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Kubyo Terms of Service

Effective Date: March 17, 2021

IMPORTANT – READ CAREFULLY: These Terms of Service define the relationship between MGMS LLC ("Kubyo", "We", "Our", or "Us") and You, the person accessing the website located at www.kubyo.com (the “Site”) and/or downloading Our mobile application (the “Kubyo Mobile Application”) and/or registering for the services made available through the Kubyo Mobile Application and/or the Site (“the Kubyo Services”).

Please read these Terms of Service carefully. They include a provision waiving the right to pursue any class, group, or representative claim and requiring You to resolve disputes through arbitration, unless You opt-out within the specified time frame.

By clicking "I agree", or by downloading, accessing, or otherwise using any part of the Kubyo Services, You acknowledge that You are over 18 years of age; are able to form a binding contract with Us; are not a person barred from receiving services under the laws of the United States; and agree to be bound by, and strictly adhere to, these Terms of Service as of the date of Your electronic sign up and agreement to abide by the Terms of Service (the “Effective Date”). If You do not agree to these Terms of Service, do not access or use the Kubyo Services.

Each party is individually referred to herein as a "Party" and collectively as the "Parties".

1. Definitions

a. "Intellectual Property Rights" means all patents, patent rights, inventions (whether patentable or not), design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, and trade secret rights, and all other intellectual property rights and derivatives thereof.

b. "Kubyo" refers to MGMS LLC and its subsidiaries, divisions, affiliated companies, other corporate entities under common ownership, and all of their officers, directors, owners, employees, agents, representatives, and assigns.

c. "Kubyo Mobile Application" means the mobile application provided by Kubyo.

d. "Kubyo Services" means the services made available through the Kubyo Mobile Application and/or the Site, and/or any other applicable platforms and/or devices, including all related documentation, updates, patches, and upgrades.

e. "Personal Information" means any identifying information which You submit through the Site, the Kubyo Mobile Application, and/or the Kubyo Services.

f. "Site" means www.kubyo.com.

g. "Terms of Service" means these Terms of Service.

h. "We," "Our," or "Us" refers to Kubyo.

i. "You" or "Your" refers to you.

We collect, use and are responsible for certain personal information about you, that identifies, relates to, describes, is reasonably capable of being associated with you, or that which could reasonably be linked, directly or indirectly, with a particular consumer or household. We collect, and have collected personal information about our visitors within the preceding 12 months in the following categories:

2. Changes to these Terms of Service and/or the Kubyo Services.

Kubyo may, in its sole discretion and without prior notice, revise or modify these Terms of Service at any time by posting the revised Terms of Service with the updated date. Such revisions will be effective immediately upon such posting, and You agree to be bound by such revisions or modifications. The most current version of the Terms of Service will be available on the Site and the Kubyo Mobile Application. You are responsible for viewing the Terms of Service periodically. Your continued use of the Kubyo Services after a change or modification to the Terms of Service will constitute your acceptance of the revised Terms of Service. In the event that You do not agree to the updated Terms of Service, Your sole remedy is to discontinue Your use of the Kubyo Services and to cancel any account that You have registered in connection with the Kubyo Services. No amendment or modification to these Terms of Service will be binding unless or posted to the Site and Kubyo Mobile Application, or in writing and signed by Our duly authorized representative. In addition, Kubyo may, in its sole discretion, update, modify, edit, suspend, restrict access to, limit the availability to any person, geographic area, or jurisdiction, discontinue, or terminate Your access to the Kubyo Services at any time, with or without notice, and without liability for any reason or no reason at all. You agree that Kubyo will not be liable to You or any third party for any limitation, disruption, or termination of access to the Kubyo Services, or modification or discontinuance of the Kubyo Services.

3. Privacy Policy and Terms.

Kubyo respects Your privacy and permits You to control the treatment of Personal Information, including but not limited to Your name, address, telephone number, e-mail address, and other identifying information. The collection, use, and disclosure, if any, of information collected from You in connection with Your use of the Site, the Kubyo Mobile Application, and/or Kubyo Services is detailed in Our Privacy Policy. Additional terms shall govern Your use of the Site. A complete statement of Kubyo’s current Terms applicable to use of its Site can be found by clicking here. Kubyo’s Privacy Policy and Terms are expressly incorporated into these Terms of Service by this reference. In the event of any conflict between these Terms of Service and any provision contained in the Terms, the Terms shall control. You agree that these Terms of Service, together with Kubyo’s Privacy Policy and Terms govern Your use of the Site, the Kubyo Mobile Application, and/or the Kubyo Services, and supersede any proposed or prior agreement, oral or written, and any other communications between Us relating to Your access or use of the Site, the Kubyo Mobile Application, and/or the Kubyo Services.

4. Term and Termination.

These Terms of Service shall begin on the Effective Date and continue to be in force and effect for so long as You use the Site, the Kubyo Mobile Application, and/or the Kubyo Services. Upon termination, You shall cease all use of the Site, the Kubyo Mobile Application, and/or the Kubyo Services, including any materials received through the Kubyo Services.

5. Registration and Account Information.

To access the Kubyo Services, You understand and agree that You must provide the equipment (computer, mobile device, tablet, etc.) necessary to connect to the Kubyo Services, at Your own expense. Further, You are solely responsible for any fees, including Internet service/connectivity, mobile fees, service plans, and/or data fees to access and use the Kubyo Services. You understand and agree that Kubyo may contact You via in app notifications through the Kubyo Mobile Application.

a. Guest Access: You may view current offers as a guest through the Site and/or the Kubyo Mobile Application, without registering for an account. However, most functionalities of the Kubyo Services will be unavailable to You.

b. Kubyo Account: To gain access to the functionalities of the Kubyo Services, either through the Site and/or the Kubyo Mobile Application, You must create an account by providing complete and accurate information requested on the registration form, including by providing Your U.S. mobile phone number. Kubyo will send You an SMS text with a code, which You will then enter to register Your device. Each user is permitted to register and use only one device. To create an account, You will be asked to provide the following information to create an account: first name, last name, email address, state of residence, and specify the account type (personal or business). You may have the option to add a profile picture. If You provide any information that is not true, inaccurate, incomplete, or in the event that we have reasonable grounds to suspect the above, We reserve the right to terminate Your account and refuse access to the Kubyo Services. You may also be asked to provide a username and password. You are solely responsible for maintaining the confidentiality of Your password. You may not use the account, username, or password of someone else at any time. You agree to notify Kubyo immediately regarding any unauthorized use of Your account, user name, and/or password. Kubyo will not be liable for any loss that You incur as a result of someone else using Your account, user name, and/or password, either with or without Your knowledge. You may be held liable for any losses incurred by Kubyo due to someone else’s use of Your account, user name, and/or password. You shall not have more than one account at any given time, and agree to not create an account using any false information, or on behalf of someone else. Initially, within an account, You will have access to certain offers. Access to additional offers may be offered to individuals or other corporate accounts who in Kubyo’s sole discretion, meet its additional requirements.

6. Beta Launch.

During the initial beta launch of the Kubyo Mobile Application, not all functionalities, such as the payment platform, will be available to You. During the beta phase, no payments will be earned nor paid to You. Any payment amounts shown as earned or otherwise posted in Your account will be for testing purposes only. You may not share the download with others. The additional restrictions outlined in these Terms of Service shall apply to Your use of the Kubyo Mobile Application during the beta phrase. You may not share the download with others.

7. Fees.

Currently, Kubyo offers the Kubyo Mobile Application and the Kubyo Services for free. However, in the future, Kubyo may add subscription services, in-app purchases, or build in other fees to the Kubyo Mobile Application and/or the Kubyo Services effective immediately upon Your receipt of notice of such change; provided, that, such fee changes will only be effective as to usage of the Kubyo Mobile Application and/or the Services that occur after the effective date of the relevant fee change.

8. Limited License.

Subject to Your compliance with these Terms of Service, Kubyo grants You a non-exclusive, non-transferable, non-sublicensable, revocable, and limited license to install one copy of the Kubyo Mobile Application per Apple or Android OS device that You own or control, and to access and use the Kubyo Services. Further, Your use of the Kubyo Services shall be only as permitted by the applicable Terms of Use for the Apple Store, Google Play App Store, Amazon App Store for Android, and/or any other app store through which it is made available. With the exception of this limited license, You understand that there is no grant of any right, title, or interest in the Kubyo Services. All rights not specifically granted under this license are reserved by Kubyo. You hereby acknowledge that Your license to use the Kubyo Services is limited by these Terms of Service, and, in the event of any breach of these Terms of Service, that Kubyo may immediately terminate Your license. In the event that the Kubyo Services, or any part thereof, are illegal, or determined to be illegal, under the laws of the country in which You are situated, You must refrain from using the Kubyo Services. Persons who choose to use the Site, the Kubyo Mobile Application, and/or the Kubyo Services from other countries outside of the United States do so on their own initiative, and are responsible for compliance with their local laws.

9. Your Responsibilities; Representations and Warranties.

To the extent that any links, offers, or other materials are made available to You through the Site, the Kubyo Mobile Application, and/or the Kubyo Services, You acknowledge that You will use such links, offers, or other materials in accordance with these Terms of Service. Any use or reliance on any such materials is at Your own risk. Kubyo does not endorse, support, represent, warrant, or guarantee the accuracy or reliability of any such links, offers, or other materials provided through the Site, the Kubyo Mobile Application, and/or the Kubyo Services. Any links, offers, or materials which You elect to share as an offer through the Kubyo Services shall be at Your sole risk. You will not engage in any activities in or through the Kubyo Services that are illegal, infringing, defamatory, obscene, offensive, or otherwise objectionable.

When accessing and/or using the Kubyo Services, You hereby represent and warrant that You will comply with all U.S. and foreign laws, rules, regulations, and industry standards and guidance applicable to Your use of the Kubyo Services, including, but not limited to the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”), the Federal Trade Commission Act (“FTC Act”), all FTC rules, regulations, and guidelines, the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101 et seq., and the CAN-SPAM Act of 2003, as amended, together with any analogous state rules or regulations relating to online advertising, affiliate marketing, and telemarketing. You further represent and warrant that all information that You provide to Us is accurate and truthful.

You must disclose that You are being paid for Your promotion of the offers.

Kubyo imposes certain restrictions on Your use of the Kubyo Services. You further represent and warrant that You shall not and shall not permit, encourage, facilitate, or support the following activities:

a. allow others to use Your account to distribute offers;

b. make false or misleading statements, including but not limited to those regarding Your affiliation with any person or entity, or use or provide any false, fraudulent, misleading, or inaccurate information to Us;

c. use the Kubyo Services to advertise false information;

d. alter any links, offers, pre-populated messaging, or other materials provided in connection with any offers through the Kubyo Services;

e. fail to abide by offer-specific restrictions, including but not limited to sharing links, offers, or other materials on any channels which are restricted by the offer;

f. fail to disclose that any shared links lead to a sponsored ad which financially benefits You;

g. remove "sponsored" from approved offer messaging, offers, or other materials;

h. share links, offers, or other materials with individual(s) through the Kubyo Services that have requested not to receive them or be contacted;

i. share links, offers, or other materials via text or SMS without the individual recipient’s prior express written consent.
To the extent that You share links, offers, or other materials with Your contacts through the Kubyo Services via text or SMS, You represent and warrant that You have obtained the individual recipient(s)’ prior express written consent to receive messages and to be contacted.

j. copy or create derivative works of the Kubyo Services, or otherwise infringe Kubyo’s Intellectual Property;

k. copy or create derivative works of any of the links, offers, or other materials belonging to third parties, or otherwise infringe third party Intellectual Property;

l. use fraudulent means to generate payments or disseminate offers through the Kubyo Services;

m. use the Kubyo Services in violation of any applicable laws and regulations;

n. use the Kubyo Services in violation of any third party rules, terms, policies, and any subsequent updates thereto, including by not limited to any social networking site(s) such as Facebook, Facebook Messenger, Twitter, WhatsApp, Instagram, etc.;

o. sell, rent, lend, lease, license, sub-license, distribute, transfer, or otherwise allow third party access to any portion of the Kubyo Services, including, but not limited to, by sharing Your username and/or password;

p. violate or attempt to violate any security features of the Kubyo Services;

q. access content or data not intended for You, or log onto a server or account that You are not authorized to access;

r. attempt to probe, scan, or test the vulnerability the Kubyo Services, or any associated system or network, or to breach security or authentication measures without proper authorization;

s. interfere or attempt to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus through the Kubyo Services, overload, “flood,” “mail bomb,” or “crash”;

t. use, post, transmit, or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Kubyo Services;

u. modify, remove, disable, or circumvent any proprietary notices or labels, copyright, logo, trademark, or any other intellectual property notices contained on or within the Kubyo Services; or

v. attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used to provide the Kubyo Services.

Any violation of the above responsibilities and restrictions shall constitute a breach of these Terms of Service, and Kubyo shall have the ability to terminate Your access to the Kubyo Services and withhold any payments earned in breach. Further, violations may subject You to civil and/or criminal liability. You agree that a breach of these Terms of Service, including the license granted hereunder, will cause the risk of irreparable injury to Kubyo, for which monetary damages would not be an adequate remedy and that Kubyo shall be entitled to seek equitable relief, in addition to the other remedies it may have under applicable law.

10. Payments Earned Through the Kubyo Services.

By disseminating offers made available to You through the Kubyo Services, You can earn payments. Payment are offer-specific, and may be listed on a “cost per sale” basis, or on a “cost per lead” basis for each offer. Pending payment amounts earned through Your account will be visible through the “wallet” function of the Mobile Application. Please note that the wallet balance may fluctuate based on advertiser returns. You acknowledge that Kubyo is not responsible for payment of any amounts due to You in the event that the applicable advertiser withholds or refuses payment. Final determination of payment amounts will in the applicable advertiser’s discretion. Payments earned through the Kubyo Services will lock fourteen (14) days after the end of the month in which the payments were earned. Upon locking, You may request withdrawal of earned payments and can initiate a transfer of funds from Your Kubyo account via ACH or Paypal. Kubyo may set a minimum withdrawal amount. Further, in the event that You withdraw an aggregate amount of $300 or more from the Kubyo Services, You are required to submit W9 information. In the event of any breach of these Terms of Service, including but not limited to any breach of Your representations and warranties, Kubyo shall have the right and sole discretion to withhold any payments earned in breach.

11. Third Party.

If You download or access the Kubyo Services from a third party platform or app store, including but not limited to the Apple Store, Google Play App Store, Amazon App Store for Android, and/or any other app store, You must comply with the applicable third party’s terms. Please note that You may need to update third party software to access the Kubyo Services. Further, the Site, the Kubyo Mobile Application, and/or the Kubyo Services may contain links to third party websites, or provide a means of access to interact with third party applications that are not owned nor controlled by Kubyo. Kubyo has no control over, and no liability for any third parties, third party websites, or materials. Kubyo works with a number of partners and affiliates whose websites may be linked through the Kubyo Services. Kubyo has no control over the content and performance of these partner and affiliate sites and therefore Kubyo makes no guarantees about the accuracy, currency, content, or quality of the information provided by such third party sites. Kubyo assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those third party sites. Further, certain Personal Information may be stored on third party platforms. You are responsible for reading the terms of use and privacy policies of third parties. Kubyo is not affiliated with any third party that You may link to or access through the Kubyo Services. However, please note that Kubyo and You may receive a payable commission from such third parties. You expressly agree to indemnify Kubyo from any claims You may have against a third party that You linked to or accessed through the Kubyo Services.

12. Use of Identifying Information.

You acknowledge and agree that if We reasonably determine that disclosure of identifying information, or other Personal Information, is necessary to comply with any law, rule order, subpoena, civil or criminal investigative request or demand, discovery request or any other legal requirement, or in response to a complaint or inquiry, that We may disclose such information to comply with such request.

13. Intellectual Property Ownership.

You acknowledge and agree that Kubyo owns all right, title, and interest in and to the Site, the Kubyo Mobile Application, and/or the Kubyo Services, including, without limitation, any derivatives, improvements, enhancements or extensions conceived, reduced to practice or otherwise developed by Kubyo, together with all Intellectual Property Rights relating thereto. Kubyo owns the rights to all text, graphics, user interfaces, visual features, functionalities, features, and code contained in the Site, the Kubyo Mobile Application, and/or the Kubyo Services. Kubyo also expressly reserves any and all rights not expressly and explicitly granted in these Terms of Service, including, but not limited to, its right to enter into other agreements with other customers regarding the Kubyo Services. These Terms of Service are not a sale and do not convey any rights to You, including any rights of ownership in the Kubyo Services. Your rights hereunder are strictly limited as set forth herein. You acquire no right, title, or interest therein other than the right to use the Kubyo Services in accordance with these Terms of Service. You hereby assign to Kubyo all right, title and interest in and to any improvements, enhancements, derivations or modifications to the Kubyo Services developed, in whole or in part, as a result of Your use of the Kubyo Services or any ideas, suggestions, feedback, comments, or reports received from You.

14. Confidentiality.

You acknowledge that the Kubyo Services contain valuable trade secrets and confidential information, including but not limited to, the architecture and functionality, and the appearance, organization, design, content, and flow of such. Except as otherwise specified herein, You agree not to share, disclose or transfer, and not to permit a third party to share, disclose or transfer any of Kubyo’s confidential information.

15. Indemnification.

You will indemnify, defend, and hold harmless Kubyo from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorney’s fees) arising out of or related to: (a) Your breach of these Terms of Service, including but not limited to any breach of its representations and warranties; (b) a claim by a third party alleging that Your use of the Site, the Kubyo Mobile Application, and/or the Kubyo Services violates any applicable law; (c) any other claim arising out of or related to Your use of the Site, the Kubyo Mobile Application, and/or the Kubyo Services; (d) Your violation of any applicable law or regulation or right of a third party; and (e) Your acts and omissions. You further agree to reimburse Kubyo for any costs (including its attorney’s fees) incurred in receiving, managing, and/or responding to any claim arising out of or related to Your use of the Site, the Kubyo Mobile Application, and/or the Kubyo Services, and You agree to cooperate with Kubyo and its requests.

16. Disclaimer.

YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE, THE KUBYO MOBILE APPLICATION, AND/OR THE KUBYO SERVICES ARE AT YOUR SOLE RISK. THE SITE, THE KUBYO MOBILE APPLICATION, AND/OR THE KUBYO SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES AS TO RELIABLILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, COMPLETENESS, TITLE OR INFRINGEMENT OR THIRD PARTY RIGHTS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. KUBYO DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS THAT YOU MAY OBTAIN BY USING THE SITE, THE KUBYO MOBILE APPLICATION, AND/OR THE KUBYO SERVICES. KUBYO DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE, THE KUBYO MOBILE APPLICATION, AND/OR THE KUBYO SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KUBYO DOES NOT WARRANT THAT THE SITE, THE KUBYO MOBILE APPLICATION, AND/OR THE KUBYO SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOUR INTERACTIONS WITH THIRD PARTIES ARE SOLELY AT YOUR OWN RISK.

17. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS MGMS LLC AND ITS SUBSIDIARIES, DIVISIONS, AFFILIATED COMPANIES, OTHER CORPORATE ENTITIES UNDER COMMON OWNERSHIP, AND ALL OF THEIR OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, AND ASSIGNS (THE “RELEASED PARTIES”), FROM ANY AND ALL LIABILITY, LOSS, HARM, DAMAGE, INJURY, COST, OR EXPENSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE AND PERSONAL INJURY, WHICH MAY OCCUR, IN WHOLE OR IN PART, DIRECTLY, OR INDIRECTLY, IN CONNECTION WITH YOUR USE OF THE SITE, THE KUBYO MOBILE APPLICATION, AND/OR THE KUBYO SERVICES, AND FOR ANY CLAIMS OR CAUSES OF ACTION BASED ON PUBLICITY RIGHTS, DEFAMATION, INVASION OF PRIVACY, AS WELL AS FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO ANY PROPERTY OR EQUIPMENT, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SITE, THE KUBYO MOBILE APPLICATION, AND/OR THE KUBYO, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE), AND EVEN IF KUBYO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KUBYO WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND ARISING FROM YOUR USE OF THE SITE, THE KUBYO MOBILE APPLICATION, AND/OR THE KUBYO SERVICES, OR THE RELATIONSHIP OF THE PARTIES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, KUBYO’S LIABILITY IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, THE KUBYO MOBILE APPLICATION, AND/OR THE KUBYO SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE, THE KUBYO SERVICES, AND UNINSTALL THE KUBYO MOBILE APPLICATION.

18. Export Control.

You acknowledge that the Kubyo Services are or may be subject to export laws and regulations of the United States and the destination country(ies) and any use or transfer of such must be authorized under all applicable laws. You agree to comply with the export laws and regulations of the United States, and agree to not use the Kubyo Services if You are located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting country”, or if You are listed on any U.S. government list of prohibited or restricted parties, including but not limited to the U.S. Treasury Department’s list of Specially Designated Nationals List.

19. Notice.

Kubyo may give notice to You under these Terms of Service by means of notifications through the Kubyo Mobile Application, and/or via email sent to Your email address provided at the time of Your sign-up for the Kubyo Services. Notice may be given to Kubyo via email at support@kubyo.zendesk.com.

20. Force Majeure.

Neither Party shall be liable for any delays or any failure in performance under these Terms of Service due to causes beyond the reasonable control of the non-performing or delayed Party. Such delays include, but are not limited to, fire, explosion, pandemic, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed Party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the non-performing or delayed Party.

21. Relationship of Parties.

The Parties are independent contractors and nothing in these Terms of Service shall be construed as creating a partnership, joint venture, fiduciary, employment, or agency relationship between the Parties. No exclusive relationship exists between the Parties. Neither Party shall be entitled to contract on behalf of the other or bind the other Party in any way.

22. Assignment.

These Terms of Service may not be assigned by You. Kubyo may assign these Terms of Service without Your consent to: (i) a parent or subsidiary; (ii) an acquirer of assets or equity; or (iii) a successor in interest by merger. Any purported assignment in violation of this Section will be void.

23. Governing Law, Arbitration, and Class Action Waiver.

These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflict of laws. Except for injunctive relief claims, any and all controversies and disputes arising out of or related to Your use of the Site, the Kubyo Mobile Application, the Kubyo Services, and/or these Terms of Service, and/or their interpretation, making, performance, breach, validity or termination thereof, shall be settled by binding arbitration in Los Angeles, California by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. Arbitration hereunder shall be conducted by one neutral arbitrator appointed by the AAA. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to this arbitration clause. Any disputes, including any threshold disagreement about the arbitrability of any claim, shall be delegated to the arbitrator (and not a court). At the request of either Party, the arbitrator will enter an appropriate protective order to maintain the confidentiality of information produced or exchanged in the course of the arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. You agree and submit to the personal jurisdiction and venue of any such court of competent jurisdiction. In no event shall the arbitrator have any authority to award punitive or other damages not measured by the prevailing Party’s actual damages, except as may be required by statute. Irrespective of the outcome of arbitration, each Party shall bear its own costs and expenses, including its own attorney’s fees, and an equal share of the arbitrator’s fees and administrative fees of arbitration. The arbitrator shall not determine or award any alternative allocation of costs and expenses, including any attorney’s fees. In the event that this arbitration clause is deemed to be invalid or otherwise unenforceable or illegal, the remaining terms of these Terms of Service shall remain in full force and effect, including the waiver of the right to proceed in a class action. THE PARTIES AGREE TO WAIVE THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS ACTION, CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS AND AGREE THAT ALL FORMS OF CLASS ACTION OR CLASS WIDE ARBITRATION ARE EXPRESSLY PROHIBITED. THE PARTIES UNDERSTAND THEY WILL NOT HAVE THE RIGHT TO A TRIAL BY A COURT OR A JURY AND THAT THE INFORMATION THAT CAN BE OBTAINED IN DISCOVERY FROM EACH OTHER OR FROM THIRD PERSONS IN ARBITRATION IS GENERALLY MORE LIMITED THAN IN A LAWSUIT. IN ADDITION, OTHER RIGHTS THAT THE PARTIES WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Your use of the Site, the Kubyo Mobile Application, the Kubyo Services, and/or these Terms of Service must be brought within one (1) year after such claim or cause of action arose or be forever barred. Any action filed by either Party in any court in violation of this Section should be dismissed pursuant to this Section. You shall have thirty (30) days to opt out of the arbitration and class action waiver provisions contained in this Section. After thirty (30) days, these terms of this Section hereby become final and binding.

24. Severability.

Each provision of these Terms of Service is intended to be severable and the validity, legality, or enforceability of any provision shall not affect the validity, legality, or enforceability of the remainder of these Terms of Service. If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision will be construed to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.

25. Survival.

The above “Intellectual Property Ownership,” “Your Responsibilities; Representations and Warranties,” Indemnification,” “Disclaimer,” “Limitation of Liability,” and “Governing Law, Arbitration, and Class Action Waiver” sections shall survive any termination or expiration of these Terms of Service.

26. Waiver.

The failure of either Party to enforce any right or provision in these Terms of Service will not constitute a waiver of such right or provision unless acknowledged and agreed to the Party in writing.

27. E-Sign Consent.

By clicking the checkbox, You adopt such as Your electronic signature, and consent and agree that Kubyo may provide You with electronic communications and disclosures (collectively, “Communications”) via email at Your email address provided at the time of your sign-up for the Kubyo Services, via in app notifications through the Kubyo Mobile Application, or by making them accessible on the Site; and that Your electronic signature on agreements and documents has the same effect as if You signed them in writing. If You wish to revoke/withdraw Your consent at any time, please delete the Kubyo Mobile Application and cease further use of the Kubyo Services. Withdrawal of Your consent may result in termination of Your access to the Site, the Kubyo Mobile Application, and/or the Kubyo Services. Any withdrawal will be effective only after a reasonable period of time for You to process the withdrawal. As noted above, You are responsible for providing Us with true and accurate information, including Your contact information. To access and retain the Communications, the following are required: computer or mobile device with access/use of the internet or mobile connectivity and an operating system capable of receiving, accessing, and displaying Communications; a supported internet browser; sufficient storage space to save Communications and/or a printer to print them; and a valid email account and software to access such email account. You have the right to receive Communications in paper form. Please contact us at support@kubyo.zendesk.com to request a paper copy of any Communications at no charge. A request will not be treated as a withdrawal of consent to receive electronic Communications.

28. Entire Agreement.

These Terms of Service, together with the Privacy Policy, and Terms, comprise the entire agreement between the Parties and replace and supersede all prior or contemporaneous negotiations, discussions or agreement, whether written or oral, between the Parties regarding the subject matter contained herein.