Terms of Use

 

Last Updated: October 1, 2021

 

Welcome!

 

Please read these terms of use carefully before using this website or application.  All of the terms are important, but please pay special attention to those that are in caps, bold, or underlined font as some of these terms may limit our responsibility or involve some risk for you. 

 

This website, including all desktop and mobile versions of the website (collectively, the “Site”) is owned by KESS Enterprises, Inc. (“Company”, “we”, “us”, or “our”).  “You” and “your” means the individual or legal entity using or accessing the Site.

 

These Terms of Use constitute an agreement between us and you. BY ENTERING, ACCESSING, BROWSING, SUBMITTING INFORMATION TO, OR OTHERWISE USING THE SITE, YOU AFFIRM THAT YOU ARE ABLE AND LEGALLY COMPETENT AND YOU AGREE TO THESE TERMS OF USE, INCLUDING BINDING ARBITRATION, WAIVER OF A RIGHT TO JURY TRIAL, WARRANTY DISCLAIMERS, AND CERTAIN EXCLUSIONS AND LIMITATIONS ON OUR LIABILITY. If you do not agree to these Terms of Use or our Privacy Policy, or if you are not legally competent to agree to them, then you may not use the Site.

 

Privacy

 

Please review our Privacy Policy, which describes how we collect, store, and use information about our users. The Privacy Policy is incorporated into these Terms of Use and governs your use of the Site.

 

Changes

 

We reserve the right, at any time, to change these Terms of Use, our Privacy Policy and/or the Site. Your continued use of the Site following any such change constitutes your agreement to follow and be bound by the Terms of Use and/or Privacy Policy as revised. The revised Terms of Use and/or Privacy Policy supersede all previous versions, notices or statements regarding the Site. If we request, you agree to sign a non-electronic version of these Terms of Use. Please check these Terms of Use periodically for updates.

 

Company Content

 

Content on this Site that is provided by Company or its licensors, including certain graphics, photographs, images, screen shots, text, articles, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing (“Company Content”) is the property of Company and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws.

 

Except as authorized in writing by Company, you agree not to download, display or use any Company Content located on the Site for use in any publications, in public performances, on websites other than this Site for any other commercial purpose, in connection with products or services that are not those of Company, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Company and/or its licensors, that dilutes the strength of Company’s or its licensor’s property, or that otherwise infringes Company’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any Company Content or third party content that appears on this Site.

User Feedback and Content

 

From time to time, the Site may permit the submission of feedback or content, such as emails, comments, contest entries, and product reviews, generated by you and other users (“User Content”). We are under no obligation to (1) maintain User Content in confidence; (2) pay any compensation for any User Content (unless advertised to be a paid content); or (3) to review, moderate, or respond to any User Content.

 

You are solely responsible for your own User Content and the consequences of transmitting, posting, or publishing it. Any User Content or other material, information or ideas that you submit to us or post or publish on the Site is non-confidential and non-proprietary. For this reason, we ask that you not send us any comments that you do not wish to assign to us, including any confidential information or any original creative materials such as stories, product ideas, computer code, or original artwork.

 

By submitting User Content, you represent and warrant that: (i) your User Content does not violate, infringe, or misappropriate any copyright, trademark, trade secret, patent or other intellectual property right, any right of privacy or publicity of any third party or any applicable law, rule or regulation, (ii) you own or have the legal right to use and authorize us and other Site users to use, copy, or reproduce your User Content as set forth in the paragraph below, including written consent to use of any product or the name, voice, likeness or any other applicable personal rights of each identifiable person featured or referenced in your User Content and (iii) your User Content does not violate our Acceptable Use Policy set forth below.

 

As between you and us, you will retain all of your ownership rights in and to your User Content. By submitting User Content, you hereby grant to us a perpetual, worldwide, non-exclusive, irrevocable, royalty-free, sublicensable (through multiple tiers) and transferable right and license to use, reproduce, distribute, edit, modify, translate, reformat, prepare derivative works based upon, display publicly, perform publicly and otherwise exploit your User Content, in whole or in part, for any purpose (including our commercial exploitation), including future rights that we (or our successor) may otherwise become entitled to that do not yet exist, as well as new uses, media, means and forms of exploitation throughout the universe yet to be developed.  You also hereby grant each user of the Site a non-exclusive license to access your User Content through the Site and to use, access, watch, reproduce, distribute, transmit, forward, display and perform such User Content in whole or in part, to the extent permitted by the Site under these Terms of Use.

 

We do not endorse any User Content or any opinion, recommendation, or advice expressed therein. Please note that Site visitors may post content that is inaccurate, misleading, or deceptive. We neither endorse nor are responsible for any opinion, advice, information, or statements made by third parties. The opinions expressed by third parties reflect solely the opinions of the individuals who submitted such opinions and may not reflect our opinions. We reserve the right, but are not obligated, to monitor User Content or other content sent to or through the Site. We have the right (but not the obligation) to refuse, remove, edit or delete any User Content and/or to terminate any user’s access to the Site for any reason – at our sole discretion. We take no responsibility for User Content.

 

Third Party Content

 

The Site may contain links to listings, descriptions, and images of products or services offered by third parties.  We provide such links as a convenience, and do not control or endorse these websites and services.  We try to keep this content error-free, but Company does not warrant that such listings, descriptions or images are accurate, complete, reliable, current, or error-free or that products of third parties comply with applicable laws.


You acknowledge and agree that we have not reviewed the content, advertising, products, services, or other materials that appear on such third party websites or services, and are not responsible for the legality, accuracy, or appropriateness of any such content, and shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of any such third party websites or services.


Your use of Third-Party Services is at your own risk and subject to any terms, conditions and policies applicable to such Third-Party Services.


Copyright Infringement Claims

 

If you believe in good faith that materials available on the Site infringe your copyright, you may send us a written notice by mail or e-mail, requesting that Company remove such material or block access to it.


Notices and counter-notices must be sent in writing to Company’s DMCA agent as follows:


DMCA Agent

KESS Enterprises, Inc. 

1880 Century Park East, #1600

Los Angeles, CA 90067

Email: legal@katherineschwarzenegger.com


You must comply with the “Elements of Notification” requirements set forth in 17 U.S.C. § 512. Please include as much detail as possible to allow us to identify the facts or circumstances, including, where possible:


  • A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted works that you believe are being infringed;

  • Specific identification and description of each copyrighted work you believe to have been infringed; if the copyrighted work is registered, please provide a copy of the copyright registration;

  • A description of where the infringing material is located (please be as detailed as possible and provide a URL or screenshot to help us locate the material you are reporting);

  • Contact information for the complaining party, such as a complete name, address, telephone number, and email address;

  • A statement that the complaining party has a good faith belief that use of the copyrighted work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

  • A statement that the information in the notification is accurate, and that the complaining party is the owner of the right that is allegedly infringed, or agent for the owner.


Upon receipt of your written notice, we will investigate the allegation and remove the complained-of material at our sole discretion.  You can refer to http://www.copyright.gov/ for details on available procedures.


Acceptable Use Policy

 

You may only use the Site for lawful purposes. In addition, you may not:

 

  • Use the Site for any illegal purpose, or in violation of any local, state, national, or international law;

  • Use the Site in a way which infringes the rights of anyone else or restricts or inhibits anyone else's use or enjoyment of the Site;

  • Use the Site in any way that interrupts, damages, impairs or renders the Site less efficient or useful;

  • Copy, modify, reverse-engineer, decompile, disassemble, alter or otherwise tamper with any software (including source code), databases and other technology that forms part of the Site (or authorize, encourage or assist any other person to do so);

  • Knowingly transmit any data that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful program or similar computer code designed to adversely affect the operation of any computer software or hardware;

  • Penetrate or attempt to penetrate the Site’s security measures; or

  • Introduce anything which alters the performance of the Site. 


Reliance on Information Posted 

 

The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information.  Any reliance you place on such information is strictly at your own risk.  We disclaim all liability and responsibility arising from any reliance placed on such information by you or any other visitor to the Site, or by anyone who may be informed of any of the Site’s contents.


Termination

 

If you violate these Terms of Use, your permission to use our Site will automatically terminate.  In addition, we, in our sole discretion, may suspend or terminate some or all of your access to the Site at any time, with or without notice to you.


Legal Notices & Electronic Communications

 

Except as explicitly stated otherwise, any notices you send to Company shall be sent by email to legal@katherineschwarzenegger.com.


In the case of notices Company sends to you, you consent to receive notices and other communications by Company via: posting notices on the Site, sending you an email at the email address you provided. You agree that all agreements, notices, disclosures, and other communications that Company provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing.


Indemnity

 

You agree to indemnify and hold Company, and its parent, affiliates, agents and licensors, and each of their respective employees, owners, officers, and directors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of (i) your use of the Site, including any User Content you submit, post to or transmit through the Site, (ii) your violation of these Terms of Use or (iii) your violation of any rights of any third party or other Site user.


Disclaimer of Warranties

 

We do not warrant that the quality of any products, services, information, or other material obtained through the Site will meet your expectations. We intend for the information, descriptions, prices, data, and other content contained in the Site to be accurate and reliable, but cannot guarantee their accuracy and reliability. As such, any information, descriptions, prices, data, and other content on the Site, including the products and merchandise sold through the Site, is provided “as is” and “as available” without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement, and any warranties arising through the course of dealing or course of trade. You expressly agree that your use of (or inability to use) the Site, including any information contained on the Site, is at your sole risk. Some jurisdictions do not allow the disclaimer of warranties, or conditions so such disclaimers may not apply to you.


Limitation on Liability

 

IN NO EVENT WILL COMPANY, OR ITS PARENT, AFFILIATES, OR SERVICE PROVIDERS, NOR THEIR RESPECTIVE OFFICERS, OWNERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, OR DISTRIBUTORS PROVIDING INFORMATION ON THIS SITE BE LIABLE TO ANY USER OF THE SITE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR ANY INFORMATION CONTAINED THEREIN, INCLUDING USER CONTENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 


Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party shall not exceed $100.00 USD.


Legal Disputes, Binding Arbitration

Read the following arbitration agreement carefully. Unless prohibited by local law and to the extent applicable, it limits certain rights, including your right to obtain relief or damages through court action or as a member of a class.  It contains procedures for mandatory binding arbitration and a class action waiver.

 

Any controversy or claim arising out of your use of the Site, these Terms of Use, and/or our Privacy Policy  shall be settled by binding arbitration before Judicial Arbitration and Mediation Services (“JAMS”), in a location determined by the arbitrator as set forth herein (provided that such location is reasonably convenient for claimant), or at such other location as may be mutually agreed upon by the parties, in accordance with the procedural rules for commercial disputes set forth in the Comprehensive Arbitration Rules and Procedures of JAMS (“JAMS Rules and Procedures”) then prevailing, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. Please go to www.jamsadr.com to see a complete copy of the JAMS Rules and Procedures or to submit a claim for arbitration. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. Alternatively, you may assert your claims in small claims court in accordance with these Terms of Use if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.


In resolving a claim for arbitration, the arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. In the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class, representative, or collective basis, or as a private attorney general on behalf of other persons similarly situated, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitrate the dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within sixty days after the demand for arbitration is made, unless further extended by mutual agreement of the parties. Disputes regarding the arbitrability of any claim shall be resolved by the arbitrator.


THE ARBITRATION OF DISPUTES PURSUANT TO THIS SECTION SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU MAY NOT BRING ANY CLAIM AS A PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHER SIMILARLY SITUATED PERSONS. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. Without in any way limiting the foregoing, you and Company agree that any individual arbitration commenced by you or by Company may be consolidated with any other individual arbitration(s) pending before JAMS in accordance with JAMS Comprehensive Rule 6(e), provided that either party makes such request.


BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL. DO NOT USE THE SITE IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.


United States Only

 

The Site is intended only for users in the United States of America. By using the Site, you agree and acknowledge that the Site is owned by Company in the United States and that data collected through the Site will be stored and processed in the United States. If you access and use the Site outside the United States, please be advised that your use of the Site is governed by United States law, which may not afford the same level of protection as laws in your country. We make no representations or warranties that the Site or any materials contained in them are valid, appropriate or available for use outside of the United States. If you access and use the Site outside the United States, you do so at your own risk and are responsible for compliance with applicable local laws. 

 

We reserve the right to limit the availability of the Site and/or the provision of any service, program or other product described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion. 

 

General Information

 

No waiver of any provision or any breach of these Terms of Use will constitute a waiver of any other provisions or any other or further breach. In the event that any provision of these Terms of Use is determined to be illegal or unenforceable, the balance of the Terms of Use shall continue to be fully valid, binding, and enforceable. These Terms of Use set forth the entire agreement between you and Company with respect to use of the Site and supersede any prior agreements between you and Company relating to such subject matter. These Terms of Use are not assignable, transferable or sublicensable by you except with our prior written consent. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms of Use. Any heading, caption or section title contained herein is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. Company’s performance of these Terms of Use is subject to existing laws and legal process, and nothing contained in these Terms of Use is in derogation of Company’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Company with respect to such use.

 

Questions?

 

If you have questions, comments or complaints about these Terms of Use or the Site, please contact us by e-mail at legal@katherineschwarzenegger.com or by mail using the details provided below:


KESS Enterprises, Inc.

1880 Century Park East, #1600

Los Angeles, CA 90067