Welcome to Koko! This Terms of Use Agreement sets forth the legally binding terms and conditions between you and Koko AI, Inc., (“Koko,” “we,” “us,” or “our”) governing your access to our websites, products, and services (collectively, the “Services”). Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features (“Supplemental Terms”). All applicable Supplemental Terms are incorporated by reference into this Terms of Use Agreement (collectively, the “Agreement”). If this Terms of Use Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control solely with respect to such features.
BY AFFIRMATIVELY AGREEING TO THIS TERMS OF USE AGREEMENT OR OTHERWISE ACCESSING AND/OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, AND (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH KOKO. THE TERM “YOU” REFERS TO THE INDIVIDUAL IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE 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: https://www.getsupport.org/countries/
FOR U.S. CUSTOMERS ONLY: PLEASE BE AWARE THAT SECTION 12 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND KOKO (THE “ARBITRATION AGREEMENT”). AMONG OTHER THINGS, SECTION 12 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 12 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 12 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US THROUGH BINDING, FINAL ARBITRATION, WITH LIMITED EXCEPTIONS, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR OTHER REPRESENTATIVE PROCEEDING OR CLASS-WIDE ARBITRATION; 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.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY KOKO IN ITS SOLE DISCRETION AT ANY TIME IN ACCORDANCE WITH SECTION 14.2 BELOW. PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS.
1. THE SERVICES.
1.1 Services Overview. Koko’s Services are designed to connect users to free mental health resources. Certain features of the Services may enable you to receive responses that simulate conversation (the “Chat Feature”); please note that the Chat Feature uses a pre-defined script and does not converse through generative artificial intelligence.
1.2 No Medical Advice. The Services are not intended to provide medical advice to users and are provided for informational purposes only. 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 6) 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 CHAT FEATURE 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.
1.3 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.
1.4 Koko Communications. By providing your email address to subscribe to our newsletter, you agree to receive emailed communications from us, as further described in our Privacy Policy. Additionally, if you interact with certain features of our Services, including the Chat Feature, you agree to receive push notifications through the Services, as further described in our Privacy Policy. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
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 email 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. REGISTRATION.
2.1 Anonymous Accounts. The Services may enable you to create an anonymous account (an “Account”) through a third-party service such as a social networking service or mobile application provider (each, a “Third-Party Service”) to access certain features of the Services (as a “Registered User”).
2.2 Access Through a Third-Party Service. If you access the Services through a Third-Party Service, you understand that Koko may access, make available and store (as described by our Privacy Policy) information such as referral source identifiers and risk classifications that you have provided to the Services via your Third-Party Service account (“Third-Party Service Content”). Unless otherwise specified in the Agreement, all Third-Party Service Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Agreement. Please note that if a Third-Party Service becomes unavailable, or Koko’s access is terminated by the Third-Party Service provider, then Third-Party Service Content will no longer be available on and through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THIRD-PARTY SERVICE PROVIDERS 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 SERVICES. Koko makes no effort to review any Third-Party Service Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Koko is not responsible for any Third-Party Service Content.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all information, data, text, emojis, GIFs, stickers, usernames, messages, tags and/or other materials (collectively, “Content”) 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, email, 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. 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. COMMUNITY GUIDELINES.
4.1 Restrictions on Use. 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) Makes Available any 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.
4.2 Investigations. Koko reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion, including if such Content violates the Agreement or any applicable law; (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, or threatens the personal safety of users of the Services or the public; (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.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. 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.
4.3 Interactions With Other Users.
a. 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.
b. 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.
5. OWNERSHIP.
5.1 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.
5.2 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.
5.3 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.
5.4 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) solely for the purposes of creating, improving, operating and providing the Services to you and to our other Registered Users and in connection with our mission, including without limitation to provide access to the Chat Feature, personalize your experience with the Services, and provide support for the Services. You also grant each Registered User of the Services a non-exclusive, perpetual license to access, use, display, and distribute Your Content submitted to “public” areas of the Services or through messaging features of 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.
5.5 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.
6. 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.
7. DISCLAIMER OF WARRANTIES AND CONDITIONS.7. INTERACTIONS WITH OTHER USERS.
7.1 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 CHAT FEATURE 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 CHAT FEATURE COMMUNICATIONS OR INFORMATION PROVIDED BY THE CHAT FEATURE 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.
7.2 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.
7.3 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 CHAT FEATURE 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/.
7.4 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.
7.5 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.
7.6 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.
7.7 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.
8. LIMITATION OF LIABILITY.
8.1 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.
8.2 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.
8.3 User Content. EXCEPT FOR KOKO’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN KOKO’S PRIVACY POLICY, KOKO ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), CHATBOT COMMUNICATIONS OR PERSONALIZATION SETTINGS.
8.4 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.
8.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KOKO AND YOU.
9. 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 email 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: copyright@kokocares.org
10. TERM AND TERMINATION
10.1 Term. 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.
10.2 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.
10.3 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.
10.4 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.
10.5 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.
11. 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.
12. ARBITRATION AGREEMENT.
12.1 Applicability of Arbitration Agreement. If you live in the U.S., subject to the terms of this Arbitration Agreement, you and Koko agree that any disagreement, controversy, or claim arising out of or relating in any way to your access to or use of the Services, any communications you receive from Koko, this Agreement and prior versions of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and Koko may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; 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). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that were not noticed or that involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
12.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Koko. If that occurs, Koko is committed to working with you to reach a prompt, low‐cost and mutually beneficial resolution. You and Koko agree to participate in good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and Koko agree that as part of these efforts, either party has the option to ask the other to meet and confer telephonically (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate.To initiate Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Such Notice to Koko should be sent by mail to our offices located at 2021 Fillmore Street #204 San Francisco, CA 94115. The Notice must include: (a) your name, telephone number, mailing address, and e‐mail address associated with your account (if you have one); (b) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (c) a description of the Dispute. Koko will send Notice, including a description of the Dispute, to your email address or regular address on file. It is your responsibility to ensure your email and regular address are correct and remain up to date.The Informal Dispute Resolution process lasts forty-five (45) days and is a mandatory precondition to commencing arbitration. During this period, either party has the option to ask the other to participate in an Information Dispute Resolution Conference as part of a good faith effort to resolve the Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms or organizations represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in Informal Dispute Resolution.
12.3 Waiver of Jury Trial. YOU AND COMPANY 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 shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.4 Waiver of Class and Other Non-Individualized Relief. EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall affect the terms and conditions under the subsection 12.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Koko agree that the particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Koko from participating in a class-wide or mass settlement of claims.
12.5 Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration, and any arbitration. If Informal Dispute Resolution does not resolve satisfactorily within forty-five (45) days after receipt of a Notice, you and Koko agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the National Arbitration & Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (a) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration, and the account username (if applicable), as well as the email address associated with any applicable account; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (d) a statement certifying completion of the Informal Dispute Resolution process as described above; and (e) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. Any Request you send to Koko should be sent by mail to our offices located at 2021 Fillmore Street #204 San Francisco, CA 94115. Koko will provide the Request to your email address on file. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b): (i) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“Counsel’s Certification”). Unless you and Koko otherwise agree, or the Batch Arbitration process discussed in subsection 12.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM fee schedules (the “Fee Schedules”). You and Koko agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential. You and Koko agree that at least fourteen (14) days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.
12.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from NAM’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then NAM will appoint the arbitrator in accordance with NAM Rules, provided that if the Batch Arbitration process under subsection 12.9 is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch.
12.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes regarding the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes regarding the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. 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 award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
12.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). To the extent, following a presentation on the merits, on its own motion or a party’s, and after affording a reasonable opportunity to respond, an arbitrator determines that a party who commenced arbitration did not bring its claim(s) consistent with Counsel’s Certification and the standards set forth in Federal Rule of Civil Procedure 11(b), the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration costs and arbitrators’ fees the responding party incurred under the Fee Schedules.
12.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Koko agree that in the event that there are twenty-five (25) or more individual Requests of a substantially similar nature filed against Koko by or with the assistance of the same law firm, group of law firms, or organizations (“Claimants’ Counsel”), within a ninety (90) day period, NAM shall (a) administer the arbitration demands in batches of 100 Requests per batch (or, if between twenty-five (25) and ninety-nine (99) individual Requests are filed, a single batch of all those Requests, and, to the extent there are fewer than 100 Requests remaining after the batching described above, a final batch consisting of the remaining Requests); (b) appoint one arbitrator for each batch; and (c) provide for the resolution of each batch on a consolidated basis with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be selected by Claimants’ Counsel or, if Claimants’ Counsel does not have a preference, by the arbitrator, and one final award (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible.All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issue(s) and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Koko.You and Koko agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings.This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.
12.10 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” if any part or parts of this Arbitration Agreement (other than Section 12.9) 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. However, if Section 12.9 of this Arbitration Agreement is found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in San Francisco, California. You further agree that any Dispute that you have with Koko as detailed in this Arbitration Agreement must be initiated within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
12.11 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: 2021 Fillmore Street #204 San Francisco, CA 94115, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, 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 arbitration agreements that you may currently have with us, including any previous versions of this Arbitration Agreement to which you agreed, and has no effect on any arbitration agreements with us you may enter in the future.
12.12 Modification. You and we agree that Koko retains the right to modify this Arbitration Agreement in the future. Any such changes will be posted at https://kokocares.org/terms-of-use-agreement and you should check for updates regularly. Notwithstanding any provision in this Agreement to the contrary, we agree that if Koko makes any future material change to this Arbitration Agreement, it will notify you. Your continued use of the Koko website and/or Services, including the acceptance of products and services offered on the Koko website following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. If you have previously agreed to a version of this Agreement with an arbitration agreement and you did not validly opt out of arbitration, changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of arbitration. Koko will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
12.13 Governing Courts. To the extent that the Dispute is not covered by any arbitration agreement between you and us, it shall proceed before the state or federal courts located in San Francisco, California (except for small claims court actions which may be brought in the county where you reside).
13. PARTNER SERVICES.
13.1 Partner Service Providers. Certain features, aspects, software products, and services offered through the Services are provided, in whole or in part, by third-party partners of Koko (“Partner Services” as provided by “Partner Service Providers”). In order to use Partner Services, you may be required to enter into additional terms and conditions with Partner Service Providers. This Agreement applies only to the Services, and not to the services of any other person or entity, and your right to use such Partner Services as part of the Services is subject to and governed by the terms and conditions applicable to such Partner Services, as supplied by the Partner Service Provider. In the event of a conflict between the terms of this Agreement and the terms of such third-party terms, the terms of the third party shall control with regard to your use of the relevant Partner Service. You further acknowledge and agree that a Partner Service Provider may collect and use certain information about you, which may include your personal information and/or protected health information. Any exchange of data, including protected health information or other interactions between you and a Partner Service Provider, is solely between you and that provider. Prior to providing information to any Partner Service Provider, you should review their privacy policy. If you do not understand or do not agree to the terms of a Partner Service Provider’s privacy policy, you should not use the related Partner Services.
13.2 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.
14. GENERAL PROVISIONS.
14.1 Electronic Communications. Communications between you and Koko may take place via electronic means, whether you visit the Services or send Koko emails, or whether Koko posts notices on the Services or communicates with you via email. 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”).
14.2 Modifications to the Agreement. Koko may modify the terms of this Agreement at any time in its sole discretion. When changes are made, Koko will make a new copy of the Terms of Use Agreement available within the Services and any new Supplemental Terms will be made available from within the Services. We will also update the “Last Updated” date. Any changes will be effective immediately for new users and will be effective thirty (30) days after posting notice of such changes on the Services for existing Registered Users, provided that any material changes shall be effective for existing Registered Users upon the earlier of (a) thirty (30) days after posting notice of such changes on the Services; or (b) thirty (30) days after dispatch of an email notice of such changes to such Registered Users. Koko may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you may stop using the Services and terminate this Agreement in accordance with Section 10.3. Otherwise, your continued use of the Services constitutes your acceptance of such change(s).
14.3 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.
14.4 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.
14.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: hello@kokocares.org. 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.
14.6 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.
14.7 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
14.8 Notice. Where Koko requires that you provide an email address, you are responsible for providing Koko with your most current email address. In the event that the last email 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 email 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.
14.9 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.
14.10 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.
14.11 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.
14.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
14.13 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.
