KeepYourSight Terms of Service Patient
The website located at www.kysvision.com (the “Site”) belongs to KeepYourSight, Inc. (“KYS“, “we” or “us”). As provided below, KYS grants you the right to use the Site, our software applications, including without limitation Macustat, Peristat per direction of your provider and other vision testing applications (collectively “Software,” or “App”), and services provided through the Site or Software (together, the “KYS Service”), subject to the terms and conditions of use (“Terms of Service” or “Terms”) set forth below. The term “you” refers to the person visiting the Site.
THE KYS SERVICE IS AVAILABLE TO KYS USERS IN THE UNITED STATES OF AMERICA AND THE REST OF THE WORLD. THE KYS SERVICE IS INTENDED ONLY TO RECORD, DISPLAY, STORE, AND TRANSMIT VISUAL FUNCITON DATA (“VISION DATA”). YOU, AS THE USER OF THE KYS SERVICE, ARE RESPONSIBLE FOR THE VISION DATA RECORDED AND STORED BY THE KYS SERVICE. THE KYS SERVICE IS NOT INTENDED TO DIAGNOSE ANY MEDICAL CONDITION OR AUTOMATICALLY ALERT HEALTHCARE PROFESSIONALS OR PATIENTS TO POTENTIALLY SERIOUS MEDICAL CONDITIONS OR ABNORMAL VISION PROBLEMS. THE KYS SERVICE IS NOT INTENDED FOR COUNTINUOUS MONITORING AND WE DO NOT GUARANTEE A RESPONSE BY ANY PHYSICIAN(S) TO MESSAGES POSTED OR MEDICAL EVENTS REPORTED THROUGH THE KYS SERVICE. ALTHOUGH KYS MAY ENABLE YOU TO USE AN OPTIONAL TEST INTERPRETATION OF THE KYS SERVICE OR CONNECT YOUR ACCOUNT TO YOUR HEALTHCARE PROVIDER THROUGH OUR KYS PRO SERVICE, KYS DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE, OR ANALYZE ANY INFORMATION GENERATED FROM THE KYS SERVICE. IT IS YOUR RESPONSIBILITY TO SHARE YOUR MEDICAL DATA WITH YOUR PHYSICIAN FOR PROPER ANALYSIS AND DIAGNOSIS.
Unless you are a consumer located in a jurisdiction that prohibits the exclusive use of arbitration for dispute resolution, these Terms provide that all disputes between you and KYS will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 24 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with KYS.
- Use of the KYS Service. The KYS Service is intended only to allow you to access the digital testing tools, complete the visual field tests and share the results with your healthcare professional, and use certain data pertaining to you as made available by the KYS Service. You may not access or use the Service for any other purpose. You may use the KYS Service, including any data presented to you on or by the KYS Service, or otherwise hosted or stored by KYS for you, only for lawful and appropriate purposes on your own behalf, and subject to your full compliance with these Terms and any other guidelines and policies applicable to the KYS Service which KYS may post from time to time.
- Eligibility. You must be at least 18 years of age to use the KYS Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the KYS Service; and (c) your registration and your use of the KYS Service is in compliance with all applicable laws and regulations in your local jurisdiction. If you are using the KYS Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- Accounts and Registration. To access most features of the KYS Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself including personal information such as your name, email address, phone number, and birthdate. You may choose to provide additional information to us. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us. Your account may automatically expire following any period of inactivity associated with your account in excess of twelve (12) consecutive months.
- Payment. Access to the KYS Service, or to certain features of the KYS Service, is generally free for patient users. KYS does not bill patients directly. Please consult with your provider on any fees that the practice may impose.
License. KYS owns and operates the KYS Service and all the data associated with it. The documents and other information and content available on the KYS Service (the “Site Content“) are protected by copyright and other intellectual property laws throughout the world. All copyright and other proprietary notices on any Site Content must be retained on any copies made thereof. Any unauthorized reproduction, modification, distribution, public display or public performance of any Site Content is strictly prohibited. KYS and its suppliers reserve all rights not granted in these Terms.
Subject to the restrictions set forth in these Terms, KYS grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the App in object code format on devices that you own or control, solely for use with the KYS Services. By downloading or using our app(s), you:
- Acknowledge that the Software/App/Test Portal are licensed, not sold to you; and
- Acknowledge that third party terms and fees may apply to the use and operation of your device in connection with your use of the App, such as your carrier’s terms of services, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for payment of any and all such fees.
- Clinician Review Service.
- General. KYS arranges for a medical professional to provide professional test analysis services (“Clinician Review Service”) to you through the KYS Service. The Clinician Review Service performs the requested service and electronically grades the tests on the KYS systems, and we make the test result available to you within the KYS Service. By accepting these Terms, you hereby agree to enrollment in the Clinician Review Service. KYS reserves the right to change the Clinician Review Service providers or discontinue one or more of the Clinician Review Service offerings.
- Reports. These reports are intended as information for you and to be used as a tool by your physician to provide proper diagnosis and treatment, taking into account your complete medical history and evaluation. Diagnosis based on your data can only be accomplished by your physician. It is your responsibility to present your medical data to your physician for proper analysis and diagnosis. KYS and the Clinician Review Service providers make no guarantees of the accuracy or clinical significance of the interpretation of your data. Please be aware that your physician may disagree with the interpretation of your data. If you decide to use the Clinician Review Service, we will share your information with the Clinician Review Service when you give permission through the KYS Service.
- Restrictions. Due to telemedicine restrictions, your local jurisdiction may restrict your ability to use the Clinician Review Service. Since you are using a mobile device to collect your data, it is your responsibility to ensure the Clinician Review Service is legal according to your local telemedicine laws.
- User Representations and Warranties.
- All users represent, warrant and covenant to KYS that (1) these Terms have been executed and delivered by you and constitute a valid and binding agreement with you, enforceable against you in accordance with their terms; (2) if you are using the KYS Service on behalf of another entity, you are an authorized representative of the entity and have the authority and agree to bind the entity to these Terms; (3) you will not access or use the KYS Service except as expressly permitted by these Terms and any additional instructions, guidelines or policies issued by KYS, including those posted in the KYS Service; (4) you will access and use the KYS Service in full compliance with applicable law; and (5) all of the information, data and other materials provided by you in support of your account registration are accurate and truthful in all respects.
- User Content
- User Content Generally. Certain features of the KYS Service may permit you, your healthcare provider, or other users to upload content to the KYS Service, including messages, images, data, text, location information, and other types of information (“User Content”) and to publish User Content on the KYS Service. You retain the copyrights, including any moral rights, and any other proprietary rights that you may hold in the User Content that you post to the KYS Service; provided that if you choose to link your account to our KYS Service or information systems offered by your healthcare provider, any data provided to your healthcare provider may become part of your health record, and that copy of such data may be owned and/or controlled by your healthcare provider under applicable law.
- Limited License Grant to Other Users. By posting or sharing User Content with other users of the KYS Service, or connecting your account to your healthcare provider through our KYS Service, you grant those users and/or healthcare providers a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the KYS Service.
User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize KYS and users of the KYS Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by KYS, the KYS Service, and these Terms; and
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) 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; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause KYS to violate any law or regulation.
You agree to pay for any and all royalties, fees, or other monies owing any person by reason of User Content you post on or through the KYS Service.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. KYS may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the KYS Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. To the fullest extent allowed under applicable law, you agree to waive, and do waive, any legal or equitable right or remedy you have or may have against KYS with respect to User Content. We expressly disclaim any and all liability in connection with User Content, to the fullest extent allowed under applicable law. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
10. Prohibited Conduct. BY USING THE KYS SERVICE YOU AGREE NOT TO:
- use or access the KYS Service (a) from a jurisdiction where such use or access is not authorized, (b) for any illegal purpose, or (c) in violation of any local, state, national, or international law;
- conduct activities that may be harmful to others or that could damage KYS’s reputation;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or disclosing personal information about another person;
- post, upload, or distribute marketing or advertising links or content, or any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- use scrapers, robots, or other data gathering devices on or through the KYS Service, or frame or otherwise provide the KYS Service to third parties without KYS’s permission;
- interfere with security-related features of the KYS Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering, decompiling, or otherwise attempting to discover the source code of any portion of the Service, including the app(s), except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction;
- interfere with the operation of the KYS Service or any user’s enjoyment of the KYS Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the KYS Service; (c) attempting to collect personal information, including without limitation VISION DATA or other health information, about another user or third party without their consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the KYS Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other KYS Service or account without permission, or falsifying your account registration information;
- modify, translate, or create derivative works, adaptations or compilations of, or based on, the KYS Service or part thereof, or use, copy or reproduce the KYS Service or any part thereof other than as expressly permitted in these Terms;
- assign, sublicense, lease, sell, grant a security interest in, or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 15) or any right or ability to view, access, or use any Material; or
- attempt to do any of the acts described in this Section 10, or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Third-Party Services and Linked Websites. The Site may contain links to other web sites operated by third parties. Such third-party web sites are not under the control of KYS and we are not responsible for the content of any third party web site or any link contained in a third party web site. KYS provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites.
12. Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by following the procedures detailed on the KYS website or contacting customer service. If you violate any provision of these Terms, your permission from us to use the KYS Service will terminate automatically. In addition, KYS may in its sole discretion terminate your user account on the KYS Service or suspend or terminate your access to the KYS Service at any time if you violate any provision of these Terms, if we no longer provide any part of the KYS Services or for any other reason, with or without notice. We also reserve the right to modify or discontinue the KYS Service at any time (including by limiting or discontinuing certain features of the KYS Service), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability on account of any change to the KYS Service or any suspension or termination of your access to or use of the KYS Service, provided that if KYS ceases to operate the KYS Service and terminates your access to the KYS Service accordingly, then you will be entitled to a pro-rated refund of any prepaid fees that you have paid to KYS for use of the KYS Service. Upon the termination of your account or this agreement for any reason, KYS may at its option delete any data associated with your account.
- Additional Terms. Your use of the KYS Service is subject to all additional terms, policies, rules, or guidelines applicable to the KYS Service or certain features of the KYS Service that we may post on or link to from the KYS Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the KYS Service, subject to Section 14. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
14. Modifications to these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations (“Material Modifications”), we will notify you of the modified Terms by email to the address you provided in your user profile. Material Modifications will be effective upon your acceptance of such modified. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. Your sole and exclusive remedy if you do not agree with any modification to these Terms is to cancel your account. You may not amend or modify these Terms under any circumstances.
15. Ownership; Proprietary Rights. The KYS Service is licensed and operated by KYS. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the KYS Service (“Materials”) provided by KYS are protected by intellectual property and other laws. All Materials included in the KYS Service are the property of KYS or our third-party licensors. Except as expressly authorized by KYS, you may not make use of the Materials. KYS reserves all rights to the Materials not granted expressly in these Terms.
16. Subcontractors. You hereby consent to KYS’s engagement of third parties (including KYS’s affiliates) to perform, or support the performance of, all or any portion of the KYS Service or the KYS website, such as the clinical interpretation service.
17. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the KYS Service (“Feedback”), then you hereby grant KYS an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the KYS Service and create other products and services.
18. Indemnity. To the fullest extent permitted under applicable law, you are responsible for your use of the KYS Service, and you will indemnify, hold harmless, and, if so directed by KYS, defend KYS and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “KYS Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the KYS Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
19. Disclaimers; No Warranties
THE KYS SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE KYS SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE KYS ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE KYS SERVICE, ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE KYS SERVICE, AND ANY SOFTWARE OR HARDWARE ASSOCIATED OR USED WITH THE KYS SERVICE, OR THE AVAILABILITY OF ANY OF THE FOREGOING, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (c) ANY WARRANTY AS TO WHETHER THE VISION DATA OR OTHER INFORMATION AVAILABLE ON OR TRANSMITTED BY THE KYS SERVICE IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT KYS IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROFESSIONAL BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE KYS SERVICE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. THE KYS ENTITIES DO NOT WARRANT THAT THE KYS SERVICE OR ANY PORTION OF THE KYS SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE KYS SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE KYS SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE KYS SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE KYS ENTITIES OR THE KYS SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE KYS SERVICE, YOUR DEALING WITH ANY OTHER KYS SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE KYS SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE KYS SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE KYS SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE KYS SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE KYS SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, SUCH AS LEGAL GUARANTEES OF CONFORMITY FOR GOODS OFFERED TO CONSUMERS IN THE EU, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
20. Limitation of Liability
IN NO EVENT WILL THE KYS ENTITIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE KYS SERVICE OR ANY MATERIALS OR CONTENT ON THE KYS SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY KYS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH, THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES.
EXCEPT AS PROVIDED IN SECTION 241.E, IF KYS CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN THE AGGREGATE LIABILITY OF THE KYS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE KYS SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE PAID TO USE THE KYS SERVICE OR $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU TO THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THESE TERMS. NOTHING IN THESE TERMS AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Force Majeure. KYS will be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of a Force Majeure Event. To the fullest extent permitted under applicable law, for purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (5) telecommunications, network, computer, server or Internet downtime; (6) unauthorized access to KYS’s information technology systems by third parties; or (7) other causes beyond the reasonable control of KYS.
22. Governing Law and Competent Courts. To the fullest extent permitted pursuant to applicable law, these Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and KYS agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Delaware County for the purpose of litigating any dispute. We operate the KYS Service from our offices in the United States, and we make no representation that Materials included in the KYS Service are appropriate or available for use in other locations.
24. Dispute Resolution and Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRE YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM US.
- Generally. To the fullest extent permitted under applicable law and in the interest of resolving disputes between you and KYS in the most expedient and cost effective manner, you and KYS agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, unless you are a consumer located in a jurisdiction that prohibits the exclusive use of arbitration for dispute resolution.
Arbitration is less formal 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 all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND KYS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
- Opt-Out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting KYS within 30 days of first accepting these Terms of Service and stating that you (include your first and last name, and email address used to register for the KYS Service) decline this arbitration agreement.
- Exceptions. Despite the provisions of Section 24A, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and KYS will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting KYS.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or KYS may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or KYS must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, KYS will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by KYS in settlement of the dispute prior to the arbitrator’s award; or (iii) $100.
- Fees. If you commence arbitration in accordance with these Terms, KYS will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location, to be agreed upon in Delaware, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse KYS for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND KYS 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 KYS 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, to the fullest extent permissible pursuant to applicable law.
- Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these Terms shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
- Modifications to this Arbitration Provision. If KYS makes any future change to this arbitration provision, other than a change to KYS’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to KYS’s address for Notice, in which case your account with KYS will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 24G is found to be unenforceable or if the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to these Terms.