a third arbitrator, the arbitration provider will select the third arbitrator; (ii) Kendal shall pay any administrative fees or costs incidental to the appointment of Arbitrators under this provision, as well as any fees or costs that would not be incurred in a court proceeding, such as payment of the fees of the arbitrators, as well as room rental; (iii) the arbitrators shall issue a written decision with findings of fact and conclusions of law; and (iv) any further arbitration proceedings or assessment of arbitration-related fees shall be stayed pending the arbitrators’ resolution of the parties’ dispute. If the arbitrator or panel of arbitrators determines that you have violated the Mass Action Waiver, the parties shall have the opportunity to opt out of arbitration within 30 days of the arbitrator’s or panel of arbitrator’s decision. You may opt out of arbitration by providing written notice of your intention to opt out to the arbitration provider and to or hand delivery. This written notice must be signed by you, and not any attorney, agent, or other representative of yours. Kendal may opt out of arbitration by sending written notice of its intention to opt out to the arbitration provider and to you or your attorney, agent, or representative if you are represented. For the avoidance of doubt, the ability to opt out of arbitration described in this section only applies if the arbitrator or panel of arbitrators determines that you have violated the Mass Action Waiver.
Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules.
ARBITRATION OPT-OUT: YOU MAY OPT OUT OF RESOLVING DISPUTES BY ARBITRATION BY EMAILING US AT JOEL@CROWDPAD.IO WITHIN 30 DAYS OF FIRST ACCEPTING THE THESE TERMS OR USE OF THE SERVICES, WHICHEVER COMES FIRST, AND TELLING US YOU WOULD LIKE TO OPT OUT OF MANDATORY ARBITRATION, OTHERWISE YOU SHALL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THESE TERMS. YOU MUST INCLUDE YOUR FIRST AND LAST NAME, YOUR MAILING ADDRESS, YOUR EMAIL, AND YOUR MOBILE PHONE NUMBER IN THE EMAIL. IF YOU OPT-OUT OF THIS ARBITRATION AGREEMENT, WE WILL ALSO NOT BE BOUND BY ARBITRATION.
Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, MASS ACTION OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S); EXCEPT THAT YOU MAY PURSUE A CLAIM FOR, AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Provision (other than the section entitled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Provision shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the section above entitled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Provision shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
Future Changes to Arbitration Provision. Notwithstanding any provision in these Terms to the contrary, we agree that if we make any future change to this Arbitration Provision (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Arbitration Provision as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Time for Bringing Claims. Notwithstanding anything in the law in the contrary, you agree that the time limit for asserting any Dispute against the Kendal Parties shall be one (1) year from the date such Dispute arose.
Notice to California Consumers
Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact the California Department of Consumer Affairs at dca@dca.ca.gov.
Communications
By using the Services, you consent to receive communications from us, including but not limited to account-related notices, updates, and promotional materials electronically through the email address you provided with registering for the Services. You can opt-out of promotional communications at any time by following the instructions provided in the communication.
Third-Party Links and Services
The Products and Services may contain links to or utilize third-party websites, applications, or services that are not owned or controlled by us. We do not endorse or assume any responsibility for the content, privacy policies, or practices of third parties. You access such third-party services at your own risk.
Severability
If any provision of these Terms is found to be unenforceable or invalid, the remaining provisions shall remain in full force and effect. The unenforceable or invalid provision shall be replaced by a valid provision that achieves the original intent as closely as possible.
Entire Agreement
These Terms, along with our Privacy Policy and any Additional Rules, constitute the entire agreement between you and us regarding the use of the Products, Assets or Services, superseding any prior agreements or understandings. It may only be modified by us in writing as set forth in these Terms.
Waiver
Our failure to enforce any right or provision of these Terms shall not be deemed a waiver of such right or provision. Any waiver must be in writing and signed by us to be legally binding.
Assignment
You may not assign or transfer any rights or obligations under these Terms without our prior written consent. We may assign or transfer these Terms, in whole or in part, without restriction or notification.
Force Majeure
If we or you are prevented from performing or unable to perform any obligation (except for your obligation to pay Fees) under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party`s performance will be extended for the period of delay or inability to perform due to such occurrence.
Contact Us
If you have any questions, concerns, or feedback regarding these Terms or the Services, please contact us at joel@crowdpad.io.