Last Updated: September 6, 2022
Welcome to Qelviq.com!
YOUR USE OF THE SITE CONSTITUTES YOUR UNCONDITIONAL AGREEMENT TO FOLLOW THESE TERMS AND TO BE BOUND BY THEM, THUS PLEASE READ THEM CAREFULLY. IF YOU DO NOT ACCEPT THESE TERMS, THEN PLEASE DO NOT USE THE SITE.
THE INFORMATION CONTAINED HEREIN SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SALES TRANSACTION(S) CONTEMPLATED FOR HEREBY. THESE TERMS REQUIRE THE USE OF ARBITRATION (ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED) IN ORDER TO RESOLVE DISPUTES. PLEASE REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ENTERING INTO ANY TRANSACTION HEREUNDER IN ORDER TO CONFIRM YOUR ACCEPTANCE HEREOF. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE UNLESS YOU: (A) AGREE TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY; (B) ARE AT LEAST 18 YEARS OLD; AND (C) ARE NOT PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS, OR SERVICES BY ANY APPLICABLE LAW, RULE, OR REGULATION. PLEASE REVIEW THE MUTUAL ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION AND WAIVING YOUR RIGHT TO A CLASS ACTION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS MUTUAL ARBITRATION AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. THESE TERMS ALSO CONTAIN RELEASES, LIMITATIONS ON LIABILITY, AND PROVISIONS ON INDEMNITY, ALL OF WHICH MAY LIMIT YOUR LEGAL RIGHTS AND REMEDIES.
AGREEMENT TO TERMS AND CONDITIONS OF USE BY USER
IMPORTANT INFORMATION FOR US RESIDENTS
BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS MUTUAL ARBITRATION AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. THESE TERMS ALSO CONTAIN RELEASES, LIMITATIONS ON LIABILITY, AND PROVISIONS ON INDEMNITY, ALL OF WHICH MAY LIMIT YOUR LEGAL RIGHTS AND REMEDIES.
We reserve the right to change or modify these Terms at any time and at our sole discretion. If we make changes to these Terms, we may provide notice of such changes, such as by posting a notice on our Site and/or updating the “Last Updated” date above. However, any changes or modifications will be effective immediately upon posting of the changes or modifications, and you waive any right you may have to receive specific notice of such changes or modifications, and to the extent permitted by law you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Site following the posting of changes or modifications will confirm your acceptance of such changes or modifications. If you do not agree to the amended Terms, you must stop using our Site.
TERMS OF SALE
- Online Orders: When placing an order on our Site, you are offering to purchase whatever products and services you select. We reserve the right to accept or reject any order in our own discretion. We will only accept or reject an order in its entirety. Should we elect to accept your offer, you will receive a confirming email at the email address that you provide at such time. Notwithstanding, we reserve the right to cancel any order once accepted by us (as evidenced by a confirming email) at any time in our sole discretion. Additionally, you have the option of cancelling your order (in its entirety only) at any time prior to our having sent to you the confirming email referenced herein.
- Payment Terms: All applicable prices are set forth alongside the goods and services offered on the Site. Such prices are subject to change at any time by us in our sole discretion. You will be responsible for the prices stated at the time of your transaction, as well as any: (i) sales, use, excise, and related taxes; and (ii) shipping and handling charges. Payment may only be made with a valid credit, debit card, or use of a bona-fide electronic payment provider (i.e., PayPal). By using any such card or payment provider, you are hereby representing and warranting your full right and authority to make such purchase in the manner elected without violating any applicable law, rule, or regulation.
- Shipping Information: It is our responsibility to ship your accepted order to you at the address you provide when making the order. You will be responsible for all associated shipping & handling charges, unless otherwise noted. While we agree to use reasonable efforts to meet the shipping and delivery dates provided online, we shall not be responsible for any delays in shipments.
- Returns: If you, for any reason, are not satisfied with your order, you may return it for a full refund; provided: (i) the items(s) were not designated as non-returnable; (ii) your return is made within thirty (30) days of delivery; and (iii) the merchandise is returned in the same condition as originally received by you. Once the goods are received by us, we will refund your purchase price, less the original shipping and handling charges. All returns must be made pursuant to the specific return procedure specifically set forth on the Site (which can be found here ). You bear the risk of loss or damage during shipment (other than when returning non-conforming merchandise) and as such, you are advised to obtain appropriate insurance. Your refund will be credited back to the same payment method used to make the applicable purchase.
- Representations & Warranties; Disclaimers; Limitations on Liability:
- Buyer’s Representations & Warranties. You represent and warrant to us as follows: (i) that you have the right to enter into any transaction contemplated for hereby without violating these Terms, any applicable law, rule, or regulation, and/or any agreement with, or rights of, any third party; (ii) that you will use the goods and services provided hereunder exactly as authorized and never in any way that would violate any applicable law or third party right of any kind; and (iii) that you are buying goods or services from the Site for solely your own use, and not for resale and/or export.
- Qelviq Limited Product Warranty. Our products are covered by the limited warranty set forth at Returns & Warranty Policy which is incorporated by reference herein.
YOU MUST BE AT LEAST AGE 18 TO USE THE SITE. By using the Sites, you affirm that you are over age 18. If you are under 18, you may use the Site only with the consent, supervision and involvement of a parent or guardian who agrees to be bound by these terms.
IF YOU ARE A PARENT OR GUARDIAN THAT PROVIDES CONSENT TO YOUR MINOR’S REGISTRATION WITH AND USE OF THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS IN RESPECT OF SUCH MINOR’S USE OF THE SITE AND BE FULLY RESPONSIBLE FOR THE ACTS OR OMISSIONS OF SUCH USER IN RELATION TO THE SITE.
Pursuant to 47 U.S.C. Section 230 (d), we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that we do not endorse any of the products or services listed on such site.
We reserve the right to refuse service and/or purchases, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
We reserve the right to withdraw or amend this Site, and any service or material we provide on the Site, at our sole discretion without notice. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Site, or the entire Site, to anyone. We also reserve the right to disable any account, username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
You may be required to register with Us in order to access certain services or areas of the Site. If you create an account, your username and password are for your personal use only and you are responsible for maintaining the confidentiality of your account information (including your password) and for restricting access to your account. You agree to accept responsibility for all activities that occur under your account or password. In addition to all other rights available, We reserve the right, in our sole discretion, to terminate your account, refuse service to you, or cancel orders.
The receipt of an order number or an email order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. We reserve the right, without prior notification, to limit the order quantity on any item and/or to refuse service to any customer. Verification of information may be required prior to the acceptance of an order. Prices and availability of products on the Site are subject to change without notice. Errors will be corrected when discovered and We reserve the right to revoke any stated offer and to correct any error, inaccuracy, or omission (including after an order has been submitted). We reserve the right, in Our sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at Our sole discretion. Items purchased pursuant to a quantity discount may be re-priced upon cancellation.
When visiting the Site, or when you send us emails, you are communicating with us electronically. By using the Site, you consent to receive communications from us electronically. including targeted emails, surveys, promotional offers and for other general business purposes. We may communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically will satisfy any legal requirement that such communications be in writing.
We are based in the United States. Access to the Site may not be legal by certain persons or in certain countries, and our products may only be available for purchase and delivery in certain countries. When you access the Site, you do so on your own initiative and are responsible for compliance with local laws.
The Site, including all of its information and contents such as photographs, images, text, data, wallpapers, icons, characters, artwork, graphics, page layout, form, music, sound, messages, software and the code used to generate the pages on the Site (collectively, the "Materials"), is the property of Kellvin or that of Our authorized suppliers or licensors, and is protected by intellectual property and other applicable laws in the United States and/or abroad. Our intellectual property is registered in the United States and abroad. Except as otherwise provided on the Site or in these Terms, you may not download, upload, copy, print, display, reproduce, publish, license, post, distribute, or otherwise use any Materials from the Site in whole or in part for any public or commercial purpose without Our specific prior written permission. We are the owner and/or authorized user of the Kellvin brand as well as any other registered or unregistered trademarks, trade names, logos, designs, titles and product names appearing on the Site, and is the copyright owner or licensee of the Materials on the Site, unless otherwise indicated. You may not use any metatags or any other "hidden text" utilizing any of Our names or trademarks without Our express written consent.
You agree not to infringe any or all of the title, ownership and intellectual property rights of Kellvin or any third parties. You hereby agree to indemnify and hold us harmless in the event of any claims of breach of intellectual property rights by or through your use of the Site and any content contained therein (or other material as set forth above). All rights not otherwise claimed under these Terms or by Us are hereby reserved.
YOUR USE OF THE SITE
We grant you a personal, limited, non-exclusive, nontransferable license to access and make personal use of the Site and the Materials and other information contained on the Site. This license does not include any resale or commercial use of the Site; any collection and commercial use of any photographs or other Materials published on the Site; any non-personal use of Our product names, listings, descriptions, or prices; any derivative use of the Site; any downloading, copying, or other use of the Site or the Materials for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. You may use the Site only as permitted by law. All rights not expressly granted to you in these Terms are reserved and retained by Us and/or our suppliers and licensors. The licenses granted by Us to you automatically terminate if you do not comply with these Terms.
You agree to use the Site for your personal use only and shall in no event use any of the information, text, images, graphics, video clips, sound, directories, files, databases, listings etc. obtained on or through the Site for commercial purposes of any sort, nor for copying, reproducing, downloading, compiling whether directly, indirectly. Use of any content on the Site for purposes other than as permitted in these Terms is prohibited.
You may use the Site only for lawful purposes and in accordance with these Terms. You agree not to use the Site:
- In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries).
- For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personal information or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
- To impersonate or attempt to impersonate Kellvin, an employee or agent of Ours, another user or any other person or entity, including, without limitation, by using email addresses, telephone numbers, or screen names associated with any of the foregoing, or otherwise submitting false information.
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm Us or visitors or users of the Site or expose them to liability.
- To post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable.
Additionally, you agree not to:
- Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use of the Site, including their ability to engage in real time activities through the Site.
- Use any robot, spider or other automatic device, process or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
- Use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose without our prior written consent.
- Use any device, software or routine that interferes with the proper working of the Site.
- Introduce any viruses, trojan horses, worms, logic bombs or other material, code or program which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer or database connected to the Site.
- Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
- Attempt to gain unauthorized access to any personal information that may be contained on the Site, the server on which the Site is stored, or any server, computer, database or information system connected to the Site.
- Collect, store or use personal information about other users of the Site without their consent.
- Attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Site.
- Attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site.
- Otherwise attempt to interfere with the proper working of the Site.
- Violate, infringe, or misappropriate any other person’s or company’s intellectual property, privacy, publicity, or other legal rights;
- Advocate, encourage, or assist any third party in doing any of the foregoing.
USER GENERATED CONTENT
The Site may allow you to upload, submit, store, send, or receive content and data such as comments, reviews, text, video and photos ("User Generated Content"). You may also submit User Generated Content in the other ways that you interact with Us such as through social media, by email, by phone, and otherwise. You retain ownership of any intellectual property rights that you hold in that User Generated Content. You are solely responsible for your own User-Generated Content and the consequences of posting or publishing it to the Site. We do not endorse any User-Generated Content or any opinion or recommendation expressed therein. We may refuse to accept or transmit User Generated Content for any reason with or without notice. We may remove User Generated Content from the Site for any reason with or without notice.
When you upload, post, submit, send, or receive any User Generated Content to or through the Site, you give Us a perpetual, worldwide, non-exclusive, irrevocable, fully-paid, royalty-free, fully sub-licensable (through multiple tiers) and transferable right and license to use, reproduce, distribute, edit, modify, translate, reformat, prepare derivative works based upon, display publicly, perform publicly and otherwise exploit (including but not limited to over the Internet, broadcast television or any other uses or media) your User Generated Content, in whole or in part, including future rights that We (including any successor) may otherwise become entitled to that do not yet exist, as well as new uses, media, means and forms of exploitation throughout the universe exploiting current or future technology yet to be developed. You grant Us and sublicensees the right to use the name that you submit in connection with such User-Generated Content, if they choose.
You further promise that:
- you own all rights to your User Generated Content or, alternatively, that you have the right to give us the rights described above; and
- your User Generated Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
We have the right, but not the obligation, to monitor and edit or remove any activity or User Generated Content. We take no responsibility and assumes no liability for any User Generated Content. By posting User Generated Content, you agree to indemnify Us for all losses resulting from any claims related to or arising out of the User Generated Content that you supply, as further explained under the section below titled “Indemnity”.
You also agree further that We are not responsible and shall have no liability to you for any User Generated Content posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material or content rests entirely with you.
USE OF SOCIAL MEDIA TAGS
When you use social media tags (such as on Instagram, Facebook, TikTok or Twitter) that identify or are associated with Kellvin, including without limitation @qelviq, #qelviq, or any other similar social media tag in any way related to Us, you agree to provide Us with an unrestricted, irrevocable, non-exclusive, royalty-free, perpetual, fully paid-up, transferable, worldwide license to reproduce and use the uploaded content, including image(s), in Our (or our sublicensees’) marketing materials and through all social media channels.
All of the content you see on the Site, including, for example, but not limited to, all of the page headers, images, illustrations, graphics, audio clips, video clips, and text (referred to herein as the "Content") is the exclusive property of Kellvin and/or is subject to trademark, service mark, trade dress, copyright and/or other intellectual property rights or licenses held by Us, by one of Our affiliates or by third parties who have licensed or assigned their rights, interests and/or materials to Us. The entire Content of the Site is copyrighted as a collective work under U.S. and other applicable copyright laws, and We own a copyright in the selection, coordination, arrangement and enhancement of the Content. The Content of the Site, and the Site as a whole, are intended solely for the personal and non-commercial use of the users of our Site. As such a user, you may download, print and store selected portions of the Content, but only if (1) you use any such copies of the Content only for your own personal and non-commercial use, (2) you do not copy or post the Content on any network computer or broadcast the Content in any media and/or in any form or format, (3) you do not modify or alter the Content in any way, or delete or change any copyright or trademark notice, and (4) you properly credit any intellectual property rights to Us. No right, title or interest in any downloaded or copied materials are transferred to you as a result of any such downloading or copying. We reserve complete title and full intellectual property rights in any Content you download from this Site. Except as noted above, you may not copy, download, reproduce, modify, publish, distribute, transmit, transfer or create derivative works from the Content without first obtaining the express written permission of Kellvin.
Notice of Copyright Infringement
We respect the intellectual property rights of others. Please notify Us in writing by mail or email to our designated agent listed below if you believe that a user of our Site has infringed your copyright. Pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA"), to be effective the notification should include:
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- identification of the claimed infringing material and information such as a URL or other Site location reasonably sufficient to permit Us to locate the material on our Site;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address;
- 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;
- a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and;
- your physical or electronic signature, or if you are authorized to act on the copyright owner’s behalf, said copyright owner’s signature.
Please send all notices under the above copyright infringement policies to Our agent for receipt of notifications of claimed infringement:
Attn: Agent for Copyright Notice/General Counsel
PO Box 682
Windham, NY 12496
If you fail to comply with all of the above requirements, your DMCA Notice will not be valid. Please note that you may be liable for damages, including court costs and attorneys' fees, if you materially misrepresent that materials on the Site are infringing a copyright.
Please do not send notices or inquiries about anything other than alleged copyright infringement to our Agent for Notice.
You acknowledge and agree that upon receipt and notice of a claim of infringement, we may immediately remove the identified materials from our Site without liability, and the claims of the complaining party and party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the DMCA.
Counter-Notice by Accused User
If we have taken down your materials due to suspicion of copyright infringement, you may dispute the alleged infringement by sending a written communication by mail or email to our designated agent below. That written communication should include the following:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the URL or other Site location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which such address is located, or if your address is outside of the United States, the United States District Court for the Central District of California, and that you will accept service of process from the person who provided notification of copyright infringement or an agent of such person.
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification, we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.
Please submit counter notifications to Our agent for receipt of notifications of claimed infringement:
Attn: Agent for Copyright Notice/General Counsel
PO Box 682
Windham, NY 12496
You acknowledge that if you fail to comply with all of the above requirements, your DMCA counter notification will not be valid. Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorneys' fees.
Your account may be terminated if, in our discretion, you are determined to be a repeat infringer. Repeat infringers are users who have been the subject of more than one valid takedown request that has not been successfully rebutted.
The prices displayed on the Site are quoted in U.S. Dollars and are valid and effective only in the United States. Furthermore, while we do our best to assure that the taxes quoted for a particular order are accurate for the applicable location to which the order is being shipped, should an erroneous quote be provided, we will notify you of such error before finalizing and shipping your order. You will be responsible for all applicable taxes, regardless of the amount quoted on this Website at the time of your order. Product availability and prices are subject to change. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update product pricing, availability or other information at any time without prior notice (including after you have submitted your order). If you do not wish to continue your purchase after pricing or other information has been corrected, please contact us right away and we will work with you to cancel or return your order. Our shipping and processing charges are intended to compensate Us for the cost of processing your order, handling and packing the products you purchase and delivering them to you. We encourage you to also review detailed information about our shipping and processing fees.
Occasionally, we may offer special promotions to our customers that we refer to as "special offers" or "special offer". This can include a gift with purchase, free shipping, manufacturer offers, or other promotional activity associated with a product purchase. These offers may be for a limited time only.
The Site may include open source components, which are licensed for use and distribution under applicable open source licenses. Use of any open source components is governed by and subject to the terms and conditions of the applicable open source license.
LINKS TO OTHER WEBSITES
We periodically schedule system downtime for the Site for maintenance and other purposes. Unplanned system outages also may occur. You agree that We have no responsibility and are not liable for: (a) the unavailability of any part of the Site; (b) any loss of data, information or materials caused by such system outages; (c) the resultant delay, mis-delivery or non-delivery of data, information or materials caused by such system outages; or (d) any outages caused by any third parties, including without limitation any companies or servers hosting the Sites, any Internet service providers or otherwise.
RISK OF LOSS
All items purchased from the Site are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
From time to time there may be information on our Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We endeavor to be as accurate as possible, however mistakes and omissions do happen. We do not warrant that product descriptions or other content on the Site are all accurate, complete, reliable, current, or error-free. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order). If you do not wish to continue your purchase after pricing or other information has been corrected, please contact us right away and we will work with you to cancel or return your order.
RELIANCE ON INFORMATION POSTED
The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
This Site may include content provided by third parties, including materials provided by other users (see User Generated Content), third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect Our opinion. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
To the fullest extent permitted by applicable law, You agree to indemnify and hold Us, our Affiliates, agents and licensors harmless from any claims costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney's fees and legal costs) of any kind or nature, made by any third party due to or arising out of (i) your use of the Site, including any User Generated Content you submit, post to or transmit through the Sites, (ii) your violation of these Terms, (iii) your infringement of the intellectual property rights of any third party; and (iv) your violation of any rights of another user. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
DISCLAIMER & LIMITATION OF LIABILITY
THIS SITE AND ALL CONTENT AVAILABLE ON THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE, BY YOUR USE OF THIS SITE THAT YOUR USE IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE, AND THAT KELLVIN AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, OWNERS, LLC MEMBERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS ("AFFILIATES") SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THIS SITE OR OUR MOBILE APPLICATIONS.
IN PARTICULAR AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KELLVIN AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE, OR THE CONTENT OF THE SITE OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KELLVIN AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KELLVIN OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR RELATING TO THE SITE OR MOBILE APPLICATIONS, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any warranty or limit our liability, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
ARBITRATION AGREEMENT & WAIVER OF CERTAIN RIGHTS
You and Kellvin agree that, except as set forth below, we will resolve any disputes between us (including any disputes between you and a third-party agent of Kellvin) through binding and final arbitration instead of through court proceedings. You and We hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and Us or you and a third-party agent of Kellvin (a "Claim") will be resolved exclusively by final and binding arbitration in accordance with the Rules of the American Arbitration Association ("AAA Rules"). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. The Federal Arbitration Act and federal arbitration law apply to this agreement. However, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of these Terms including, but not limited to, a claim that all or any part of these Terms is void or voidable.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, We will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
Sole Exceptions To Arbitration
Notwithstanding the foregoing, in lieu of arbitration: (1) either you or We can bring an individual claim in small claims court in the United States of America consistent with any applicable jurisdictional and monetary limits that may apply, provided that it is brought and maintained as an individual claim; and (2) you agree that you or We may bring suit in court to enjoin infringement or other misuse of intellectual property rights. This arbitration agreement does not preclude you or Us from seeking action by federal, state, or local government agencies. In addition, you and We retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
Jury Trial And Class Action Waiver
Neither you nor We may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or Our individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. If for any reason a claim proceeds in court rather than in arbitration you and We each waive any right to a jury trial. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Terms. The arbitrator may award in the arbitration the same damages or other relief available under applicable law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a "public injunction" and any such "public injunction" may be awarded only by a federal or state court. If either party seeks a "public injunction," all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a "public injunction" in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party's claim or prayer for "public injunctive relief." In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. This Section of the Terms will survive the termination of your relationship with Kellvin.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
You and We agree that any claim between us involves commerce under, and is governed exclusively by, the Federal Arbitration Act ("FAA") and federal law, and not by any state or local laws, or the laws of other countries, concerning or purporting to place limits on the availability or scope of arbitration or in any way imposing requirements beyond or inconsistent with those set forth in the FAA. Where otherwise applicable, the laws of the State of New York apply, without regard to its principles of conflicts of law.
Your ability to access and use the Site remains in effect until terminated in accordance with these Terms. You agree that Kellvin, in its sole discretion, may terminate your account and your use of the Site and may remove and delete your User Generated Content if We believes that you have violated or acted inconsistently with these Terms or for any other reason. We also may in our sole discretion, and at any time, discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site may be effected without prior notice and you acknowledge and agree that We may bar any further access to the Site. Further, you agree that We will not be liable to you or any third-party for any termination of access to the Site.
The provisions of the sections of the Terms entitled ELECTRONIC COMMUNICATIONS, INTELLECTUAL PROPERTY, YOUR USE OF THE SITE, PROHIBITED USES, USER GENERATED CONTENT, USE OF SOCIAL MEDIA TAGS, RISK OF LOSS, RELIANCE ON INFORMATION POSTED, INDEMNITY, DISCLAIMER & LIMITATION OF LIABILITY, ARBITRATION AGREEMENT & WAIVER OF CERTAIN RIGHTS, GOVERNING LAW, together with and any other rights and obligations which by their nature are reasonably intended to survive such termination, will survive any termination of these Terms.
NOTICE TO CALIFORNIA RESIDENTS
California Proposition 65 requires that special warnings be provided when products contain chemicals known by the State of California to cause cancer, birth defects, or other reproductive harm if the use of those products may cause exposure to those chemicals above specific limits. Please contact Us prior to ordering if you have any questions regarding the safety of these products.
Pursuant to California Civil Code Section 1789.3, We provide users of the Site with the following notice: You may report complaints to the Consumer Information Division of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 800-952-5210.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
We strive to make our Site content accessible and user-friendly. If you are having difficulty viewing the content on this Site or navigating the site, please email our team at firstname.lastname@example.org, and we will be happy to assist you.
Please report any violations of these Terms to Us email@example.com.
If you have questions, comments or complaints about these Terms or the Sites, please contact us firstname.lastname@example.org.