Terms of Service

Last revised: 2022-10-28

Welcome and thanks for your interest in Koalesce Designs. When you sign up for an account or use Koalesce Designs product, you’re agreeing to these terms and conditions (“Terms”) which forms a legal agreement between you and Koalesce Designs (the “Agreement”). Koalesce Designs (“Koalesce Designs”, “we”, “us”, or “our” throughout this Agreement) is related digital designs, app development, websites, content, and other Service (taken together, the “Service”) built for eCommerce stores which allows you to create, send, and manage email marketing campaigns for your store visitors and customers. Koalesce Designs is a California  S-Corporation whose legal name is Koalesce, Inc. d/b/a Koalesce Designs. Koalesce Designs has employees, independent contractors, and representatives (collectively, our “Team”). Because you’re a customer of our Service or a representative of an entity that’s a customer of our Service, you’re a “User” (aka “you”) according to this Agreement.

 

Our Service is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Koalesce Designs Privacy Policy) and procedures that may be published from time to time by Koalesce Designs. You agree that we may automatically upgrade our Service, and these Terms will Servicely to any upgrades. If you do not agree to all the Terms of this Agreement, then you may not access or use any of our Service. If these Terms are considered an offer by Koalesce Designs, acceptance is expressly limited to these Terms.

 

Privacy policy

Please refer to our privacy policy for information on how Koalesce Designs collects, uses, and discloses your information when you use our Service.

 

1. Accounts, passwords, and security

In order to be eligible to use our Service, you must:

* Be at least 18 years old and able to enter into contracts

* Provide accurate, current, and complete contact & billing information during the registration process

* not be based in Cuba, Iran, North Korea, Syria, or any other 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.

 

By using the service, you represent and warrant that you meet all the requirements and that you will (a) maintain the security of your password and identification; (b) maintain and promptly update the information you provide to us, to keep it accurate, current and complete; and (c) accept all risks of unauthorized access to the other information you provide to us.

You are responsible for safeguarding the password that you use to access the Service. When you register for the Service, you should use a strong password, including a combination of upper and lower case letters. The Service are not intended for users who are under the age of 18 or unable to enter into contracts.

You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission from us.

2. Acceptable use and conduct

As an email marketing platform, the reputation and sending practices of our customers is incredibly important. Bad emails can cause issues for everyone, so we’ve put this section together with the goal of keeping our platform safe & secure.

You may not use our Service for any illegal or unauthorized purpose, nor may you, in the use of this Service, violate any laws in your jurisdiction (including but not limited to copyright laws) as well as the laws of the United States or the Commonwealth of California.

You will not use this Site or the Services in a manner (as determined by Koalesce Designs in its sole and absolute discretion) that:

• Is illegal, or promotes or encourages illegal activity;
• Promotes, encourages or engages in the exploitation of children, or any activity related to the proliferation of child sexual abuse material (CSAM);
• Promotes, encourages or engages in terrorism, violence against people, animals, or property;
• Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
• Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
• Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking;
• Infringes on the intellectual property rights of another User or any other person or entity;
• Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
• Interferes with the operation of this Site or the Services found at this Site;
• Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
• Contains false or deceptive language, or unsubstantiated or comparative claims, regarding DreamHost or DreamHost’s Services.
• You will not perform any false, abusive or fraudulent activity. You will not perform any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;

 

We don’t allow the following businesses or types of services to use our Service:

• Escort services
• Pharmaceutical products
• Gambling services or products
• Multi-level marketing
• Affiliate marketing
• Work from home, make money online, and lead generation opportunities
• Gambling services or products
• Credit repair and get out of debt opportunities
• List brokers or list rental services
• Selling “Likes” or followers for a social media platform

Additionally, you may not send these types of emails through our Service:

* Any email offering to sell illegal goods or services

* Any email that violates CAN-SPAM laws

* Any email containing information that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric, data concerning health or data concerning an individual’s sex life or sexual orientation

* Any other emails that we find, in our sole discretion, hurt our reputation or our deliverability.

 

Finally, we don’t allow any account with the primary purpose of promoting or inciting harm toward others or the promotion of discriminatory, hateful, or harassing content.

If we feel that you’re violating any of the provisions of this section (as determined by our sole discretion), we may terminate your account immediately.

 

3. Rights

1. You may receive technical support for the Services by via ticketed email support. At our discretion, we may limit support to accounts who have an account paid plan for the Service.
2. We reserve the right to modify or terminate our Service for any reason, without notice at any time.
3. We reserve the right to refuse service to anyone for any lawful reason at any time.
4. We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
5. Verbal or written abuse of any kind (including threats of abuse or retribution) of our Team can result in immediate account termination.
6. We do not pre-screen content and it is in our sole discretion to refuse or remove any Content that is available via the Service.
7. We reserve the right to provide our Service and Service to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that Koalesce Designs employees and contractors may also be Koalesce Designs customers/merchants and that they may compete with you, although they may not use your confidential information in doing so.
8. We may view, copy, and internally share content from your account to create tools that help us improve the Service.

 

4. Fees, payment, and renewal

1. Fees. Our Service is free with an optional paid upgrade (“Paid Service”). By using a Paid Service, you agree to pay the specified fees at the time they are due and as outlined in the automatic renewal section or on a post-pay basis until you cancel, which you can do at any time by emailing help@koalescedesigns.com or visiting the Billing page in your account.

You agree that your payment method may be charged by one of our affiliated entities. If, during your purchase, your payment was identified as being processed in the United States, your transaction will be processed by Koalesce Designs.com. If, during your purchase, your payment was identified as being processed in a country that is not listed above, your transaction may be processed by an entity within the disclosed country that is affiliated with our local payment service provider, and subject to the provisions of our Privacy Policy.

1. Payment. Fees for a Paid Service are due at the time we specify when you order the Paid Service or upon automatic renewal. If your payment fails or a Paid Service is otherwise not paid for on time, we may cancel or revoke your access to the Paid Service. If you contact your bank or credit card company to decline or reverse the charge of fees for a Paid Service, we may revoke your access to our Services in general.
2. Automatic renewal. A PAID SERVICE WILL AUTOMATICALLY RENEW UPON EXPIRATION OF THE THEN CURRENT TERM FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD. FOR EXAMPLE, IF YOUR LAST SERVICE PERIOD IS FOR ONE MONTH, YOUR RENEWAL PERIOD WILL TYPICALLY BE FOR ONE MONTH.  UNLESS YOU CANCEL THE AUTOMATIC RENEWAL BY DOWNGRADING TO A FREE OPTION OR CANCELLING THE PAID SERVICE, WE WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT, INCLUDING APPLICABLE TAXES, FROM THE PAYMENT METHOD ASSOCIATED WITH THE PAID SERVICE IN YOUR ACCOUNT. RENEWALS WILL BE CHARGED AT OUR THEN CURRENT RATES, WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD. IF YOU DO NOT WISH FOR A PAID SERVICE TO AUTOMATICALLY RENEW, YOU MUST CANCEL THE AUTOMATIC RENEWAL BY DOWNGRADING TO A FREE OPTION OR CANCELLING THE PAID SERVICE. WE SHALL NOT BE LIABLE FOR ANY INTERRUPTION OR LOSS OF A PAID SERVICE THAT ARISES OUT OF OR RELATES TO A FAILURE OF A PAID SERVICE TO AUTOMATICALLY RENEW.
3. Refunds. While you may cancel a Paid Service at any time, refunds are issued in our sole discretion.
4. Fee changes. As outlined in the automatic renewal section, we may change our fees at any time. When applicable, we may give you advance notice of the fee changes. If you don’t agree with the fee changes, you can cancel your Paid Service.

 

5. Cancellation

1. You may cancel your account at anytime by canceling the Service from your dashboard.
2. Once cancellation is confirmed, your Content may be deleted from the Service or Service. Since deletion of all data is final, please be sure that you do in fact want to cancel your account before doing so.
3. If you cancel access to the Service in the middle of the month, you will receive one final invoice via email. Once that invoice has been paid you will not be charged again.
4. We reserve the right to modify or terminate the Service for any reason, without notice, at any time.

 

6. No Spam; Liquidated Damages

No Spam. We do not tolerate the transmission of spam. We monitor all traffic to and from our web servers for indications of spamming and maintain a spam abuse complaint center to register allegations of spam abuse. Customers suspected to be using our products and services for the purpose of sending spam are fully investigated. If we determine there is a problem with spam, we will take the appropriate action to resolve the situation.

We define spam as the sending of Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications. This can include, but is not limited to, the following:

1. Email Messages
2. Newsgroup postings
3. Windows system messages
4. Pop-up messages (aka “adware” or “spyware” messages)
5. Instant messages (using AOL, MSN, Yahoo or other instant messenger programs)
6. Online chat room advertisements
7. Guestbook or Website Forum postings
8. Facsimile Solicitations
9. Text/SMS Messages

 

We will not allow our servers and services to be used for the purposes described above. In order to use our products and services, you must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but you must also abide by this no spam policy. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have “opted-in” to receive messages. They must include a legitimate return address and reply-to address, the sender’s physical address, and an opt-out method in the footer of the email or fax. Upon request by us, conclusive proof of opt-in may be required for an email address or fax number.

If we determine the account, products, or services in question are being used in association with spam, we may re-direct, suspend, or cancel any account, website hosting, domain registration, email boxes, or other applicable products or services. In such event, at our election, we may require you to respond by email to us stating that you will cease to send spam and/or have spam sent on your behalf and to require a non-refundable reactivation fee to be paid before the site, email boxes, and/or services are reactivated.

We encourage all customers and recipients of email generated from our products and services to report suspected spam. Suspected abuse can be reported by email.

Liquidated Damages. You agree that we may immediately terminate any Account which we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then you agree to pay us liquidated damages in the amount of $1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your Account.

 

7. DMCA notice and takedown procedures

1. Koalesce Designs supports the protection of intellectual property. If you would like to submit (i) a trademark claim for violation of a mark on which you hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which you hold a bona fide copyright. If someone believes that one of our users is infringing their intellectual property rights, they can send a DMCA Notice via email to help@koalescedesigns.com with the complaint, including all requisite information.
2. Upon receiving a DMCA Notice, we may remove or disable access to the material claimed to be a copyright infringement.
3. Once provided with a notice of takedown, the user can reply with a counter notification to help@koalescedesigns.com if they object to the complaint.
4. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the user from engaging in the infringing activity, otherwise we restore the material.

 

8. Intellectual property and customer content

This Agreement does not transfer from Koalesce Designs to you any Koalesce Designs or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with us. Koalesce Designs, Koalesce, Inc, the Koalesce Designs logo, Diversity Avatar Stickers logo, Modular Mask logo, DZN Sandbox & logotype(s), and all other trademarks, service marks, graphics and logos used in connection with our Services, or are trademarks or registered trademarks of Koalesce Designs or Koalesce Designs’s licensors. Other trademarks, service marks, graphics and logos used in connection with our Services may be the trademarks of other third parties. Your use of our Services grants you no right or license to reproduce or otherwise use any Koalesce Designs or third-party trademarks.

We do not claim any intellectual property rights over the material you provide to the Service. All material you upload remains yours. You can remove your Service access at any time by canceling your account. This may, but will not necessarily, remove all content you have stored in the Service. If you wish the Service data to be expunged, simply send an email to help@koalescedesigns.com with your store URL and a message requesting the Service data to be deleted.

By uploading images and item description content to the Service, you agree to allow other internet users to view them and you agree to allow us to display and store them and you agree that we can, at any time, review all the content submitted by you to its Services or Service.

You retain ownership over all content that you submit to our Service; however, you agree to allow others to view your content.

 

9. Limited license

Unless otherwise indicated in the Service, the Service and all content and other materials contained therein, including, without limitation, Koalesce Designs logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “our Materials”) are the proprietary property of Koalesce Designs or its licensors or users and are protected by U.S. and international intellectual property laws.

You are granted a personal, limited, non-sublicensable, non-exclusive, revocable license to access and use our Materials in accordance with these Terms for the sole purpose of enabling you to use and enjoy the Service.

Except as otherwise expressly permitted in these Terms, you may not: (a) resell or use our Materials for any commercial purpose; (b) distribute, publicly perform or public display of any our Materials; (c) modify or otherwise make any derivative uses of our Materials, or any portion thereof; (d) use any data mining, robots or similar data gathering or extraction methods; (e) download (other than the page caching) any portion of our Materials or any information contained therein; (f) decompile, disassemble, decode or reverse engineer our Materials, translate our Materials or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying our Materials or reduce our Materials by any other means to a human perceivable form; (g) obscure, alter or remove any notice of any copyright, trademark, trade name, service mark, logo or other intellectual property or proprietary right designation Service appearing on or contained within our Materials; or (h) use our Materials other than for their intended purpose. Any use of our Materials other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation, copyright and trademark laws and applicable communications regulations and statutes.

You acknowledge that all right, title and interest in and to our Materials, including all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein or associated therewith, are and will remain with Koalesce Designs or its third party licensors.

 

10. Changes

Koalesce Designs may, in its sole and absolute discretion, change or modify these Terms, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of these Terms as last revised. If you do not agree to be bound by these Terms as last revised, do not use (or continue to use) this Site or the Services. In addition, Koalesce Designs may occasionally notify you of changes or modifications to these Terms by email. It is therefore very important that you keep your account (“Account”) information current. Koalesce Designs assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. In addition, Koalesce Designs may terminate Your use of Services for any violation or breach of any of the terms of these Terms by You. KOALESCE DESIGNS RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THIS SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME.

 

11. Termination

We may terminate your access to all or any part of our Service at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement, you may simply discontinue using our Services. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

 

12. Disclaimer of warranties

Our Services are provided “as is.” Koalesce Designs and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Koalesce Designs nor its suppliers and licensors, makes any warranty that our Services will be error free or that access thereto will be continuous or uninterrupted, or that the results that may be obtained from the use of Service will be accurate or reliable, or that the quality of any products, Service, information, or other material purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.

 

13. General representation and warranty

You represent and warrant that your use of our Services:

• Will be in strict accordance with this Agreement;
• Will comply with all applicable laws and regulations (including without limitation all applicable laws regarding online conduct and acceptable content, the transmission of technical data exported from the United States or the country in which you reside, privacy, and data protection); and
• Will not infringe or misappropriate the intellectual property rights of any third party.

If you’re located in the European Economic Area, the United Kingdom, or Switzerland (collectively, the “EEA”) and use the Service to send email anyone located in the EEA, and/or otherwise collect information as a result of creating or sending emails, you represent and warrant to Koalesce Designs that:

• You will clearly post, maintain, and abide by a publicly accessible privacy notice on the online stores from which the underlying data is collected that satisfies the requirements of applicable data protection laws, describes your use of our Service, and includes a link to our Privacy Notice to Visitors to our Users.
• You will obtain all necessary permissions and valid consents required to lawfully transfer data to us and to enable such data to be lawfully collected, processed, and shared by us for the purposes of providing the Service or as otherwise directed by you.
• You will comply with all laws and regulations applicable to the emails sent through the Service, including those relating to acquiring consents (where required) to lawfully send emails and the content of your emails.

In addition, if you are an EEA Member, you understand and agree that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your contacts made under EU Data Privacy Laws, or, alternatively, we may direct any such contacts to you so that you can respond to the request accordingly.

You agree to indemnify and hold us harmless from any losses, including all legal fees and expenses, that result from your breach of this section 13.

14. US economic sanctions

You expressly represent and warrant that your use of our Services and or associated services and products is not contrary to applicable U.S. Sanctions. Such use is prohibited, and Koalesce Designs reserves the right to terminate accounts or access of those in the event of a breach of this condition.

 

15. Discontinued Services; End of Life Policy

Koalesce Designs reserves the right to cease offering or providing any of the (i) Services or (ii) individual features, functionalities, or aspects of the Services at any time, for any or no reason, and without prior notice. Although Koalesce Designs makes great effort to maximize the lifespan of all its Services and features, functionalities, or aspects of the Services, there are times when a Service or specific feature, functionality, or aspect of a Service that we offer will be discontinued or reach its End-of-Life (“EOL”). If that is the case, those Services, or the specific feature, functionality, or aspect of that Service, will no longer be supported by Koalesce Designs, in any way, effective on the EOL date.

 

Notice and Migration. In the event that any Service we offer has reached or will reach EOL, we will attempt to notify you thirty or more days in advance of the EOL date. It is your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. In either case, Koalesce Designs will either offer a comparable Service for you to migrate to for the remainder of the term of your purchase, a prorated in-store credit, or a prorated refund, to be determined by Koalesce Designs in its sole and absolute discretion. Koalesce Designs may, with or without notice to you, migrate you to the most up-to-date version of the Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration. In the event that a feature, functionality, or aspect of any Service we offer has reached or will reach EOL, then we will attempt to notify you thirty or more days in advance of the EOL date. However, if the Service maintains a least reasonably equivalent functionality without such feature, functionality, or aspect, as determined by Koalesce Designs in its sole and absolute discretion, Koalesce Designs will not be required to offer a comparable feature or functionality for the Service or a refund.

No Liability. Koalesce Designs will not be liable to you or any third party for any modification, suspension, or discontinuance of any of the Services we may offer or facilitate access to.

 

16. Limitation of Liability

IN NO EVENT SHALL KOALESCE DESIGNS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT KOALESCE DESIGNS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL KOALESCE DESIGN’S TOTAL AGGREGATE LIABILITY EXCEED $10,000.00 U.S. DOLLARS.

THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.

 

17. Indemnification

You agree to protect, defend, indemnify and hold harmless Koalesce Designs and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Koalesce Designs directly or indirectly arising from (i) your use of and access to this Site or the Services found at this Site; (ii) your violation of any provision of these Terms or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of these Terms or your use of this Site or the Services found at this Site.

 

18. Waiver and Complete Agreement

The failure of Koalesce Designs to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. The Terms constitute the entire agreement between you and Koalesce Designs and govern your use, superseding any prior agreements between you and Koalesce Designs (including, but not limited to, any prior versions of the Terms).

DISPUTES, BINDING INDIVIDUAL ARBITRATION AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS

PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.

(A) Disputes. The terms of this Section shall apply to all Disputes between you and Koalesce Designs. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and Koalesce Designs arising under or relating to any Koalesce Designs Services or Products, Koalesce Designs’s websites, these Terms, or any other transaction involving you and Koalesce Designs, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND KOALESCE DESIGNS AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR KOALESCE DESIGNS FOR (I) TRADE SECRET MISAPPROPRIATION, (II) PATENT INFRINGEMENT, (III) COPYRIGHT INFRINGEMENT OR MISUSE, AND (IV) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.

 

(B) Binding Arbitration. You and Koalesce Designs further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these Terms; (ii) these Terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these Terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in Section 9 of these Terms and 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 that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.

 

(C) Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.

 

(D) Dispute Notice. In the event of a Dispute, you or Koalesce Designs must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Koalesce Designs must be addressed to: Koalesce Designs, 1049 El Monte Ave, Suite C #86, Mountain View, CA 94040 USA., Attn.: Legal Department (the “Koalesce Designs Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Koalesce Designs and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or Koalesce Designs may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.

 

(E) WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND KOALESCE DESIGNS AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. NEITHER YOU NOR KOALESCE DESIGNS WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OF PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.

 

(F) Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the American Arbitration Association (“AAA”) and governed by the Consumer Arbitration Rules of the AAA (“AAA Rules”) in conjunction with the rules set forth in these Terms, except that AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The AAA Rules are at www.adr.org or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws, as limited by the Limitation of Liability set forth in Section 9 of these Terms. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence (or principal place of business if you are a small business), or in Santa Clara County, California, at your option.

 

(G) Initiation of Arbitration Proceeding. If either you or Koalesce Designs decide to arbitrate a Dispute, we agree to the following procedure:

1. Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.adr.org (“Demand for Arbitration: Consumer Arbitration Rules”).
2. Send one copy of the Demand for Arbitration to AAA by mail at American Arbitration Association Case Filing Services 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043.

iii. Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.

 

(H) Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by Koalesce Designs or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Koalesce Designs is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.

 

(I) Arbitration Fees and Payments.

1. Disputes involving $75,000.00 or less. Koalesce Designs will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If you reject Koalesce Design’s last written settlement offer made before the arbitrator was appointed (“Koalesce Design’s last written offer”), your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than Koalesce Design’s last written offer, Koalesce Designs will: (i) pay the greater of the award or $1,000.00; (ii) pay twice your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless you and Koalesce Designs agree on them.
2. Disputes involving more than $75,000.00. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.

iii. Disputes involving any amount. In any arbitration you commence, Koalesce Designs will seek its AAA or arbitrator’s fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration Koalesce Designs commences, Koalesce Designs will pay all filing, AAA, and arbitrator’s fees and expenses. Koalesce Designs will not seek its attorney’s fees or expenses from you in any arbitration. Fees and expenses are not included in determining the amount in dispute.

 

(J) Claims or Disputes Must be Filed Within One Year. To the extent permitted by law, any claim or dispute to which this Section applies must be filed within one year in small claims or in arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed. If not filed within one year, the claim or dispute will be permanently barred.

 

(K) 30-Day Opt-out Period. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION IN THIS DISPUTES SECTION, YOU MUST NOTIFY KOALEDCE DESIGNS BY E-MAILING INFO@KOALESCEDESIGNS WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS (UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW). In the e-mail, you must provide your (a) first name, (b) last name (c) address, (d) phone number, and (e) account number(s) and state the following: “I wish to opt out of the arbitration provision contained in Koalesce Design’s Terms.” By providing your information in the method above, you are opting out of the agreement to arbitrate contained in Koalesce Design’s Terms. Your opt-out request will only be valid if made within thirty (30) days of first accepting the Terms. In the event that you opt-out consistent with the procedure set forth above, all other terms shall contained herein shall continue to apply, including those related to the applicable governing law and the court(s) in which legal disputes may be brought.

 

(L) Amendments to this Section. Notwithstanding any provision in these Terms to the contrary, you and Koalesce Designs agree that if Koalesce Designs makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Koalesce Designs’s address) in these Terms, Koalesce Designs will notify you and you will have thirty (30) days from the date of notice to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these current Terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.

 

(M) Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms.

 

(N) Exclusive Venue for Other Controversies. Koalesce Designs and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Santa Clara County, Calorifina, or the United States District Court for the District of California, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy. You also agree to waive the right to trial by jury in any such action or proceeding.

 

19. Translation

These Terms of Service were originally written in English (US). We may translate these terms into other languages. In the event of a conflict between a translated version of these Terms of Service and the English version, the English version will control.

 

20. Miscellaneous

This Agreement constitutes the entire agreement between Koalesce Designs and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Koalesce Designs, or by our posting of a revised version.

If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.

You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Koalesce Designs may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

21. Questions and contact information

If you have any questions, concerns, complaints or comments in any way related to your use of the Service, please contact us at help@koalescedesigns.com.

 

Koalesce Inc. d/b/a Koalesce Designs
13010 Morris Road

STE 650

Alpharetta, GA 30004 USA.