Kibu Terms of Service

Updated: March 2024

IMPORTANT NOTICE: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT APPLY TO ALL CLAIMS BROUGHT AGAINST KIBU. THEY AFFECT YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THE ARBITRATION PROVISION AND CLASS ACTION WAIVER CONTAINED IN THAT SECTION. PLEASE READ IT CAREFULLY.

OVERVIEW

We are Kibu, Inc (“Kibu”, “we”, “us”, or “our”). We provide a secure end-to-end encrypted collaboration tool that allows small groups of users (“Pods”) to authenticate and to securely share information and content within the Pod or to share such information and content publicly at the Pod’s discretion (the “Service”). These Terms of Service (“Terms”) govern the use by individuals (“you” or “yours”) who we have authorized to use the Service. The Service is provided solely to individuals that are at least 18 years of age.

1. ACCEPTANCE OF TERMS

These Terms are a legally binding agreement. By subscribing to, accessing or using the Service you confirm that (1) you have read these Terms, (2) you are at least 18 years of age, (3) you accept the Terms, and (4) you have read and accept our privacy policy at https://kibu.io/privacy-policy (“Privacy Policy”). If you don’t agree with these Terms, please don’t use the Service.

We reserve the right to change or update these Terms from time to time at our sole discretion. Such changes or modifications will be posted here with an updated “Last Updated” date above. Please review the Terms frequently for any changes. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means, which could include notification through the Service or via email. Your continued use of the Service following the effective date of any changes to these Terms constitutes acceptance of those changes. If you do not agree to the new Terms, you may not use the Service.

2. GENERAL CONDITIONS

We reserve the right to refuse to provide the Service to anyone for any reason at any time. We may change, add, or remove features, products, or functionalities, or we may also suspend or stop the Service altogether. We may take any of these actions at any time for any reason, with or without notice. We are not liable to you or to any third party for any modification, suspension, or discontinuance of the Service. If we have provided the Service for free, we may decide to charge a fee for the Service at any point in the future. 

You represent and warrant that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation.

3. ACCOUNT REGISTRATION

In order or access or use all or certain features of the Service you may be required to create a Kibu account (“Account”) and become a “Registered User” of the Service. During the registration process you will be required to provide certain information and may be required to establish a username or other means of authentication. You agree to provide accurate, current and complete information during the registration process if requested from you and at other times when you use the Service and to update such information to keep it accurate, current and complete. Kibu reserves the right to refuse to keep Accounts for, or provide Service to, any individual, if Kibu has a valid reason thereto. Notwithstanding the foregoing, Kibu does not require you to provide your full legal name as your username on the Service, and you can pick any name you choose by which to be referred to within your Pod. You are responsible for safeguarding your password if you create one. You agree not to disclose Your password to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not you have authorized such activities or actions. You will immediately notify Kibu of any unauthorized use of your Account.

4. PODS

You acknowledge and agree that as a Registered User you will be part of a Pod. The first Registered User to create a Pod will be considered the "Administrator" of that Pod. The Administrator will have the ability to set the baseline rules governing access to and use of your Pod. Kibu will have sole discretion to determine the total number of Registered Users that may be part of each Pod and may change that designation at any time. The current members of a Pod will vote on whether to admit certain individuals as new members of that Pod. In addition, other items regarding the functioning of the Pod will require a vote of the members of the Pod, including but not limited to such matters as: (i) whether to make your Pod’s User Content (as defined below) visible to non-Pod members with whom you share a link by turning on the “Broadcast” function of the Service for such User Content, (ii) how many Pod members are required for any vote to have effect and what actions to take with respect to User Content and (iii) whether to remove a Pod member. Kibu disclaims all liability with respect to what members are and are not admitted to the Pod and all actions taken by the Pod collectively, including with respect to User Content.

You are solely responsible for your interactions with other Registered Users within your Pod. Kibu reserves the right, but has no obligation, to monitor disputes between you and such other users, including with respect to any decision of your Pod to make any User Content publicly available.

5. USER CONTENT

The Service enables you and other members of your Pod to upload, submit or otherwise make available through the Service content to share within your Pod or to make publicly available outside the Service as determined by your Pod. Such content may include, but is not limited to articles, videos, messages, documents, comments and other content (collectively, “User Content”). Any User Content that is shared solely within your Pod will remain in encrypted form and will not be viewable by Kibu or its subprocessors.

You acknowledge and agree that all User Content submitted under your Account or in your name, whether publicly posted or privately transmitted, is your responsibility along with other members of your Pod. This means that you, not Kibu, are entirely responsible for all User Content that you or another Pod member uploads, posts, emails, transmits, or otherwise makes available via the Service. You further represent and warrant that you have all required rights to submit, post, upload or otherwise use or disseminate such User Content without violation of any third-party rights. Under no circumstances will Kibu be liable in any way for any User Content.

Your User Content will be designated as “private” and only shared within your Pod unless your Pod votes to use the Broadcast feature to designate it as “public “ based on the Pod rules set by the Administrator. If your Pod votes to designate User Content as public, such content will be accessible by and be available to anyone to whom you grant access. If you make your User Content “public,” you understand and agree that such users will, depending on the permissions you grant, have the ability to use, publish, display, or duplicate such User Content. You grant Kibu all rights necessary to make any of your publicly designated User Content available to such individuals and to permit those users to engage in the activities described in this Section with respect to your publicly designated User Content.

6. CODE OF CONDUCT

You must use the Service only in compliance with these Terms and applicable law. You may not do, attempt to do, enable, or encourage anyone else to do, anything illegal or (as determined by us) anything objectionable or inappropriate in connection with the Service, including but not limited to the following:

  • use the Service in violation of, or in connection with violating, any applicable law or any legal or contractual rights of us or any third party, or any obligations you may have to any party (including, without limitation, intellectual property rights, privacy or publicity rights, and confidentiality obligations);

  • reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, or use of or access thereto;

  • interfere with, disrupt, or create undue burden on the Service or the networks or services connected thereto by any means;

  • crawl, scrape, or use other automated means like “spiders” and “robots” to access or collect data from the Service;

  • circumvent any of the Service’s security measures, reverse engineer any portion of the Service, obtain any source code, or create back doors or any form of unauthorized access to the Service;

  • upload, email, or otherwise transmit any material that contains viruses, corrupted files, Trojan horses, worms, or any other computer code, software, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment or that may adversely affect the operation of the Service;

  • post or transmit, or cause to be posted or transmitted, or use the Service to display or distribute any User Content that is infringing, libelous, defamatory, abusive, offensive, obscene, pornographic or otherwise violates any law or right of any third party; or

  • use the Service in any way not specifically permitted by these Terms.

If you violate any provisions or restrictions of these Terms, we reserve the right, in our sole discretion and without notice to you, to terminate, delete, and/or deactivate your Account, and/or block or limit your access to the Service. We are not liable to you or any third party for any termination of your account or access to the Service.

7. INTELLECTUAL PROPERTY RIGHTS

We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to create, use and exploit your User Content. Subject to the foregoing, Kibu and its licensors exclusively own all right, title and interest in and to the Service and any content generated or made available by Kibu or its licensors (“Kibu Content”). You acknowledge that the Service and any Kibu Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Kibu Content. Kibu grants you a non-exclusive, non-transferable, and revocable limited license to use the Service consistent with these Terms. Any rights not expressly granted herein are reserved by Kibu and its licensors. Kibu will have no liability to you for any damage or loss arising from unauthorized uses.

By making any User Content available through the Service, you hereby grant Kibu a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, host, cache, store, reproduce, transmit, publicly display, publicly perform, publish, distribute and modify (for formatting purposes only), your User Content solely in connection with operating and providing the Service and Kibu Content to you and, depending on the permission you grant, to other users, individuals, and/or organizations. Subject to the foregoing license, as between Kibu and you, you retain any and all of your rights to your User Content.

8. THIRD-PARTY SERVICES

The Service may contain links to or integrations with third-party websites, platforms, applications, or services (collectively, “Third-Party Services”) that are subject to different terms and privacy practices. Your use of and interactions with any Third-Party Services are governed by the third party’s terms and not by these Terms. You interact with Third-Party Services at your own risk.

We do not own or control Third-Party Services, and we are not responsible or liable for any aspect of such Third-Party Services, including but not limited to any harm or damages related to any interactions or transactions you may have with Third-Party Services (such as any information, content, or materials provided by Third-Party Services). Links and integrations to Third-Party Services are not an endorsement or recommendation.

Please review carefully any third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.

9. COMMUNICATIONS

We may communicate with you using email and text messages, at any telephone number that you provide us, to: (a) notify you regarding your account; (b) troubleshoot problems with your account; (c) resolve a dispute; or (d) as otherwise necessary to service your account or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.

You agree to receive electronic communications from us. These communications may include notices about your account and information concerning or related to the Service. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing, and will have full legal effect.

You also agree that any transaction or agreement undertaken on or through the Service, including your agreement to these Terms, is an electronic transaction or agreement.

We may route phone and text communications through a third-party service provider, and we or the service provider may record telephone conversations you have with us or its agents for quality control and training purposes, or for our own protection or legal compliance purposes.

10. DISCLAIMER OF WARRANTIES

YOUR USE OF OR INABILITY TO USE THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, KIBU EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.

KIBU MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR THAT THE QUALITY OF THE SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED.

YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE SOME OR ALL OF THE SERVICE FOR INDEFINITE PERIODS OF TIME OR CANCEL SOME OR ALL OF THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.

IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICE, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.

CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

11. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO CASE WILL KIBU OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS, SERVICE PROVIDERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KIBU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF THE SERVICE, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.

IN NO EVENT WILL KIBU’S TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED $100.00. 

IF THE JURISDICTION WHERE YOU RESIDE DOES NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF LIABILITY PROVIDED IN THESE TERMS, THAT LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED. 

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KIBU AND YOU.

12. INDEMNITY

To the fullest extent allowed by applicable law, you agree to indemnify, defend, and hold harmless Kibu and its officers, directors, employees, affiliates, agents, contractors, suppliers, service providers, and licensors from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to (i) your use of the Service, (ii) the User Content, (iii) all disputes between or among you and other members of your Pod, other Authorized Users or any individual not admitted to your Pod, (iv) your violation of these Terms, or (v) your violation of any rights of another.  You further agree that you and every other member of your Pod will be jointly and severally liable for all actions and decisions taken by the Pod and for the User Content.

Kibu reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Kibu in asserting any available defenses. This provision does not require you to indemnify Kibu for any unconscionable commercial practice by Kibu or for Kibu's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your account, these Terms or your access to the Service, including the purchase of any items on the Service.

If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.

If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.

13. MANDATORY ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Application

You and Kibu agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.

Initial Dispute Resolution

Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at legal@kibu.io  to and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). This written description must be on an individualized basis. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Kibu, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision, you and Kibu agree to the further dispute resolution procedures below. The parties further agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.

Binding Arbitration

If the informal dispute resolution procedure does not lead to resolution, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided below with respect to intellectual property and small claims) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties' relationship with each other, and/or your use of Kibu shall be finally settled by binding arbitration administered by National Arbitration and Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, and, as applicable, Fees For Disputes When One of the Parties is a Consumer, Comprehensive Fees and Costs, and the Mass Filing Dispute Resolution Rules and Procedures, excluding any rules or procedures governing or permitting class actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com

Arbitrator’s Powers

The arbitrator or arbitration body, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, the question of waiver by litigation conduct, and/or any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

Filing a Demand and Arbitration Procedures

To start an arbitration, you must use the procedures set forth in the applicable NAM rules and send one copy of the Demand for Arbitration to us at: legal@kibu.io .  At minimum, your demand must set forth a detailed description of your claim, including information about your relationship to Kibu, and the amount of any damages you seek to recover. To the extent the Arbitrator finds the costs and fees for the arbitration will be prohibitive for you as compared to the costs of litigation, Kibu will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. 

The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under applicable NAM rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Section 13 while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party's failure to comply with the informal dispute resolution procedure contemplated herein.

The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in California, and you and Kibu agree to submit to the personal jurisdiction of any federal or state court in California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. 

Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.  Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Kibu (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).

Class Action Waiver.

YOU AND KIBU AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE HEREIN, EACH PARTY 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 AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS, UNLESS KIBU PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING. 

If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception: Litigation of Intellectual Property and Small Claims Court Claims 

Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.

Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM against Kibu within reasonably close proximity ("Mass Filing"), the parties agree (i) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each batch; (iii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Kibu and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (vi) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with Kibu and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This "Batch Arbitration" provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless Kibu otherwise consents in writing, Kibu does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth herein. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.

If any court or arbitrator determines that the batch arbitration procedures set forth in this paragraph is void or unenforceable for any reason, then the parties agree that this subsection shall be severed from the Section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply all other provisions in this Section to the maximum extent allowed by law. 

30-Day Right to Opt Out

You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to legal@kibu.io with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of (a) March 31st, 2024; or (b) your first use of the Service, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Kibu also will not be bound by them.

Changes to This Section

Kibu will provide thirty (30) days' notice of any changes to this Section 13 by posting on the Service. Amendments will become effective thirty (30) days after they are posted on the Service or sent to you by email. Changes to this Section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the Section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Service.

Survival

This Mandatory Arbitration and Class Action Waiver Section shall survive any termination of your use of the Service.

14. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

Kibu may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who infringe the intellectual property of others. If you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please provide Kibu’s a written notice containing the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

  • a description of the copyrighted work or other intellectual property that you claim has been infringed;

  • a description of where the material that you claim is infringing is located on the Service;

  • your address, telephone number, and email 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 notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Kibu’s Copyright Agent can be reached in the following ways:

Mail: 

Kibu Inc 

Attn: Copyright Claims 

211 Main Street, 461, Washington VA 22747

Email: 

legal@kibu.io subject, DMCA-1058211

To be valid, a notice must be in writing and must follow the instructions above. You also may use the contact information in this Section to notify us of alleged violations of other intellectual property rights.

15. TERMINATION

Kibu reserves the right at any time to modify, suspend, discontinue, or terminate, temporarily or permanently, some or all of the Service (or any part thereof), with or without notice. You agree that Kibu shall not be liable to you or any third party for any modification, suspension or discontinuance of the Service.

We do not guarantee that any of our Service will be available at all times or at any given time or that we will continue to offer all or any of our Service for any particular length of time. We may change and update our Service without notice to you. We make no warranty or representation regarding the availability of our Service and reserve the right to modify or discontinue the Service in our sole discretion without notice, including for example, ceasing a contest or other Service for technical reasons (such as technical difficulties experienced by us or on the internet) or to allow us to improve user experience. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT ANY OR ALL OF OUR SERVICE MAY BE TERMINATED IN WHOLE OR IN PART AT OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF OUR SERVICE.

Kibu may terminate or suspend your right to access some or all of the Service, without prior notice or liability, if you breach any of the terms or conditions of these Terms or the Kibu Privacy Policy. 

All provisions of these Terms, which by their nature should survive termination, shall survive termination, including, without limitation: Section 7 (Intellectual Property Rights); Section 10 (Disclaimer of Warranties); Section 11 (Limitation of Liability); Section 12 (Indemnity); Section 13 (Mandatory Arbitration and Class Action Waiver); Section 14 (Notice and Procedure for Making Claims of Copyright Infringement); Section 15 (Termination); and Section 16 (General).

16. GENERAL

Section titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.

Non-breach. Our failure to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond our reasonable control shall not be deemed a breach of these Terms.

Non-waiver. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.

Remedies. All remedies under these Terms shall be cumulative and not exclusive.

Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms of use and shall not affect the validity and enforceability of any remaining provisions. 

No Partnership. You and we acknowledge and agree that no partnership is formed and neither you nor we has the power or the authority to obligate or bind the other.

Assignment. You may not assign your rights under these Terms to any third party. We may assign our rights under this Terms without condition.

Entire Agreement. These Terms constitute the entire agreement between you and Kibu and govern your use of the Service, superseding any prior agreements between you and Kibu with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use Third Party Services. 

Governing Law and Venue. These Terms will be governed by the laws of Delaware without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Kibu agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Delaware.

17. CONTACT US

If you have any questions or concerns about these Terms or the Service, or to report any violations of these Terms, please contact us at hello@kibu.io