Kinship Terms of Use

Last Revised: November 12, 2019

These terms of use ("TOU" or “Terms of Use” or “Terms”) govern your use of our website and our mobile app (together, the “Site”) and the services, features, content and applications on the Site (collectively, the “Services” or “LOVEKINSHIP”). By visiting or using the Site, you expressly agree to these TOU, as updated from time to time. If you do not agree with these TOU, please do not access and/or use our Services.

Some of our Services may be offered to you from time to time that are subject to additional terms and conditions, which are incorporated by reference into these TOU. If there is a conflict between these TOU and such other additional terms and conditions, such other additional terms and conditions will govern. 

Because our Services are evolving over time, we may make changes to these TOU at any time and/or discontinue all or any part of our Services in our sole discretion with or without notice. Any changes we make to these TOU will be effective immediately when we post a revised version of these TOU on the Site. The "Last Revised" date above will tell you when these TOU were last revised. By continuing to use this Site after that date, you agree to the changes.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1. Age Requirement
The Site is not intended for children under the age of 13 and no person under the age of 13 may use the Site. If you use the Site, you affirm that you are at least 13 years old. If you are over the age of 13 but under the age of 18, your use of our Site is subject to parental consent requirements. We may, in our sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time.

The right to access the Site is revoked where these Terms or use of the Site is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.

2. Privacy
Please refer to our Privacy Policy for information about how we collect, use, disclose and otherwise process information about you. Our Privacy Policy can be found at https://lovekinship.com/pages/privacy-policy. Our Privacy Policy is incorporated into these Terms of Use. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.

3. Account Registration; Use of the Site
Users may create an account through our Site through the Login/Account page. Here, in a password protected page, Shopify stores information about a customer's identity, order history, and current order status. Customer details, such as address information, will be pre-filled from the stored information during checkout. https://help.shopify.com/en/manual/customers/customer-accounts

Our Site is owned and controlled by Kinship, Inc., and unless otherwise agreed in writing, all materials on our Site, including text, graphics, content, images, illustrations, designs, icons, photographs, video, music, artwork, icons, computer code and other materials, and the copyrights, trademarks, and/or other intellectual property rights in such materials (collectively, the “Content” and the Content in the Site “Site Content”), are owned, controlled and/or licensed by Kinship.

The Site and Site Content are intended solely for personal, non-commercial use. You may download or copy the Site Content and other downloadable materials displayed on the Site for your personal use only. No right, title or interest in any downloaded or copied Site Content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, perform, alter, modify, create derivative works from, sell or exploit or otherwise use any of the Site Content or the Site for any public or commercial purpose.

Certain trademarks, trade names, service marks and logos used or displayed on this Site are registered and unregistered trademarks, trade names and service marks of Kinship. Other trademarks, trade names and service marks used or displayed on this Site are the registered and unregistered trademarks, trade names and service marks of third parties. Nothing contained on any Site grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to you to use any such trademarks, trade names, service marks or logos displayed on such Site.

You may use our Site only as permitted by these Terms and only in a manner consistent with all applicable federal and state laws, rules and regulations, and generally accepted practices or guidelines in relevant jurisdictions, including any laws governing the export of data to or from the United States.

We grant you a limited, conditional, no-cost, non-exclusive, non-transferable, non-sub-licensable license to view or use this Site and its Content as permitted by these TOU, and as a condition precedent, you agree that you will not:

(a) take any action that imposes an unreasonable load on the Site’s infrastructure of the Site or our systems or networks; (b) use any device, software, technology or method to interfere or attempt to interfere with the proper working of the Site, Site Content, or any activity being conducted on the Site; (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Site; (d) gain or attempt to gain unauthorized access to any portion or feature of the Site, or any other system or network connected to the Site or to any of our business partners’ servers, systems or networks, by hacking or any other illegitimate method of accessing data; (e) delete or alter any material we or any other person or entity posts on the Site; (f) impersonate or pretend that you are any other person or falsely claim you represent another person; or (g) otherwise take any action in violation of our guidelines and policies.

4. Third Party Links on Our Site
The Site may contain links to third party sites, services or other resources on the Internet that are not owned or operated by us. The fact that we may link to those websites does not indicate any approval or endorsement of those websites. We have no control over those websites. We are not responsible for the content of those websites, or the privacy practices of those websites. We strongly encourage you to become familiar with the terms of use and practices of any linked websites. Your use of other websites is at your own risk and is subject to the terms of those websites. It is up to you to take precautions to ensure that whatever links you select or software you download (whether from the Site or other websites) is free of viruses, worms, Trojan horses, defects, date bombs, time bombs and other items of a destructive nature.  You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through any third party websites.

5. Mobile Services
If you access the Site via your mobile phone (through an iPhone application, for example), we do not currently charge for this access. Additionally, you may receive text messages or calls from us related to certain products or services. Please be aware that if you access the Site via your mobile phone or provide a mobile phone number to us in order to be contacted by voice or text message, your carrier's normal rates and fees, such as text messaging fees or data charges, will still apply. We will not be responsible for any text messaging or other wireless charges incurred by you or by a person who has access to your wireless device or telephone number. You may not receive our alerts if your carrier does not permit text alerts. Also, you may opt out of any alerts as specifically provided by any 3rd party provider. Your carrier may not allow you to use pre-paid phones or calling plans to receive alerts. We are not responsible for the accuracy of any information displayed in our mobile messaging, for any mis-delivery or untimely delivery of any mobile messaging, or your deletion or failure to store any mobile messaging from us. To find out more about how we use information regarding your mobile device, including your phone number, review our Privacy Policy.

6. Transactions
We use third-party payment processor(s) (each, a "Payment Processor") to process all payment transactions on our Site. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these TOU. We are not responsible for errors made by the Payment Processor. By choosing to make transactions through our Site, you agree to pay through the Payment Processor, all charges at the prices then in effect for your purchase in accordance with the applicable payment terms and you authorize us, via the applicable Payment Processor, to charge your payment provider ("Payment Method"). These charges for your purchase may include shipping fees and state and local sales tax. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. You understand and agree that  all items you place in your shopping cart are not reserved and are subject to availability until checkout is complete.

Violation of these TOU
We may investigate any violations of these TOU, including unauthorized use of the Site. We may take legal action that we feel is appropriate. You agree that monetary damages may not provide us a sufficient remedy and that we may pursue injunctive or other relief for your violation of these TOU. If we determine that you have violated these TOU or the law, or for any other reason or for no reason, we may [cancel your account, delete all your User Content and] prevent you from accessing the Site at any time without notice to you. If that happens, you may no longer use the Site or any Content. You will still be bound by your obligations under these TOU. You agree that we will not be liable to you or any third party for termination of your access to the Site or to your account or any related information, and we will not be required to make the Site or your account or any related information available to you. We may refuse to honor pending and future transactions made from all accounts we believe may be associated with you.

You agree that your abusive use of the Site may cause damage and harm to us, including impaired goodwill, lost sales and increased expenses. You also agree that monetary damages for your abusive use of the Site are difficult to determine and that you, and those acting with you, will be jointly and severally liable for liquidated damages.

Limitation of Liability
IN NO EVENT WILL WE OR OUR SUPPLIERS, PROVIDERS AND LICENSORS, BE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR, AND YOU HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OTHER THAN OUT OF POCKET EXPENSES, AND ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED, ARISING OUT OF OR IN CONNECTION WITH THE SITE OR APPS, THE USER CONTENT AND DATA, OR ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SITE OR APPS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM IS BASED UPON ANY CONTRACT, TORT, OR OTHER LEGAL OR EQUITABLE THEORY. WITHOUT LIMITING THE FOREGOING, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT WE WILL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR:

(a) ANY FAILURE OF ANOTHER USER OF THE SITE TO CONFORM TO THE CODES OF CONDUCT,
(b) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, WHETHER ARISING IN CONTRACT OR IN TORT, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SITE,
(c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN,
(d) ANY BUGS, VIRUSES, WORMS, TROJAN HORSES, DEFECTS, DATE BOMBS, TIME BOMBS OR OTHER ITEMS OF A DESTRUCTIVE NATURE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SITE OR APPS, OR
(e) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT.

THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE ALLOCATION OF RISK BETWEEN US IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THESE MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL ATTORNEYS' FEES BE AWARDED OR RECOVERABLE.

Disclaimer of Warranties
WE PROVIDE THE SITE AND THE CONTENT TO YOU "AS IS" AND "AS AVAILABLE". WE TRY TO KEEP THE SITE UP, BUG-FREE AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT GUARANTEE THAT THE SITE WILL ALWAYS BE SAFE, SECURE OR ERROR-FREE OR THAT THE SITE WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

If any part of these warranty disclaimers or limitations of liability is found to be invalid or unenforceable for any reason or if we are otherwise found to be liable to you in any manner, then our aggregate liability for all claims under such circumstances for liabilities, shall not exceed the lesser of (i) the amount paid by you for your use of the Site during the prior twelve (12) months or (ii) ten dollars ($10).

7. Indemnification
You agree to defend, indemnify and hold harmless Kinship (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers), from all claims, demands, losses, liabilities, costs, expenses, obligations and damages including reasonable legal fees, arising out of (a) your misuse of the Site; (b) your violation of any term of these Terms of Use; (c) a breach of your representations and warranties set forth above regarding Content; (d) your violation of any law or the rights of a third party (including, without limitation, any copyright, property or privacy right); or (e) any claim that any Content you submitted caused damage to a third party. We reserve the right to take exclusive control and defense of any claim, and you will cooperate fully with us in asserting any available defenses. This indemnification obligation will survive the termination of these Terms of Use and your misuse of the Site.

8. Disputes, Including Mandatory Arbitration and Class Action Waiver

9. Arbitration Agreement
By accessing or using the Site, you agree: (i) that any and all disputes you may have with, or claims you may have against Kinship or its affiliates relating to, arising out of or connected in any way with (a) the Site, (b) these Terms, or (c) the determination of the scope or applicability of the agreement to arbitrate in this Section (a “Claim”), will be resolved exclusively by final and binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”), with the following exceptions:

  • You may assert Claims in small claims court if your Claims apply;
  • If a Claim involves the conditional license granted to you as described in these TOU, either of us may file a lawsuit in a federal or state court located within San Francisco, California and we both consent to the jurisdiction of those courts for such purposes; and
  • In the event that the arbitration agreement in these TOU is for any reason held to be unenforceable, any litigation against us (except for small-claims court actions) may be commenced only in a federal or state court located within San Francisco, CA, and we both consent to the jurisdiction of those courts for such purposes.
  • The arbitration agreement in these TOU is governed by the Federal Arbitration Act. It is intended to be broadly interpreted, and will survive termination of these TOU. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these TOU as a court would.
  • To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your Claim. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
  • We each agree that the arbitrator may not consolidate more than one person's Claims, and may not otherwise preside over any form of a representative or class proceeding, and that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. You agree to waive any right to a jury trial or to participate in a class action. If this specific provision is found to be unenforceable, then the entirety of this arbitration section will be null and void and neither of us will be entitled to arbitrate our dispute.
  • You agree that these TOU evidence a transaction involving interstate commerce and will be governed by and construed in accordance with federal law to the fullest extent possible. 

Neither you nor Kinship 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 Kinship individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial.

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 KINSHIP, INC. WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. 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 will continue in full force and effect. This Section of these Terms will survive the termination of your relationship with Kinship.

These TOU and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these TOU.

10. Termination
We reserve the right, in our sole discretion, to restrict, suspend, or terminate these Terms, your account, and your access to all or any part of the Site or the Content at any time and for any reason (including if we believe that you have engaged in any suspected fraudulent or abusive activity, or violated these Terms) without prior notice or liability. These Terms will remain in effect for as long as you are using our Services, or until we or you terminate your account, or we terminate these Terms or remove your access to our Site or Content. We reserve the right to change, suspend, or discontinue all or any part of the Services or the Content at any time without prior notice or liability. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity, limitations of liability, class action waivers and arbitration.

11. Claims of Copyright Infringement On the Site
Under the Digital Millennium Copyright Act (the "DMCA") if you believe in good faith that any content on the Site infringes your copyright, you may send us a notice requesting that the content be removed. The notice must include: (a) your (or your agent's) physical or electronic signature; (b) identification of the copyrighted work on our Site  that is claimed to have been infringed (or a representative list if multiple copyrighted works are included in one notification); (c) identification of the content that is claimed to be infringing or the subject of infringing activity, including information reasonably sufficient to allow us to locate the content on the Site ; (d) your name, address, telephone number and email address (if available); (e) a statement that you have a good faith belief that use of the content in the manner complained of is not authorized by you or your agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that you or your agent is authorized to act on behalf of the copyright owner. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, you may send us a counter-notice. You may read more information about the DMCA at http://www.loc.gov/copyright.

Notices and counter-notices should be sent to:

legal@lovekinship.com, or

Kinship, Inc.
Legal Department
P.O. Box 623
Corte Madera, CA 94976


Miscellaneous
These TOU are the entire agreement between you and us with respect to the Services, including use of the, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these TOU is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these TOU will otherwise remain in full force and effect and enforceable.

The communications between you and KINSHIP use electronic means, whether you use the Services or send us emails, or whether we post notices on the Site or communicate with you via email. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. This does not affect your non-waivable rights. Electronic notices should be sent to legal@lovekinship.com.

Our failure to enforce any part of these Terms of Use shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Use. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Use to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.


Questions
If you have any questions, comments or complaints regarding these TOU or the Site, please contact us at:

Kinship, Inc.
Legal Department
P.O. Box 623
Corte Madera, CA 94976
legal@lovekinship.com