Keenwawa's End User License Agreement and Terms of Service
Last updated: January 2016
BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICE.
As provided in greater detail in this EULA (and without limiting the express language of the EULA below), you agree and acknowledge that the EULA includes, the following material terms:
the App is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
your use of the Service may be subject to separate third party terms of service and fees, including without limitation your mobile network operator's (the "Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
access to certain features of the Service may require access to information about the location of your device, such as GPS coordinates;
the Service is provided "as is" without warranties of any kind and Keenwawa's liability to you is limited;
disputes arising hereunder will be resolved by binding arbitration, and BY ACCEPTING THIS EULA, YOU AND KEENWAWA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Dispute Resolution Section below for the details regarding your agreement to arbitrate any disputes with Keenwawa;
the App may require access to the following services on your mobile device: UDID, MAC address, or other applicable device identifier, phone state and identity, audio and microphone access, and internet and data services.
if you are using the App on an iOS-based device, you agree to and acknowledge the "Notice Regarding Apple", below.
You must be at least thirteen (13) years of age to use the Service. By agreeing to this EULA, you represent and warrant to us: (i) that you are at least thirteen (13) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to this EULA and you agree to be bound by this EULA on behalf of such organization.
02 Accounts & Registration
To access some features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, e-mail address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
03 Payment & Pricing Policy
We are a cashless business. When you place a food order through the App or the Kiosk, you will have the option to pay via credit and debit cards. You may also have the option to pay using Apple Pay, PayPal or other similar payment options. Keenwawa and its designated payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. Due to the non-fixed costs of restaurant operations, prices for our products may vary between Eatsa store locations and may change without notice. You authorize Keenwawa to charge all sums as described in this EULA, for the Service you select, to that payment method.
04 Refund Policy
If you have made a purchase at a Keenwawa store or otherwise through the Service and you are not completely satisfied with it, we will gladly arrange for a refund if a complaint is filed within 10 days of service. If 10 days have elapsed since your purchase, unfortunately we can't offer you a refund. To file a complaint, refer to the "Contacting Keenwawa" section below.
05 Our Dishes
We try very hard to accurately describe and display all the food we serve and sell at our Eatsa restaurant locations, on the App, on the Sites, and on our Kiosks. However, because our food is all handcrafted by Eatsa's chefs, occasionally a dish you order won't look or taste exactly as it was described or displayed to you. You understand that this is normal, and that we can't and don't guarantee the accuracy or completeness of any description or depiction of any dish, including without limitation, any prepared or raw food. We reserve the right to change or update any such description or depiction and to correct errors, inaccuracies, or omissions at any time without giving you notice. If you are unsatisfied with any food you purchase, please see our refund policy above.
06 Scope of License
The App is licensed, not sold, to you for use only under the terms of this license. Keenwawa reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with the terms and conditions of this EULA, Keenwawa hereby grants you a personal, limited, revocable, non-transferable license to use the App on a single compatible device that you own or control, solely for your own use. You may not modify, alter, reproduce, distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or third party terms), nor attempt to disable or circumvent any security or other technological measure designed to protect the App or any content available through the App. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. The terms of this EULA will govern any updates provided to you by Keenwawa that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
07 Third Party Services & Linked Websites
Keenwawa may provide tools through the Service that enable you to export information to third party services, including through features that allow you to link your account on Keenwawa with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as "like" or "share" buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service's use of your exported information. The Service may also contain links to third party websites. Linked websites are not under our control, and we are not responsible for their content.
08 Open Source & Third Party Software
The Apps may include open source software or third party software. Any such software is made available to you under the terms of the applicable licenses.
09 Content You Submit
The Service may include features that enable you to upload certain materials to Keenwawa's servers, to enable certain processing of those materials by Keenwawa, and to share them other users of the Service. The following terms apply to your use of such features to manage and share media content across the Service.
a. You agree that you are solely responsible for, and assume all liability and consequences regarding, the text, audio, messages, photos, images, and other similar media content that you submit through the Service along with all associated meta data (which may include without limitation your device type, as well as date, time, application and location data associated with the creation and/or submission of a particular piece of content) (collectively "User Content").
b. You retain ownership of all of your rights in your User Content and Keenwawa does not obtain any ownership of rights in your User Content, but in order for Keenwawa to provide the Service we need certain permission from you . Accordingly, you hereby grant Keenwawa a worldwide, non-exclusive, royalty-free, sub-licenseable and transferable license, without obligation, to use, reproduce, distribute, publish, display, perform, transmit, stream, broadcast, modify and otherwise utilize your User Content and modifications and derivatives thereof (including without limitation the right to include, append, integrate, embed, or incorporate advertising, and to format or otherwise adapt your User Content as necessary or useful to conform to the requirements, limitations, or capabilities of the various formats, networks, devices, services, and media to which your User Content may be implemented) in connection with providing the Service to Keenwawa's (and its successors' and affiliates') users. You agree that Keenwawa is not obligated to publish any User Content, and reserves the right to remove any User Content from the Service at any time for any reason, and is not obligated to pay or share any revenues with you in connection with your User Content, any associated advertising, or otherwise.
c. By posting and sharing User Content with another user of the Service, you grant that user a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
d. You represent, warrant, and covenant that (1) you either are the sole and exclusive owner of all User Content that you submit to the Service, or you have all rights, licenses, consents and releases that are necessary to grant to Keenwawa the rights in such User Content as contemplated under this EULA, and (2) neither the User Content you submit to the Service nor your creation of, accessing, posting, submission or transmission of such User Content or Keenwawa's exercise of the rights granted above to such User Content (or any portion thereof) will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including without limitation restrictions on obscenity, child pornography, wire tap laws or other similar restrictions on nonconsensual recording, or otherwise), or give rise to any right of payment of any amounts to any third party.
e. You agree not to submit User Content that: (1) is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promotes discrimination, bigotry, racism, or hatred, as determined by Keenwawa in its sole discretion; or (2) introduces viruses, time-bombs, worms, cancelbots, trojan horses and/or other harmful code.
10 Digital Millenium Copyright Act
a. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
200 Kansas St.
San Francisco, CA 94103
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
i. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
ii. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
iii. a description of the material that you claim is infringing and where it is located on the Service;
iv. your address, telephone number, and email address;
v. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
vi. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
b. Repeat Infringers. Keenwawa will promptly terminate without notice the accounts of users that are determined by Keenwawa to be "repeat infringers." A repeat infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
11 Third Party Materials
a. Certain portions of the Service may include, display, or make available content, data, information, applications or materials from third parties ("Third Party Materials"). You understand that by using the Service, you may encounter Third Party Materials and other content, such as third party advertisements and promotional content (collectively, "Content"), that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that may automatically and unintentionally contain links or references to objectionable material. Nevertheless, you agree to use the Service at your sole risk and that Keenwawa shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable, or that is inaccurate, incomplete, untimely, invalid, illegal, indecency, of poor quality or otherwise.
b. In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. Keenwawa makes no representation that such services and materials are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.
12 Your Use of the Service & Content
Your rights to use the Service are expressly conditioned on the following:
a. You agree and understand that the Service, including any Content therein, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information or materials;
b. Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service, and you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service without prior written authorization;
c. You agree not to bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;
d. You agree not to perform any fraudulent activity, including impersonating any person or entity, or accessing any other Service account without permission;
e. You agree not to decipher, reverse engineer, decompile or disassemble the Service or the Content, or the software used to provide the Service or the Content, in whole or in part, or authorize, direct, or cause a third party to do so;
f. You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service or the Content, or any portion thereof, unless and solely to the extent Keenwawa makes available the means for embedding any part of the Service or the Content;
g. You agree not to access, tamper with, or use non-public areas of the Service, Keenwawa's (and its hosting company's) computer systems and infrastructure, or the technical delivery systems of Keenwawa's providers;
h. You agree not to use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;
i. You agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Keenwawa is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Service.
j. You agree that your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier's terms of service, and you agree to pay all such fees and abide by all such terms;
k. You agree not to do any of the acts described in this Section 12, or to assist or permit any person in engaging in any of the acts described in this Section 12.
13 Location Based Services
Some of the features of the Service may enable Keenwawa to tailor your experience based on your location ("Location-based Services"), such as to serve advertisements and to make offers, event updates, and other announcements available to you based on your location. In order to use certain Location-based Services, you must allow Keenwawa access to your localized position through your device, which Keenwawa may accomplish through a variety of means, including GPS location, GeoIP, or other available mechanisms. Without limiting the foregoing, even if you have not expressly granted Keenwawa access to location data, Keenwawa may nonetheless have access to location information contained in media content meta data, to the extent you have enabled the application originating such media content to capture and store location data. If you choose to disable Location-based Services on your device or to the App, you may not be able to utilize certain features of the Service. By authorizing Keenwawa to access your location or media files containing location based meta data, you agree and acknowledge that (i) location data we collect from you is directly relevant to your use of the Service and (ii) Keenwawa may, for so long as you allow Keenwawa to access such location data or meta data, provide Location-based Services related to your then-current location. PLEASE NOTE THAT LOCATION DATA MAY NOT BE ACCURATE, WHETHER COLLECTED ORIGINALLY BY THE APP OR A THIRD PARTY APPLICATION ORIGINATING A PIECE OF MEDIA CONTENT, AND KEENWAWA DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION DATA AND LOCATION BASED SERVICES.
14 Consent to Use of Data
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending Keenwawa or our employees any ideas for products, services, features, modifications, enhancements, refinements, technologies, content offerings, promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, computer code, or other materials (collectively "Feedback"), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Keenwawa, you agree that:
a. Keenwawa has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Keenwawa is not under any obligation to keep any Feedback you send confidential or to refrain from using it in any way; and
c. You irrevocably grant Keenwawa and its successors and assigns perpetual and unlimited permission to use, reproduce, modify, and distribute, display, and perform Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback whether in whole or in part, and whether as provided or as modified.
The Service, and the media and materials contained therein, including all intellectual property rights therein, are the sole and exclusive property of Keenwawa and its licensors, provided that your User Content, and your intellectual property rights therein, remain your property. Except for the limited license expressly granted by and to you under this EULA, no other rights, licenses, or immunities are granted or shall be deemed to be granted under this EULA, either expressly, or by implication, estoppel or otherwise. All rights not expressly granted by Keenwawa hereunder are expressly reserved.
The EULA is effective until terminated by you or Keenwawa. Your rights under this license will terminate automatically without notice from Keenwawa if you fail to comply with any term(s) of this EULA (including by violating any license restriction provided herein). In addition, Keenwawa may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate this EULA at any time by uninstalling the App and ceasing use of the Service. Upon any termination of the EULA, you must immediately cease all use of the Service, and destroy all copies, full or partial, of the App.
You agree to defend, indemnify, and hold Keenwawa, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (i) your User Content, (ii) your access, use, or misuse of the Service or the Content, or (iii) your violation of this EULA.
19 No Warranty
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE, INCLUDING YOUR RELIANCE ON ANY ANNOUNCEMENT THAT IS TRANSMITTED OR RECEIVED ON OR THROUGH THE SERVICE, IS AT YOUR SOLE RISK. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, INCLUDING ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, AS WELL AS ANY FOOD SERVED AT OUR EATSA RESTAURANT LOCATIONS, ARE PROVIDED "AS IS" AND "AS AVAILABLE", AND KEENWAWA HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. KEENWAWA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
20 Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL KEENWAWA, ITS SUPPLIERS OR LICENSORS, OR ANY PARTY INVOLVED IN CREATING OR PRODUCING ANY FOOD SERVED AT OUR EATSA RESTAURANT LOCATIONS, BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF KEENWAWA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL KEENWAWA'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO KEENWAWA FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
21 Third Party Disputes
KEENWAWA IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THE KEENWAWA SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE KEENWAWA (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) 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. 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 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
22 Dispute Resolution
In the interest of resolving disputes between you and Keenwawa in the most expedient and cost effective manner, you and Keenwawa agree that any and all disputes arising in connection with this EULA shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this EULA. You understand and agree that, by entering into this EULA, you and Keenwawa are each waiving the right to a trial by jury or to participate in a class action.
a. Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
b. Arbitrator. Any arbitration between you and Keenwawa will be settled under the Federal Arbitration Act and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Keenwawa. c. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Keenwawa's address for Notice is: Keenwawa, Inc., 200 Kansas St., San Francisco, CA 94103. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Keenwawa may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Keenwawa shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Keenwawa shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Keenwawa in settlement of the dispute prior to the arbitrator's award. d. Fees. In the event that you commence arbitration in accordance with this EULA, Keenwawa will reimburse you for your payment of the filing fee, unless your claim is for greater than $5,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco County, California provided that if the claim is for $5,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Keenwawa for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits. e. No Class Actions. YOU AND KEENWAWA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Keenwawa agree otherwise, 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. f. Modifications. In the event that Keenwawa makes any future change to this arbitration provision (other than a change to the Keenwawa's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Keenwawa's address for Notice, in which case your account with Keenwawa shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive. g. Enforceability. If only Subsection (e) of this Section or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in the "Governing Law" Section, below, shall govern any action arising out of or related to this EULA.
23 Governing Law
The laws of the State of California, excluding its conflicts of law rules, govern this license and your use of the Service. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and you hereby irrevocably submit to personal jurisdiction in such courts.
24 International Use
The Service is controlled and operated from within the United States. Keenwawa makes no representation that the Service is appropriate or available in locations outside the United States. Those who choose to access the Service from other locations are responsible for compliance with applicable laws. International users must comply with all local rules regarding online conduct and acceptable content, including laws regulating the export of data form the United States or your country of residence.
25 Modification of this EULA
We reserve the right, at our discretion, to modify this EULA on a going-forward basis at any time, with or without prior notice, and such changes will be effective in accordance with the following. In the case of material changes to this EULA, Keenwawa will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Service, or other similar mechanism. The modifications to the EULA will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from posting of such change. Your use of the Service following the date that any such change becomes effective constitutes your agreement to be bound by the modified EULA. If you do not agree to the modified EULA, your sole and exclusive remedy is to terminate your account and you may no longer use the Service. Disputes arising under this EULA will be resolved in accordance with the version of the EULA that was in effect at the time the dispute arose.
27 Contacting Keenwawa
You can contact Keenwawa, Inc. by email at email@example.com, or by U.S. post at Keenwawa, Inc. 200 Kansas St., San Francisco, CA 94103.
28 Obtaining a Copy of this EULA
You may have this EULA mailed to you electronically by sending a letter to the address in Section 27 with your electronic mail address and a request for a copy of this EULA.
29 Notice to California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
30 Notice Regarding Apple
To the extent that you are using our mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section 30. You acknowledge that these Terms are between you and Keenwawa only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the mobile application infringe that third party's intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple's subsidiaries are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not 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; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.