Last Updated Date: 4/28/22
Welcome to Koko!
PLEASE BE AWARE THAT SECTION 15 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE BE AWARE THAT SECTION 1.6 (KOKO COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CHATBOT MESSAGES AND PUSH NOTIFICATION.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY KOKO IN ITS SOLE DISCRETION AT ANY TIME IN ACCORDANCE WITH SECTION 17.2 BELOW. PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS.
1. THE SERVICES.
The Services, and the information and content available on the Services are protected by copyright laws throughout the world. Subject to the Agreement, Koko grants you a limited license to reproduce portions of the Services for the sole purpose of using the Services for your personal purposes. Unless otherwise specified by Koko in a separate license, your right to use any and all of the Services is subject to the Agreement.
1.1. Services Overview. Koko’s Services are designed to connect users to free mental health resources. The Services are not intended to provide medical advice to users and are provided for informational purposes only. Your interaction with the Chatbot is with an artificial intelligence chatbot and not a human. The Chatbot is restricted in the means of response. YOU ACKNOWLEDGE AND AGREE THAT KOKO DOES NOT PROVIDE ANY MEDICAL, PSYCHOLOGICAL, OR OTHER CLINICAL ADVICE OF ANY KIND OR MAKE ANY MEDICAL, PSYCHOLOGICAL OR OTHER CLINICAL DECISIONS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR RELATIONSHIP WITH ANY HEALTHCARE PROVIDER, INCLUDING ANY HEALTHCARE PROVIDER WHOSE CONTACT INFORMATION IS MADE AVAILABLE THROUGH THE SERVICES, IS SOLELY WITH SUCH HEALTHCARE PROVIDER. YOU ACKNOWLEDGE AND AGREE THAT KOKO DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, VERACITY, COMPLETENESS, APPROPRIATENESS, OR SAFETY OF ANY INFORMATION OR RESOURCES RECEIVED OR PROVIDED OR MADE AVAILABLE THROUGH THE SERVICES. KOKO DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, CLINICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION OR RESOURCES MADE AVAILABLE THROUGH THE SERVICES. THE KOKO PARTIES (AS DEFINED IN SECTION 8) DO NOT THEMSELVES PROVIDE SERVICES REQUIRING PROFESSIONAL LICENSURE OR QUALIFICATIONS (E.G., PHYSICIAN OR OTHER MEDICAL OR PSYCHOLOGICAL PROFESSIONAL SERVICES) AND THE SERVICES PROVIDED BY THE CHATBOT AND/OR APPLICATION DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL, PSYCHOLOGICAL OR OTHER CLINICAL ADVICE OR OPINION. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL, MENTAL, PSYCHOLOGICAL, OR OTHER HEALTH CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL OR CLINICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SERVICES. THE SERVICES ARE NOT INTENDED FOR EMERGENCY USE. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR SEEK IMMEDIATE OR OTHER APPROPRIATE EMERGENCY ATTENTION. IF YOU ARE SUICIDAL OR ARE EXPERIENCING SUICIDAL THOUGHTS, IMMEDIATELY CALL 911 OR CONTACT A SUICIDE PREVENTION HOTLINE SUCH AS THE NATIONAL SUICIDE PREVENTION LIFELINE AT 1-800-273-8255. IF YOU ARE OUTSIDE OF THE UNITED STATES, PLEASE CONTACT YOUR LOCAL CRISIS LINE: www.iasp.info/crisis-centres-helplines/.
1.2 No Physician-Patient Relationship with Koko. The information generated by us or the Services should not be interpreted as a substitute for a professional therapist or other healthcare professional consultation, evaluation, or treatment, and the information made available on or through the Services should not be relied upon when making medical or other clinical decisions or to diagnose or treat a medical, mental, psychological, or health condition. Nothing contained in the Services should be construed as such advice or diagnosis. YOUR USE OF THE SERVICES DOES NOT CREATE A PATIENT OR LICENSED MEDICAL PROFESSIONAL RELATIONSHIP, PHYSICIAN-PATIENT PRIVILEGE, PSYCHOTHERAPIST-PATIENT PRIVILEGE, OR DOCTOR-PATIENT CONFIDENTIALITY BETWEEN YOU AND ANY OF THE KOKO PARTIES OR ANY OTHER USERS OF THE SERVICES. You are urged and advised to seek the advice of a professional therapist, physician or a medical professional with any questions you may have regarding your mental health, or any other information or resources that may be referenced, discussed, or offered under the Services. You represent to us (which representation shall be deemed to be made each time you use the Services), that you are not using the Services or participating in any of the activities offered by the Services for purposes of seeking medical attention. You further agree that, before using the services, you shall consult your physician. If any information you receive or obtain from using the Services is inconsistent with the medical advice from your physician, you agree to follow the advice of your physician.
1.3 Application License. Subject to your compliance with the Agreement, Koko grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system); and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
1.4 Updates. You understand that the Services are evolving. As a result, Koko may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that Koko may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
1.5 Certain Restrictions. You agree not to: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) frame or utilize framing techniques to enclose any trademark, logo, or other portion of the Services (including images, text, page layout or form) of Koko; (c) use any metatags or other “hidden text” using Koko’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post or transmit any part of the Services in any form or by any means; (f) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (g) send through the Services unsolicited or unauthorized advertising, promotional materials, contests, sweepstakes, barter, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (h) impersonate any person or entity, including any employee or representative of Koko; (i) interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; (j) provide false, misleading, or inaccurate information to Koko or any other member; (k) attempt to probe, scan, or test the vulnerability of the Services or any associated system or network; (l) intentionally or unintentionally violate any applicable law; (m) stalk or otherwise harass another user or employee of the Services; (n) abuse other users’ personal information that you receive through the Services, such as to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (o) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (p) interfere with any other user’s use and enjoyment of the Services; (q) request or offer to perform a request that is illegal or violates any of the terms set forth herein; or (r) attempt to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl,” or “spider” any pages contained the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials), introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Koko, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any of the Services terminates the licenses granted by Koko pursuant to the Agreement.
2.1 Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an anonymous account on the Services (“Account”), has a valid account on the social networking service (“SNS”) through which the user has connected to the Services (each such account, a “Third-Party Account”), or has an account with the provider of the Application for the user’s mobile device.
2.2 Access Through a SNS. If you access the Services through a SNS as part of the functionality of the Services, you understand that Koko may access, make available and store (if applicable) any information, data, text, emojis, GIFs, stickers, usernames, messages, tags and/or other materials (collectively, “Content”) that you have provided to the Services via your Third-Party Account (“SNS Content”). Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 3.1 (Types of Content)) for all purposes of the Agreement. Please note that if a Third-Party Account or associated service becomes unavailable, or Koko’s access is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND KOKO DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Koko makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Koko is not responsible for any SNS Content.
2.3. Registration Data. In registering an account on the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to (y) notify Koko immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Koko has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Koko has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Koko reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Koko, or if you have been previously banned from any of the Services.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Koko.
2.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all Content, including the Services, is the sole responsibility of the party from whom such Content originated. This means that you, and not Koko, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and that you and other Registered Users of the Services, and not Koko, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Koko has no obligation to pre-screen Content (including, but not limited to, User Content), although Koko reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat or text communications. For the avoidance of doubt, you will not be identified as the source of Your Content unless you reveal personally identifiable information in connection with Your Content. In the event that Koko pre-screens, refuses or removes any Content, you acknowledge that Koko will do so for Koko’s benefit, not yours. Without limiting the foregoing, Koko shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Koko in writing elsewhere, Koko has no obligation to store any of Your Content that you Make Available on the Services. Koko has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Koko retains the right to create reasonable limits on Koko’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Services and as otherwise determined by Koko in its sole discretion.
4.1 Services. Except with respect to Your Content and User Content, you agree that Koko and its suppliers own all rights, title and interest in the Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the Services. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Services by implication, estoppel, or other legal theory, and all rights in and to the Services not expressly granted in this Agreement are hereby reserved and retained by Koko.
4.2 Trademarks. Koko, Kokocares.org, Koko.ai, Koko AI, the Koko logo and all related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Koko and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
4.3 Your Content. Koko does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.4 License to Your Content. You grant Koko a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive, transferable and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, prepare derivative works of, publicly perform, publicly display, and otherwise fully exploit Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users and in connection with our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each Registered User of the Services a non-exclusive, perpetual license to access Your Content through the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Koko, are responsible for all of Your Content that you Make Available on or in the Services.
4.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Koko through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Koko has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Koko a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Koko’s business.
5. COMMUNITY GUIDELINES. As a condition of use, you agree not to (and shall not permit any third party to) Make Available any Content or take any action using the Services that: (a) may constitute, contribute to, depict, or encourage a crime, illegal or terrorist activity, or a violation or infringement of any third party’s rights; (b) is unlawful, harmful, threatening, abusive, harassing, inflammatory, defamatory, libelous, discriminatory, deceptive, fraudulent, invasive of another’s privacy, tortious, offensive, vulgar, hateful, or is racially, ethnically, or otherwise objectionable (in our sole discretion); (c) posts or submits a photograph of another person without that person’s permission; (d) contains adult content, including obscene, pornographic, and/or sexual terms, descriptions and/or images, nudity, profanity, or graphic violence; (e) may create a risk of, glorify, encourage, or threaten violence, harm, physical or mental injury, emotional distress, death, disability, disfigurement, self-harm, or any other loss or damage to you or any other person or to any animal or to any property; (f) exploits political agendas or “hot button” issues for commercial use, or that contains hate speech based upon the race, sex, national origin, religious affiliation, marital status, sexual orientation, gender identity, or language of an individual or group; (g) you do not have the right to Make Available or to take under any law under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (h) deceptively impersonates another person or entity or contains information that is fraudulent or that you know is not correct and current; (i) harms minors in any way, or solicits or otherwise attempts to gain any information from a minor; (j) forges headers or otherwise manipulates identifiers in order to disguise the origin of any Content or other materials transmitted to or through the Services; (k) attempts to identify any anonymous user; (l) may constitute the receipt or provision of clinical services, including but not limited to the practice of medicine or psychology; or (m) we deem in violation of Section 1.5.
6. INVESTIGATIONS. Koko may, but is not obligated to, monitor or review the Services and Content at any time. Without limiting the foregoing, Koko shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Koko does not generally monitor user activity occurring in connection with the Services or Content, if Koko becomes aware of any possible violations by you of any provision of the Agreement, Koko reserves the right to investigate such violations, and Koko may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. INTERACTIONS WITH OTHER USERS.
7.1. User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Koko reserves the right, but has no obligation, to intercede in such disputes. You agree that Koko will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users. The Services may contain User Content provided by other Registered Users. Koko is not responsible for and does not control User Content. Koko has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
8. INDEMNIFICATION. You agree to indemnify and hold Koko, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Koko Party” and collectively, the “Koko Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any of the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Koko reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Koko in asserting any available defenses. This provision does not require you to indemnify any of the Koko Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
9. DISCLAIMER OF WARRANTIES AND CONDITIONS.
9.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, YOUR INTERACTIONS WITH ANY OTHER USERS, IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE KOKO PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. THE KOKO PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) THAT DEFECTS WILL BE CORRECTED; (d) THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (e) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (f) THE SERVICES WILL IMPROVE YOUR WELLBEING OR IDENTIFY AND PREVENT ALL INSTANCES OF HARM, INCLUDING BUT NOT LIMITED TO SUICIDE. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. KOKO MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES. NOTE THAT THE CHATBOT FUNCTION IS NOT INTENDED TO REPLACE THE ADVICE OR SERVICES OF A LICENSED OR OTHER TRAINED PROFESSIONAL. YOU ACKNOWLEDGE AND AGREE THAT ANY CONDUCT YOU ENGAGE IN AS A RESULT OF CHATBOT COMMUNICATIONS OR INFORMATION PROVIDED BY THE CHATBOT IS AT YOUR OWN RISK. THE KOKO PARTIES DO NOT (1) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR RESOURCES PROVIDED WITHIN, OR IN CONNECTION WITH, THE SERVICES; OR (2) ADOPT, ENDORSE, OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION OR RESOURCES. UNDER NO CIRCUMSTANCES WILL THE KOKO PARTIES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON SUCH INFORMATION OR RESOURCES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KOKO OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.2 Beta Services. FROM TIME TO TIME, KOKO MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT KOKO’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9.3 No Medical Services. YOU ACKNOWLEDGE AND AGREE THAT YOUR RELATIONSHIP WITH ANY HEALTHCARE PROVIDER, INCLUDING ANY HEALTHCARE PROVIDER WHOSE CONTACT INFORMATION IS MADE AVAILABLE THROUGH THE SERVICES, IS SOLELY WITH SUCH HEALTHCARE PROVIDER. THE KOKO PARTIES DO NOT THEMSELVES PROVIDE SERVICES REQUIRING PROFESSIONAL LICENSURE OR OTHER SIMILAR QUALIFICATIONS (E.G., PHYSICIAN, PSYCHOLOGIST, OR OTHER CLINICAL PROFESSIONAL SERVICES) AND THE SERVICES PROVIDED BY THE CHATBOT AND/OR APPLICATION DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL OR OTHER CLINICAL ADVICE OR OPINION. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR SEEK IMMEDIATE OR OTHER APPROPRIATE EMERGENCY ATTENTION. IF YOU ARE SUICIDAL OR ARE EXPERIENCING SUICIDAL THOUGHTS, IMMEDIATELY CALL 911 OR CONTACT A SUICIDE PREVENTION HOTLINE SUCH AS THE NATIONAL SUICIDE PREVENTION LIFELINE AT 1-800-273-8255. IF YOU ARE OUTSIDE OF THE UNITED STATES, PLEASE CONTACT YOUR LOCAL CRISIS LINE: www.iasp.info/crisis-centres-helplines/.
9.4 No Physician-Patient Relationship. YOUR USE OF THE SERVICES DOES NOT CREATE A PATIENT OR LICENSED MEDICAL PROFESSIONAL RELATIONSHIP, PHYSICIAN-PATIENT PRIVILEGE, PSYCHOTHERAPIST-PATIENT PRIVILEGE, OR DOCTOR-PATIENT CONFIDENTIALITY OR ANY OTHER SIMILAR RELATIONSHIP BETWEEN YOU AND ANY OF THE KOKO PARTIES OR ANY OTHER USERS OF THE SERVICES.
9.5 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE KOKO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE KOKO PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. THE KOKO PARTIES MAKE NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE KOKO PARTIES MAKE NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES.
9.6 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT KOKO DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES, INCLUDING USERS THAT MAY BE OR REPRESENT THEMSELVES TO BE MEDICAL OR OTHER CLINICAL PROFESSIONALS. KOKO MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICES.
9.7 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Koko to monitor such materials and that you access these materials at your own risk.
10. LIMITATION OF LIABILITY.
10. 1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL THE KOKO PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT KOKO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (e) THE USE OF ANY CONTENT, INFORMATION, OR OTHER MATERIAL ON THE SERVICES OR LINKED TO THROUGH THE SERVICES; OR (f) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A KOKO PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A KOKO PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A KOKO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, THE KOKO PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) $100; OR (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A KOKO PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A KOKO PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A KOKO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
10.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KOKO AND YOU.
11. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
It is Koko’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Koko by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Koko’s Copyright Agent for notice of claims of copyright infringement is as follows: Rob Morris | Koko AI, Inc. | 2021 Fillmore St. #204, San Francisco, CA 94115 | Email: [email protected]
12. MONITORING AND ENFORCEMENT.
Koko reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Koko; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.If Koko becomes aware of any possible violations by you of the Agreement, Koko reserves the right to investigate such violations. If, as a result of the investigation, Koko believes that criminal activity has occurred, Koko reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Koko is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Koko’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Koko, its Registered Users or the public, and all enforcement or other government officials, as Koko in its sole discretion believes to be necessary or appropriate.
13. TERM AND TERMINATION.
13.1Term. The Agreement commences on the date when you accept it (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
13.2 Termination of Services by Koko. If you have materially breached any provision of the Agreement, or if Koko is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Koko has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Koko’s sole discretion and that Koko shall not be liable to you or any third party for any termination of your Account.
13.3 Termination by You. If you want to terminate this Agreement, you may do so by (a) notifying Koko at any time; and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Koko’s address set forth below.
13.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Koko will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, licenses to Your Content, warranty disclaimers, indemnification, governing law, venue, and limitation of liability.
13.5 No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Koko community, is discontinued by Koko due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Koko community through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Koko reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
14. INTERNATIONAL USERS.
The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Koko intends to announce such Services or Content in your country. The Services are controlled and offered by Koko from its facilities in the United States of America. Koko makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
15. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with Koko and limits the manner in which you can seek relief from us.
15.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Koko, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Koko may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
15.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Corporation Service Company at 251 Little Falls Drive, Wilmington, Delaware, 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Koko will pay them for you. In addition, Koko will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement; and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Koko. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4 Waiver of Jury Trial. YOU AND KOKO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Koko are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in San Francisco County, California. All other disputes, claims, or requests for relief shall be arbitrated.
15.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [email protected], within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Koko username (if any), the email address you used to set up your Koko account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.7 Severability. Except as provided in Section 15.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Koko.
15.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Koko makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Koko at the following address: 2021 Fillmore Street #204 San Francisco, CA 94115.
16. THIRD-PARTY SERVICES.
16.2 Third-Party Websites, Applications and Ads. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Koko. Koko is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Koko provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk.. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
16.3 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Koko and not with the App Store. Koko, not the App Store, is solely responsible for the Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any of the Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
16.4 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: You acknowledge and agree that (i) the Agreement is concluded between you and Koko only, and not Apple, and (ii) Koko, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Koko and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Koko. You and Koko acknowledge that, as between Koko and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.You and Koko acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Koko and Apple, Koko, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. You and Koko acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
17. GENERAL PROVISIONS.
17.1 Electronic Communications. The communications between you and Koko may take place via electronic means, whether you visit the Services or send Koko e-mails, or whether Koko posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Koko in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Koko provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
17.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Koko’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Koko may assign, transfer or delegate any of its rights and obligations hereunder without your consent.
17.4 Force Majeure. Koko shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6 Governing Law; Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Koko agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco County, California. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
17.7 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
17.8 Notice. Where Koko requires that you provide an e-mail address, you are responsible for providing Koko with your most current e-mail address. In the event that the last e-mail address you provided to Koko is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Koko’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Koko at the following address: 2021 Fillmore Street #204 San Francisco, CA 94115. Such notice shall be deemed given when received by Koko by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.11 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you 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. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Koko are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Koko products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.12 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.