Effective July 23, 2019

Welcome to DrinkKiito.com (the “Website”)! Kiito, Inc. ("Kiito" or "Company") recommends that you read the following terms of service carefully. By accessing the Website, or using any products ordered through the Website (“Products”), you agree to be bound by these terms (the "Terms of Service" or the "Agreement"), which is a legally binding agreement between Kiito and you. If you do not understand this Agreement, or do not agree to be bound by it or the Privacy Policy, you must immediately cease your accessor use of the Website and Products.

These terms contain provisions that require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute. See below for full details.

1. PRIVACY POLICY

   Kitto’s Privacy Policy (the “Privacy Policy”) is an important part of this Agreement, and is incorporated into this Agreement by reference. The Privacy Policy contains important information about how information is collected from you by Kiito, how it is used and shared with Kiito’s service providers, and what your rights are with respect to such information. The Privacy Policy is available at https://DrinkKiito.com/privacy/. Kiito encourages you to frequently check the Privacy Policy for changes.

2. NO MEDICAL ADVICE

   You understand and agree that nothing on the Website or provided through the Website is intended as or should be construed as medical advice. Kiito is not a medical organization and cannot give you medical advice or any diagnosis. You are urged and advised to seek the advice of a physician before beginning any dietary or any weight loss regimen. While the Products are generally recognized as safe for consumption, you may be pregnant, nursing, taking medication or have a health condition that conflicts with the Products; as such, you should consult with your primary care physician before using any of the Products.

3. QUALIFICATIONS

   By accessing and/or using the Website, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law. If you are using the Website on behalf of a company, you further represent and warrant that you are authorized to act and enter into contracts on behalf of that company.

4. PAYMENTS & SUBSCRIPTION PLANS

   The terms of this Section 4 govern purchases of Products and/or other goods and services made by you through the Website. Note that, while Kiito Products may be available for purchase through third-party websites or storefronts, such purchases are governed by the payment and refund policies of the third parties operating such websites and storefronts.

   Payments & Refunds

   For purchases made by you through the Website, all transmissions of payment information between you and Kiito are secured with Internet-standard TLS (also known as HTTPS) encryption. We collect your name, address, and payment information to process your order.

   Due to the nature of the Products, once your order is confirmed, ALL SALES ARE FINAL AND THERE ARE NO REFUNDS. Requests for exchanges or replacements of spoiled or damaged product will be handled on a case-by-case basis and at Kiito’s sole discretion.

   Subscription Plans

   From time to time, Kiito may offer Products for sale in subscriptions—for example, a subscription plan that enables you to receive and pay for weekly shipment of certain Products—according to the terms of the Subscription Plan selected by you at the time of purchase (your “Subscription Plan”). If you chose to enroll in a Subscription Plan, you understand and agree that, in addition to your first purchase, your credit or debit card on file will be charged for additional subscription periods (e.g., once per week) without obtaining further permission or confirmation from you. In other words, Subscription Plans renew automatically unless cancelled in advance of the next payment period by you. Please pay attention to the payment terms and disclosures provided during the order process for your Subscription Plan.

   Changes and Cancellation. To change or cancel a Subscription Plan, you may either call us at (310)-955-1332 or email us at [email protected]. If you choose to change or cancel your Subscription Plan by email, you must provide us sufficient information to identify your account, such as your name, shipping address, the email address associated with the account, and any account number that has been assigned to you. Changes and cancellations must be made at least two (2) days before your credit or debit card is charged for the next payment period.

   Prohibition on Cancellation Prior to Second Shipment. If you purchase a Subscription Plan, you agree that you will not cancel your Subscription Plan prior to the second shipment of Product thereunder. The purpose of this prohibition is to prevent users from purchasing a Subscription Plan merely to obtain any associated discount off the price for a one-time purchase of the same Product, when they have no intent of continuing in the Subscription Plan. Accordingly, if you purchase a Subscription Plan but cancel before the second shipment, Kiito reserves the right to charge your payment card the difference between the one-time purchase price and the subscription price for the Products you purchased, and you expressly authorize Kiito to do so.

   Changes in Subscription Fees. It may be necessary for Kiito to change the fees and charges in effect for its Products, including for any Subscription Plan, and Kiito reserves the right, in its sole discretion, to lower your fees or switch your Subscription Plan to a lower package rate so long as it has the same features and service level. Kiito will not increase rates for your Subscription Plan without your prior approval.

5. YOUR USE OF THE WEBSITE

   License

   Subject to your compliance with these Terms of Service, Kiito grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the Website, and to use the Website. No part of the Website, including the Website, may be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior express written consent of Kiito. All rights not expressly granted in this Agreement are reserved by Kiito. Without limitation, this Agreement grants you no rights to the intellectual property of Kiito or any other party, except as expressly stated in this Agreement. The license granted in this section is conditioned on your compliance with this Agreement. Your rights under this section will immediately terminate if, in the sole judgment of Kiito, you have breached any provision of this Agreement.

   User Account

   To access and use certain parts of the Website, you may be asked to create a user account ("Account"), and to provide information that personally identifies you. You represent and warrant that all user information you provide in connection with your Account and your use of the Website is current, complete, and accurate, and you agree that you will update that information as necessary to maintain its completeness and accuracy by updating your personal Profile. You are entirely responsible for maintaining the confidentiality of your account credentials, including any username or password. You agree to notify Kiito immediately of any unauthorized use of your Account. Kiito reserves the right to refuse service, terminate your account, terminate your right to use the Website, remove or edit your user content, or cancel your orders in its sole discretion.

   Your Content

   From time to time, and at its sole discretion, Kiito may authorize you and other users to post reviews, comments, ratings, and other content (“Your Content”) to the Website. With respect to your content, you are prohibited from posting any Content that infringes on the intellectual property rights of others, is illegal, obscene, threatening, defamatory, invades the privacy of others (e.g., doxing), contains a commercial solicitation or other form of “spam” messages, or otherwise violates the Prohibited Content section below. You agree to indemnify, defend, and hold harmless Kiito for and against all claims asserted by third parties that arise out of or relate to Your Content. Kiito reserves the right to remove or edit Your Content but has no obligation to do so and does not conduct such reviews as a matter of practice.

   License

   You are always the owner of Your Content; however, Kiito requires the following license from you in order to be able to display Your Content on the Website: You grant to Kiito a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute and display Your Content throughout the world in any media now existing or in the future created.

   Reviews and Comments

   With respect to any Product reviews or comments provided by you to Kiito as part of Your Content, you represent and warrant that such reviews or comments are true and accurately represent your experience as a bona fide user of the Product. You understand and agree that, pursuant to the license granted above, Kiito will have the right to republish all or part of your reviews and comments on the Website, Kiito’s social media accounts, advertising, and other media as Kiito deems fit.

   Prohibited Conduct

   Kiito imposes certain restrictions on your use of the Website. The following are expressly prohibited: (a) providing false, misleading, or inaccurate information to Kiito or any other person in connection with the Website; (b) impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity; (c) modifying or changing the placement and location of any advertisement posted through the Website; (d) harvesting or otherwise collecting information about users, including email addresses and phone numbers; (e) without express written permission from Kiito, using or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on Third-Party Websites; (f) accessing content or data not intended for you, or logging into a server or account that you are not authorized to access; (g) attempting to probe, scan, or test the vulnerability of the Website, or any associated system or network, or breaching security or authentication measures without proper authorization; (h) interfering or attempt to interfere with the use of the Website by any other user, host, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities; (i) forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Website (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers); (j) while using the Website, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising; (k) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Website, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable; (l) creating additional accounts to promote your (or another's) business, or causing others to do so; or (m) paying anyone for interactions on the Website.

   Assumption of Risk; Release

   You knowingly and freely assume all risk when using the Website and Products. You, on behalf of yourself, your personal representatives, and your heirs, voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Kiito and its owners, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns (collectively, the "Company Parties") from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Website or Products.

6. THIRD-PARTY CONTENT

   Third-Party Content on the Website

   Opinions, advice, statements, or other information made available through the Website by third parties, such as other users, are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Kiito does not guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Website and will not be responsible for any loss or damage resulting from your reliance on third-party information.

   Third-Party Websites

   The Website may be linked with the websites of third parties ("Third-Party Websites"), some of whom may have established relationships with Kiito and some of whom may not. Kiito does not have control over the content and performance of Third-Party Websites. Kiito has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third-Party Websites. Accordingly, Kiito does not represent, warrant, or endorse any Third-Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third-Party Websites.

7. INTELLECTUAL PROPERTY

   Kiito, the Kiito logo, the Website domain, the Product names, and all content and other materials available through the Website (collectively, the "Company IP") are trademarks, copyrights, and intellectual property of and owned by Kiito or Kitto’s licensors and suppliers. Neither your use of the Website nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company IP. You agree that any goodwill in the Company IP generated as a result of your use of the Website will inure to the benefit of Kiito, and you agree to assign, and do assign, all such goodwill to Kiito. You shall not at any time, nor shall you assist others to, challenge Kiito’s right, title, or interest in, or the validity of, the Company IP.

8. DISCLAIMERS, LIMITATION OF LIABILITY

   No Warranties

   To the fullest extent permitted by law, Kiito, on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Website or Products, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Kiito nor its licensors or suppliers warrants that the Website or Products will meet your requirements, or that the operation of the Website will be uninterrupted or error-free. Kiito disclaims all implied liability for damages arising out of the furnishing of the Products or the Website pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects, whether caused by acts of commission or omission, or any other damage occurring. Kiito shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of Kiito, Company Parties, or Kiito users, or their agents or representatives.

   Limitation of Liability

   To the fullest extent permitted by law, in no event shall Kiito or its licensors or suppliers be liable to you for any claims arising from your use of the Products or Website, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to Kiito or its licensors and suppliers arising out of or in connection with your use of the Products or Service. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Kiito and you. The Website would not be provided without such limitations.

   Application of Disclaimers

   The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Kiito or between you and any of Kiito’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Kiito’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Website or otherwise shall alter any of the disclaimers or limitations stated in this section.

9. INDEMNIFICATION

   Without limiting any indemnification provision of this Agreement, you agree to defend, indemnify, and hold harmless Kiito and the Company Parties (collectively, the "Indemnitees") from and against any and all claims, actions, demands, causes of action, and other proceedings (collectively, "Claims"), including but not limited to legal costs and attorneys’ fees, arising out of or relating to: (i) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) your provision to Kiito or any of the Indemnitees of Your Content or other information or data; (iii) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (iv) your violation or alleged violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim. You may not settle any Claim without the prior written consent of the concerned Company Parties.

10. DISPUTE RESOLUTION

    Binding Arbitration

    If you and Kiito cannot resolve a dispute or other Claim through negotiations, either party may elect to have the dispute or Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s).

    You acknowledge that without this provision, you would have the right to sue in court with a jury trial or to participate in a class action.

    The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.

    The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for in this Agreement, Kiito will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you will pay the arbitrator fees, in addition to any amount that exceeds the filing fees. In that case, you also agree to reimburse Kiito for all payments disbursed that are your obligation to reimburse under the AAA Rules. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The location of the arbitration will be Los Angeles, California, but upon the agreement of the parties, the arbitration may be conducted through document submission, through telephone, or online.

    Restrictions Against Joinder of Claims

    You and Kiito agree that any arbitration shall be limited to each Claim individually. You and Kiito agree that each may only bring Claims against the other in your or Kiito’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

    Equitable Relief

    This agreement to arbitrate will not preclude you or Kiito from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Kiito from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. "Court of Competent Jurisdiction" means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in Los Angeles, California.

    Governing Law; Venue for any Judicial Proceeding

    This Agreement shall be treated as though this Agreement were executed and performed in Los Angeles, California, and shall be governed by and construed in accordance with the laws of California without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.

    Subject to and without waiving the arbitration agreement above, the proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the state and federal courts located in Los Angeles, California. The parties stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.

11. GENERAL

    Entire Agreement. This Agreement constitutes the entire agreement between Kiito and you concerning your use of the Website.

    Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full force and effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.

    Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of Kiito, or by the unilateral amendment of this Agreement by Kiito along with the posting by Kiito of that amended version.

    No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.

    Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of Kiito. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.

    Independent Contractors. You and Kiito are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.

    No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties, Indemnitees, and Kiito’s licensors and suppliers (to the extent expressly stated in this Agreement).

    Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.

12. CHANGES TO TERMS AND PRIVACY POLICY

    Internet technology and the applicable laws, rules, and regulations change frequently. Kiito reserves the right to change this Agreement and the Privacy Policy at any time upon notice to you (including by posting a new version, or sending you a change notice to your email address of record). It is your responsibility to review this Agreement and the Privacy Policy periodically.

SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

KiiTO (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.

Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at [email protected]. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Los Angeles, California before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which KiiTO’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.