TERMS OF SERVICE AGREEMENT

 

Introduction

This Terms of Service agreement includes our User Privacy Notice and  all policies posted on our sites set out the terms on which Kava offers you access to and use of our sites, services, applications and tools (collectively “Services”). All policies and the User Privacy Notice are incorporated into this Terms of Service agreement. You agree to comply with all of the above when accessing or using our Services.

The entity you are contracting with is Kava Inc., 20130 Lakeview Center Plaza, Suite 400, Ashburn, Virginia 20147.

Please be advised that this Terms of Service agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes, Section B (“Agreement to Arbitrate”)). Unless you opt out: (1) you will only be permitted to pursue claims against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

 

About Kava

Kava is a marketplace that allows users to offer, sell and buy books in a variety of pricing formats and locations. The actual contract for sale is directly between the seller and buyer. Kava is not a traditional auctioneer. Kava is a (student-to-student, student to student, student2student, peer-to-peer, peer to peer, peer2peer, c2c) textbook solutions application.

While we may provide pricing, listing, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Kava has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.

 

Using Kava

In connection with using or accessing the Services you will not:

  • post, list or upload content or items in inappropriate categories or areas on our applications;
  • breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
  • use our Services if you are not able to form legally binding contracts (for example if you are under 18), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
  • fail to pay for items purchased by you, unless you have a valid reason as set out in an Kava policy, for example, the condition of the book does not match the description given, a clear typographical error is made, or you cannot contact the seller;
  • fail to deliver items sold by you, unless you have a valid reason as set out in an Kava policy, for example, the buyer fails to comply with the posted terms in your listing or you cannot contact the buyer;
  • manipulate the price of any item or interfere with any other user’s listings;
  • post false, inaccurate, misleading, defamatory, or libelous content;
  • take any action that may undermine the feedback or ratings systems (see “Feedback Policies” below);
  • transfer your Kava account (including Feedback) and user ID to another party without our consent;
  • distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
  • distribute viruses or any other technologies that may harm Kava, or the interests or property of users;
  • use any robot, spider, scraper, or other automated means to access our Services for any purpose;
  • bypass our robot exclusion headers, interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
  • export or re-export any Kava application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
  • reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to Kava, or that comes from the Services and belongs to another Kava user or to a third party including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of Kava and/or any other party holding the right to license such use;
  • commercialize any Kava application or any information or software associated with such application;
  • harvest or otherwise collect information about users without their consent; or
  • circumvent any technical measures we use to provide the Services.

Sellers and buyers must meet Kava’s “Minimum Performance Standards” below. Failure to meet these standards may result in Kava limiting, restricting, suspending, or downgrading your account.

If we believe you are abusing Kava in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.

We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.

 

Policy Enforcement

When a buyer or seller issue arises, we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.

 

Fees

Kava charges a 4% fee to both the buyer and seller for each sale/purchase. For example, the Seller would be charged $0.80 from their sale on a book that is sold for $20, and the buyer would be charged an extra $0.80 on top of the $20 for the book. Kava is charged a processing/service fee for each transaction by our third party payment system companies. Kava is also charged for other third party utilities utilized by the application such as SMS notifications. The 4% charges applied to both Seller and Buyer help to cover these charges.

We may change our seller fees from time to time by posting the changes on the Kava site 14 days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.

You must have a payment method on file when selling on Kava and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect fees owed by charging other payment methods on file with us, retaining collection agencies and legal counsel, and, for accounts over 180 days past due, requesting that Venmo deduct the amount owed from your Venmo account balance. In addition, you will be subject to late fees as listed below.

 

Late Fees

If you haven’t paid your amount due by the payment due date each month, you’ll be billed a late payment charge of 1.5% of the balance past due or the highest amount permitted by applicable law, whichever is lower. This fee will be applied on the day after the payment due date. It will be applied each month until the overdue amount is paid.

Kava, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information Kava reported to a credit bureau (i.e., Experian, Equifax or TransUnion) please contact us at Kava Inc., 20130 Lakeview Center Plaza, Suite 400, Ashburn, Virginia 20147. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Kava account, you must contact the collection agency directly.

 

Listing Conditions

When listing an item, you agree that:

  • You are responsible for the accuracy and content of the listing and item offered;
  • Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Kava can’t guarantee exact listing durations;
  • You cannot offer to sell your book outside of Kava.
  • Content that violates any of Kava’s policies may be deleted at Kava’s discretion;
  • We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
  • buyer’s location, buyer’s school, search query, browsing site, and history;
  • item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
  • seller’s history, including listing practices, Detailed Seller Ratings, Kava policy compliance, Feedback, and defect rate;
  • number of listings matching the buyer’s query; and
  • the course information you enter is accurate as of the semester you took the course.

Accordingly, to drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer.

  • We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and current listings; results will vary for individual listings. To drive the recommendations experience, you agree that we may display the sales and performance history of your individual listings to other sellers.

 

Purchase Conditions

When buying an item you agree that:

  • You are responsible for reading the full item listing before making a bid or commitment to buy.
  • You will respond back to the buyer through our messaging system within 24 hours, and you will respect discussed meetup times with the seller.
  • You can’t offer to buy items outside of Kava. Our policies don’t cover items bought outside of our site. If you buy items outside of eBay, we don’t protect you against fraud. Sellers must follow the same rule, so if a seller offers to sell you something outside of eBay, don’t accept the offer.
  • You can’t use Kava if your account contains false contact information. Buyers and sellers sometimes need to be able to get in touch with each other, and we need to be able to contact our members.
  • You enter into a legally binding contract to purchase an item when you commit to buy an item or your bid is otherwise accepted).
  • We do not transfer legal ownership of items from the seller to the buyer.
  • You understand that when searching for your required book by course information, the required book(s) listed may not be accurate. As Kava is a marketplace application, we allow our users to tie their listed book to a course prefix, course number, and professor, so this information is prone to error.
  • Kava will not reimburse or compensate users for any textbooks which were bought.

 

Feedback Policies

  • Feedback extortion:

Buyers aren’t allowed to use threats of poor Feedback or low detailed seller ratings to get something that wasn’t part of the original listing. Sellers aren’t allowed to demand positive Feedback from buyers.

  • Feedback manipulation:

Members aren’t allowed to exchange Feedback for the sole purpose of increasing Feedback scores, gaining eBay privileges, or enhancing reputation. Buyers aren’t allowed to attempt to damage a seller’s Feedback through a series of repeat purchases, or to leave negative comments with a positive feedback rating.

  • Feedback in seller terms and conditions:

Sellers can’t include terms or conditions in a listing that limit or restrict the buyer’s right to leave Feedback.

  • Defect removal policy:

Ratings and comments are generally a permanent part of a member’s Feedback Profile. However, there are a few situations when we might remove or adjust Feedback related to a defect that’s been removed, or Feedback comments that include, for example, links, profanity or other inappropriate content.

 

 

Minimum Performance Standards

Kava expects sellers to consistently provide service that results in a high level of buyer satisfaction. This includes setting and meeting buyer expectations by providing excellent customer service from beginning to end.

As a seller, you’re expected to:

  • Promptly resolve buyer issues.
  • Meetup to fulfill transactions of items in a timely manner.
  • Maintaining that you keep your listed books in stock.
  • Respond to buyers’ questions promptly.
  • Be helpful, friendly, and professional throughout a transaction.
  • Make sure the item is delivered to the buyer as described in the listing.
  • Confirm or reject sales within 24 hours, message back buyer within 24 hours, respect discussed meetup times with buyer

Keep in mind, too, that if you don’t meet buyers’ expectations, it can lead to:

  • Exceeding minimum requirements for defect rate.
  • A bad experience for you and the buyer.
  • Low detailed seller ratings.
  • Negative or neutral Feedback from a buyer.
  • A buyer asking us to step in and help with a transaction issue.
  • Termination of your account.

 

Content

When providing us with content or causing content to be posted using our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademark, and database rights and other intellectual property rights you have in the content, in any media known now or developed in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.

You represent and warrant that none of the following infringe any rights mentioned in the preceding paragraph: your provision of content to us, your causing content to be posted using the Services, and use of any such content (including of works derived from it) by us, our users, or others in contract with us that is done in connection with the Services and in compliance with this User Agreement.

We may offer catalogs including stock images, descriptions and product specifications that are provided by third-parties (including users). You may use catalog content solely in connection with your Kava listings. The permission to use catalog content is subject to modification or revocation at any time at Kava’s sole discretion.

While we try to offer reliable data, we cannot promise that the catalogs will always be available, accurate, and up-to-date, and you agree that you will not hold our catalog providers or us responsible for inaccuracies. The catalog may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included within the catalogs or create any derivative works based on catalog content (other than by including them in your listings).

 

Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code

We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. Kava works to ensure that listed items and content on our site or in our apps do not infringe upon the copyright, trademark, or other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify us through email at support@kavaapp.com

 

Holds

To protect Kava from risk of liability for your actions as a seller, Kava can at times recommend, that Braintree or Venmo or other payment services restrict access to funds in a seller’s or buyer’s payment account based on certain factors, including, but not limited to, selling history, seller performance, returns, riskiness of the listing category, or transaction value,. This may result in Kava and its payment partners restricting funds in your account.

 

Authorization to Contact You; Recording Calls

Kava may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this Terms of Use agreement, our policies, applicable law, or any other agreement we may have with you. Kava may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent to such communications. As described in our User Privacy Notice, Kava may collect other telephone numbers for you and may place manual non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits.

Kava may share your telephone number with its authorized service providers as stated in our User Privacy Notice. These service providers may contact you using autodialed or prerecorded calls and text messages, only as authorized by Kava to carry out the purposes we have identified above.

Kava may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Kava or its agents for quality control and training purposes or for its own protection.

 

Privacy of Others; Marketing

If Kava provides you with information about another user, you agree you will use the information only for the purposes it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.

 

Cancellations

Kava tracks cancellations made by Sellers to monitor for users who may attempt to circumvent trades through the Kava Application. Kava reserves the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.

 

Disclaimer of Warranties; Limitation of Liability

We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Purchase, update, and other notification functionality in Kava’s applications may not occur in real time. Such functionality is subject to delays beyond Kava’s control.

You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goods, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:

  • your use of or your inability to use our Services;
  • pricing, format, or other guidance provided by Kava;
  • delays or disruptions in our Services;
  • viruses or other malicious software obtained by accessing or linking to our Services;
  • glitches, bugs, errors, or inaccuracies of any kind in our Services;
  • damage to your hardware device from the use of any Kava Service;
  • the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
  • a suspension or other action taken with respect to your account or breach of the Terms of Service agreement;
  • the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
  • your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.

Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.

Kava DOES NOT provide any money back guarantee, refunds, or guarantees on any products or items sold and bought. Kava is not responsible for disputes between users, or harm arising from meetups between users.

 

Release

If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

 

Indemnity

You will indemnify and hold us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Terms of Service agreement, your improper use of Kava’s Services or your breach of any law or the rights of a third party.

 

Legal Disputes

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND KAVA HAVE AGAINST EACH OTHER ARE RESOLVED.

You and Kava agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Kava User Agreement, your use of or access to the Services, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.

 

Applicable Law

You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the Commonwealth of Virginia, without regard to principles of conflict of laws, will govern the Terms of Service agreement and any claim or dispute that has arisen or may arise between you and Kava, except as otherwise stated in the Terms of Service agreement.

 

Agreement to Arbitrate

You and Kava each agree that any and all disputes or claims that have arisen or may arise between you and Kava relating in any way to or arising out of this or previous versions of the User Agreement, your use of or access to Kava’s Services, or any products or services sold, offered, or purchased through Kava’s Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.

 

Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND KAVA AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND KAVA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Kava’s right to appeal the court’s decision. All other claims will be arbitrated.

 

Arbitration Procedures

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration: rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.

A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to Kava should be sent to Kava Inc., Attn: Litigation Department, Re: Notice of Dispute, 20130 Lakeview Center Plaza, Suite 400, Ashburn, Virginia 20147. Kava will send any Notice to you to the electronic email address we have on file associated with your Kava account; it is your responsibility to keep your electronic mail address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and Kava are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Kava may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Kava at the following address: Kava, Inc. 20130 Lakeview Center Plaza, Suite 400, Ashburn, Virginia 20147. In the event Kava initiates an arbitration against you, it will send a copy of the completed form to the electronic mail address we have on file associated with your Kava account. Any settlement offer made by you or Kava shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in Loudoun County, Virgninia. If the value of the relief sought is $10,000 or less, you or Kava may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Kava subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Kava may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Kava user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

 

Costs of Arbitration

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, Kava will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Kava should be submitted by mail to the AAA along with your Demand for Arbitration and Kava will make arrangements to pay all necessary fees directly to the AAA. If (a) you willfully fail to comply with the Notice of Dispute requirement discussed above, or (b) in the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Kava for all fees associated with the arbitration paid by Kava on your behalf that you otherwise would be obligated to pay under the AAA’s rules.

 

Severability

With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.

 

Opt-Out Procedure

IF YOU ARE A NEW KAVA USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO KAVA INC., ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, 20130 Lakeview Center Plaza, Suite 400, Ashburn, Virginia 20147.
In the Opt-Out Notice, please include your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the Kava account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.

 

Future Amendments to the Agreement to Arbitrate

Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Kava prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Kava. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.Kava.com at least 30 days before the effective date of the amendments and by providing notice through the Kava Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the amended terms.

 

Judicial Forum for Legal Disputes

Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Kava must be resolved exclusively by a state or federal court located Loudoun County, Virginia. You and Kava agree to submit to the personal jurisdiction of the courts located within Loudoun County, Virginia for the purpose of litigating all such claims or disputes.

 

General

Kava Inc. is located at 20130 Lakeview Center Plaza, Suite 400, Ashburn, Virginia 20147.

Except as otherwise provided in this Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this Terms of Service agreement, by providing notice of such assignment.

Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Terms of Service agreement.

We may amend this Terms of Service agreement at any time by posting the amended terms on www.KavaApp.com. Our right to amend the Terms of Service agreement includes the right to modify, add to, or remove terms in the Terms of Service agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we will notify you through the Kava Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an Kava representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.

The policies posted on our sites may be changed from time to time. Changes take effect when we post them on the Kava site.

The User Agreement, the User Privacy Notice, and all polices set forth the entire understanding and agreement between you and Kava and supersede all prior understandings and agreements of the parties.

The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Indemnity, and Legal Disputes.

If you are a California resident, in accordance with Cal. Civ. 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.

 

Personal Data

You agree to provide true, current, accurate, and complete information about yourself, as requested in the registration form and elsewhere in the Service, and you agree to keep such information updated if it changes. You are prohibited from providing the personal data of third parties, including their image or likeness, at any time during your use of the Service. Any information provided by you during the registration process, including, without limitation, personally-identifiable information, will be used by Kava in accordance with its User Privacy Notice.

 

Password

You agree to be responsible for keeping your password safe and to accept any liability for damages that may arise from any use thereof, including assignment, disclosure, and/or loss thereof. Any use or access of the Service with your password will be considered to have been performed by you, and you will be responsible for said access and use.

 

Linked Sites

The Service may include technical linking devices, directories, or search tools that allow you to access third party web sites and pages (hereinafter referred to as “Linked Sites”). You agree that Kava is in no way responsible for the Linked Sites. If you access a Linked Site for any reason, you do so at your own risk. Your use of any Linked Site and any personally-identifiable information or other information that you provide to any third party through a Linked Site is subject to the terms and conditions and privacy policy of such Linked Site, and not subject to these Terms or to Kava’s User Privacy Notice.

No third-party provider of data or software applications (including but not limited to Apple, Google, Amazon.com, or any other third party) endorses or takes responsibility for the Service or for Kava.

 

Intellectual Property and Content

All of the Service’s content, meaning, by way of example, the text, photographs, graphics, images, icons, technology, software, links and other audiovisual or sound content, as well as its graphic design and source code (collectively, the “Kava Content”) are the intellectual property of Kava or third parties. You agree that you do not obtain any rights to the Service or any Kava Content, except for the limited license to use the same in accordance with these Terms.

You might encounter various trademarks, trade names, distinctive marks, or trade dress in the Service. These are the property of Kava or third parties. Use of the Service does not give you any rights over them. Appearance of a trademark, product, brand, or name in the Service does not imply that Kava has a business relationship, ownership, or endorsement thereof.All intellectual property rights in and to Kava’s mobile application and website, the Service and its database, including copyrights, trademarks, industrial designs, patents and trade secrets – are either the exclusive property of Kava or its affiliates or are exclusively licensed to Kava. The design, trade dress, functionality, and the ‘look and feel’ of the mobile application are protected works under applicable copyright/patent laws and Kava and its affiliates retain all intellectual property rights in them. Kava is a trademark of Kava Inc.

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Kava; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

You represent that you are the sole author of all of the material, products, photographs, pictures, images, drawings, sounds, files, code, software, text, data, information, messages, descriptions, and/or content (together, “User Content”) that you publish on the Service and you guarantee that use thereof on the Service does not infringe or misappropriate third-party rights. You hereby grant Kava, free of charge, a non-exclusive, perpetual, irrevocable, worldwide, fully paid-up, royalty-free, sub-licensable, transferable license (including the right to sub-license and assign to third parties) and right to use, broadcast, publicly communicate, perform, display, enter into computer memory, manufacture, copy, reproduce, fix, adapt, modify, create derivative works from, distribute, commercialize, sell, license, sub-license, assign, publish, process, and use or access, in any way, the User Content, as well as any and all modified or derivative works thereof in connection with the Service, including promotion or marketing of the service. You also hereby grant to Kava the right to authorize others to exercise any rights granted to Kava under these Terms of Service. You further hereby grant to Kava the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any User Content and in connection with any User Content, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether your User Content is changed or altered in any manner. Kava does not claim any ownership rights in your User Content and nothing in these Terms of Service is intended to restrict any rights that you may have to use and exploit your User Content. Kava has no duty to monitor or enforce your intellectual property rights in or to your User Content.

The Service may include various communication features where you can provide, submit, communicate, and/or share to Kava and/or other users your User Content, including your observations and comments. Kava cannot guarantee that other users will not use the ideas and information that you provide. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not provide it on the Service. Kava has no duty to evaluate, use, or compensate you for any ideas or information you may choose to provide (regardless of whether such provision is made through the Service, by email, or by any medium of communication), and Kava shall be free to use such information on an unrestricted basis.

 

MODERATION

WITHOUT LIMITING ANY OTHER REMEDIES, KAVA RESERVES THE RIGHT, IN ITS SOLE DISCRETION, AT ANY TIME: (1) TO MONITOR OR STOP MONITORING THE SERVICE, INCLUDING ANY USER’S USER CONTENT, MESSAGES, AND/OR USE OF THE SERVICE; (2) TO TEMPORARILY OR PERMANENTLY DENY ANY USER, INCLUDING YOU, FROM ACCESSING ALL OF OR ANY PART OF THE SERVICE; (3) TO SUSPEND, TERMINATE, MODIFY, OR DELETE ANY ACCOUNT; (4) TO STOP PROVIDING THE SERVICE IN WHOLE OR IN PART, AT ANY TIME. KAVA SHALL HAVE NO DUTY TO NOTIFY YOU OF ANY MONITORING, MODERATION, DENIAL, EXCLUSION, AVAILABILITY, OR UNAVAILABILITY OF THE SERVICE, OR OF ANY SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF ANY ACCOUNT, AND KAVA IS UNDER NO DUTY TO COMPENSATE YOU FOR ANY LOSS ASSOCIATED THEREWITH.

Kava reserves the right, but has no obligation, to become involved in any way with interactions among users, including, without limitation, to investigate any suspected unlawful, fraudulent, or improper activity. You agree to fully cooperate with Kava to investigate any suspected fraudulent, unlawful, or improper activity.

Kava assumes no responsibility for the conduct of any user submitting any User Content, and assumes no responsibility for monitoring the Service for inappropriate content or conduct. Kava does not, and cannot, pre-screen or monitor all User Content. Your use of the Service is entirely at your own risk. By using the Service, you may be exposed to User Content that is offensive, indecent, fraudulent, or otherwise not in line with your expectations. You bear all risks associated with the use of any User Content available in connection with the Service. At Kava’s sole discretion, our representatives, agents, or technology may monitor and/or record your interaction with the Service or communications (including, but not limited to, messages, chats, images, photographs, texts, or voice communications) when you are using the Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission or reception of any User Content, including, but not limited to, messages, chats, images, photographs, texts, or voice communications.

 

 

USER PRIVACY NOTICE

 

  1. Introduction:

This Privacy Policy relates to Kava’s collection and use of your data when you use or access the Kava service, websites, servers, software applications, or content therefrom (together, the “Kava Service” or “Service”). This Privacy Policy is incorporated by reference into Kava’s Terms of Service.

 

  1. Collection and Use of Personally Identifiable Information:

Personally identifiable information (“PII”) is information that can be used to identify an individual person. Examples of PII include a person’s name, home address, email address, or phone number. We may receive and store any PII that you provide on our Service, send to us in an email or voluntarily provide to us in any other way. As you use, access, or register for the Service, you may be asked to provide certain PII.

 

  1. Collection and Use of Non-Personal Information:

Kava also collects data in a form that does not, on its own, permit direct association with an individual person. We may collect, use, transfer, and disclose non-personal information for any purpose. If we do combine non-personal information with personal information the combined information will be treated as personal information for as long as it remains combined.

 

  1. Automatic Data Collection:

Kava uses automatic data collection technology when you use the Service to record information that identifies your computer, to track your use of the Service, and to collect certain basic information about you and your usage habits. This information includes information about your operating system, IP addresses, browser type, language, referring and exit pages, URLs, keywords, date, time, amount of time spent on particular pages, what sections of a website you visit, and similar information concerning your use of the Service (collectively, the “Usage Information”). Kava may collect this Usage Information by using cookies. Our cookie policy is described below.

 

  1. Use of PII:

Any PII you provide to Kava may be used by Kava for the following purposes:

(i) to make it possible to provide the Service;

(ii) to answer your queries;

(ii) to keep you informed, including by electronic means, about news, products, and services of Kava and its affiliates; and

(iv) to keep you informed, including by electronic means, about news, products and services from third parties.

Kava, like many businesses, sometimes hires third parties to perform certain business-related functions. Examples include mailing information, maintaining databases, hosting services, and processing payments. When Kava employs a third party to perform a function of this nature, we provide them with the information that they need to perform their specific function, which may include PII of users. Kava requires such third parties to maintain the confidentiality of such information and use such information only as necessary to provide Kava with designated services.

If Kava or all or substantially all of its assets are acquired, the information that Kava has collected, including without limitation PII, may be transferred along with our other business assets.

Kava may disclose any information, including, but not limited to, PII, to government authorities, and to other third parties when compelled to do so by government authorities, at Kava’s discretion, or otherwise as required by law, including but not limited to responses to court orders and subpoenas. Kava may also disclose PII, when Kava has reason to believe that someone is causing or may cause injury to or interference with Kava’s rights or property, other users of the Service, or anyone else that could be harmed by such activities.

Kava reserves the right to pass your PII on to third parties so that they may send you commercial communications, including by electronic means, concerning news, products, and services. Said third parties may be located in any country in the world with the international transfer of data to which that gives rise. You may opt-out of Kava sharing your PII with third parties for marketing purposes at any time by sending an opt-out request to Kava at support@kavaapp.com.

In order to make it possible to manage and provide the Service, Kava may also share your PII with any of the companies in its company group. Said companies may be located in any country in the world, with the international transfer of data to which that gives rise.

 

  1. Security Measures:

Kava uses commercially reasonable efforts to protect PII from loss and unauthorized access. However, no security system is infallible. Kava cannot guarantee the security of its databases, nor can it guarantee that your PII will not be intercepted, copied, accessed, or stolen.

 

  1. Minimum Age:

The Kava Service is not intended for, and may not be used by, people under the age of 18. Without limiting the foregoing, Kava does not knowingly collect PII from children under the age of 13. If you are under the age of 13, you are forbidden from using the Service and from giving Kava any PII. If we learn that we have received PII from a child under the age of 13, or other jurisdictionally-applicable age, we will take steps to delete that PII as soon as possible.

 

  1. Viewing of PII Among Users:

You acknowledge and agree that during normal operation of the Service, your PII may be viewed by other Users to facilitate contact and interaction. This Privacy Policy does not apply to any information, including, but not limited to, PII, that you choose to make available to other users of the Service, and Kava is not responsible for the information that you choose to make available to other Users of the Service or the use thereof by any other user of the Service or any third party.

 

  1. Messages:

You acknowledge and agree that Kava has the right to access and store the content of messages and communications sent or received by the Users of the Service. Said access and storage aim to foster the proper use and normal operation of the Service as well as to comply with legal requirements.

 

  1. Third-party Websites or Services:

When you access or use the Kava Service, you may encounter links to other websites or services. Kava is not responsible for any third-party websites or services. Please review the privacy policy of those websites or services if you choose to access or use them.

 

  1. Cookies:

Kava uses cookies and similar technologies to improve the user experience of our Services. Cookies are files that are placed on your computer when you access websites or online services. Kava uses cookies to recognize you when you access the Service. Among other things, they allow Kava to store and recover information about your browsing habits and your computer, and help us to improve the Service. For more information about cookies, please visit:http://www.aboutcookies.org/

By using the Services, you consent to our use of cookies and similar technologies. You may choose to block or disable cookies by using the settings within your browser or mobile device. For more information about checking on the status of cookies or to block or delete cookies, please visit: http://www.aboutcookies.org/.

Please be aware that blocking or deleting cookies may affect your experience using the Services, and we make no guarantees associated therewith.

Certain cookies used by the Service and their purposes are described below:

Analysis cookies (Google Analytics): these are processed by a third party and allow us to quantify the number of users and to carry out statistical measurement and analysis of the use users make of the Service. Your use of our Services is thus analyzed in order to improve our products and services. Data obtained through these kinds of cookies may remain stored on your computer and may be processed whenever you access the Service until the cookies expire or you delete them.