Welcome and thank you for your interest in Kumbuya (“Kumbuya”), and our website located at www.kumbuya.com (the “Site”). Kumbuya provides a platform where individuals (each, a “Tribal Leader”) can form and manage online groups around particular interest or area of expertise. On the Site, Tribal Leaders have the ability to moderate and control certain content presented to the community, and to extend offers to purchase items from third parties (“Sellers”) to members of the community (“Members”, together with Tribal Leaders, Sellers, and other Site visitors, “Users”). These terms govern the use of any feature Kumbuya may make available either through the Site or through any other means such as mobile applications and APIs (collectively, the “Service”).
You must be an individual at least 13 years old to use the Service and must not have previously been removed or suspended from the Service for any reason. Certain plans or activities presented through the Service may have other age restrictions. By using the Service, you represent that (i) you are at least the minimum required age (in no case less than 13 years old) or and in any case that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms, and (ii) have not previously been removed or suspended from the Service. Further, by using or registering for the Service, you agree to abide by and comply with these Terms, and you acknowledge that you are accepting the benefit of the Service, subject to these Terms.
Kumbuya grants you permission to access and use the Service as set forth in these Terms and consistent with the intended features of the Service, provided that you do not reproduce, modify, publicly display, publicly perform, or distribute any part of the Service, including any materials obtained from or included within the Service and you do not engage in any of the prohibited uses described below.
In order to access some features of the Service, you will have to create an account. You hereby represent and warrant that the information you provide to Kumbuya upon registration (including information provided through your linked Facebook account, as applicable, or other third party Linked Accounts, as defined below), and at all other times, will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
As a registered User, you will have login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Kumbuya by e-mail to firstname.lastname@example.org. You are solely responsible for your own losses or losses incurred by Kumbuya and others (including other users) due to any unauthorized use of your account that occur prior to notifying Kumbuya that your account was compromised.
Kumbuya may provide Tribal Leaders with access to certain “embeddable widgets”, consisting of snippets of HTML code that enable the Tribal Leader to expose certain features of the Service through other web sites (“Widgets”). Tribal Leaders may embed Widgets on web sites owned and / or controlled by the Tribal Leader, solely as provided to you by Kumbuya and without modification of any kind, and in accordance with any applicable additional posted guidelines or restrictions. With the sole exception of the snippet of HTML code provided to you by Kumbuya for inclusion on your site, the foregoing does not grant you any right to reproduce or distribute any Kumbuya materials (including without limitation any image, code, or other file) on any other website. You must ensure that any logos, branding and other visual interface elements are visible and unmodified, and that any and all links back to the Site included in the Widget are implemented without modification and are functional across browsers. You may not use Widgets in a way that might confuse third parties as to the source or origin of the Widgets or the content they contain, the service the Widget connect to, or the content on the site you embed the Widget on. Further, your rights with respect to what materials you may incorporate into third party services are governed by separate terms, which may prohibit the use of Widgets. It is solely your responsibility to determine whether such use is permitted by a particular third party provider.
The Service is owned and operated by Kumbuya. The visual interfaces, Widgets, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Service provided by Kumbuya ("Site Content") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Site Content is the copyrighted property of Kumbuya or its subsidiaries or affiliated companies and/or third parties, except for User Content, to which you retain your copyrights. You agree and understand that Site Content may include Third Party Content, as set forth in further detail in Section 6, below. All trademarks, service marks, and trade names are proprietary to Kumbuya or its affiliates and/or third parties. You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Site Content, and nothing herein shall be interpreted to grant you any right or license under any intellectual property rights of Kumbuya or any third party.
Kumbuya may, now or in the future, allow you to link your account(s) on the Service to your accounts on third party services, such as social networking sites (“Linked Accounts”). If you link your account on the Service to a Linked Account, you are authorizing Kumbuya to store and use your access credentials to access your Linked Account on your behalf as your agent to integrate your experience with the Service with content, information, and features available through such Linked Account. This may include importing the contacts, preferences, interests or “likes” of the Linked Account, and/or pushing updates regarding your use of the Service out to your Linked Accounts. Linking, accessing or using a third party service through the Service in this manner may be subject to additional terms established by the applicable third party, and it is your sole responsibility to comply with such third party terms.
Kumbuya may contain or display through the Services various information, and other materials or content from third parties, including User Content (“Third Party Materials”). The display on or through the website and Services of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval of Kumbuya by any such third party or any affiliation between any such third party and Kumbuya. Furthermore, in using and accessing the Service, you agree that Kumbuya is in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. Kumbuya’s display of specific Third Party Materials does not suggest a recommendation by Kumbuya of the third party or any products, plans or service offered. Your interaction with any third party accessed through the Service (whether online or offline) is at your own risk, and Kumbuya will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any such third party or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with the third party.
The Service may contain references or links to third-party materials and services not controlled by Kumbuya or its suppliers or licensors. Kumbuya provides such information and links as a convenience to you and should not be considered endorsements or recommendations of such sites or any content, products or information offered on such sites. You acknowledge and agree that Kumbuya is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Service.
The Service allows you and other users to submit, post, and share content such as text, photos, audiovisual content, and other media content, including any materials submitted in connection with the posting of Offers(defined below) (“User Content”). You retain all your rights in User Content, but if you choose to provide any User Content to Kumbuya, we require a license to such User Content.
You retain all of your ownership rights in original aspects your User Content. By providing User Content to Kumbuya you hereby grant Kumbuya and its affiliates, sublicensees, partners, designees, and assignees of the Service (collectively, the “Kumbuya Licensees”) a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, transferable, worldwide license, without obligation, to use, reproduce, distribute, modify, adapt, publicly display, publicly perform, and otherwise exploit your User Content and derivatives thereof in connection with the Service and Kumbuya’s (and its successors’) business, including, without limitation, for marketing, promoting, and redistributing part or all of the Service (and derivative works thereof), in any media formats and through any media channels now known or hereafter discovered or developed.
You grant Kumbuya the right to use your name and/or likeness and/or any name and/or likeness that you submit in connection with your User Content if Kumbuya should choose, without compensation or need for your prior approval, or to exercise any of the rights licensed by you hereunder, or in connection with a fictional name or persona or without any attribution at all. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You hereby grant Kumbuya a non-exclusive, perpetual license to print, publish, broadcast and use, worldwide, in any media and at any time, your name, picture, voice, likeness, and/or biographical information for the purpose of operating and promoting the Service.
You are solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Kumbuya to use all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable the use of User Content in the manner contemplated by these Terms, and to grant the rights and license set forth herein, and (ii) your User Content, Kumbuya’s or any Kumbuya Licensee’s use of such User Content pursuant to these Terms, and Kumbuya’s or any Kumbuya Licensee’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity of any other person; (c) violate any applicable law or regulation, or constitute any false or misleading advertising or unfair business practice; or (d) require obtaining a license from or paying royalties to any third party for the exercise of any rights granted in these Terms.
In connection with your User Content, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Kumbuya or any third party; (ii) use any copyrighted content owned or controlled by a third party without obtaining the necessary permissions, licenses and authorizations for the use of such third-party content; (iii) submit material that is unlawful, defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) post advertisements or solicitations of business, or any “shill” or otherwise financially motivated reviews or other User Content related to any listings or information available through Kumbuya, or any rating, review, or feedback; (v) impersonate another person or entity or falsely state or otherwise misrepresent your identity or affiliation with a person or entity or the source of any information you submit; (vi) post User Content that would be harmful to minors in any manner; or (vii) reproduce, distribute, publicly display, publicly perform, adapt, or otherwise publish or cause to be published any other user’s User Content except as permitted by these Terms and the features of the Service.
Kumbuya makes no representations that it will publish or make available any User Content on the Service, including without limitation any Offer, and reserves the right, in its sole discretion, to reject or remove any User Content at any time with or without notice. Without limiting the generality of the preceding sentence, Kumbuya complies with the Digital Millennium Copyright Act, and will remove User Content upon receipt of a compliant takedown notice (see Section 10 titled “Digital Millennium Copyright Act”, below).
YOU UNDERSTAND THAT WHEN USING THE SERVICE, YOU WILL BE EXPOSED TO USER CONTENT AND THIRD PARTY CONTENT FROM A VARIETY OF SOURCES, AND THAT KUMBUYA IS NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH USER CONTENT OR THIRD PARTY CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO USER CONTENT AND THIRD PARTY CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST KUMBUYA WITH RESPECT THERETO. KUMBUYA DOES NOT ENDORSE ANY USER CONTENT OR THIRD PARTY CONTENT, OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN. UNDER NO CIRCUMSTANCES WILL KUMBUYA BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY USER CONTENT OR THIRD PARTY CONTENT.
Kumbuya does not control User Content and does not have any obligation to monitor such User Content for any purpose. Kumbuya may choose, in its sole discretion, to monitor, review, or otherwise access some or all User Content, but by doing so Kumbuya nonetheless assumes no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, or to monitor, review, or otherwise access other User Content, and Kumbuya assumes no responsibility for the conduct of the User submitting any User Content. You acknowledge that Kumbuya may or may not pre-screen User Content, but that Kumbuya and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Content that is available via the Service. Without limiting the foregoing, Kumbuya and its designees may, at any time and without prior notice, remove any User Content that in the sole judgment of Kumbuya violates these Terms or is otherwise objectionable, or for any other reason, with or without notice and with no liability of any kind. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Content, including any reliance on the accuracy, completeness, usefulness or legality of such User Content. You should exercise your independent discretion and judgment before downloading any other User Content.
Kumbuya respects the rights of copyright owners and expects its users to do the same. Therefore, as required by the Terms, infringing content may not be submitted to the Service or used in, whole or in part, in any User Content.
If you upload User Content that contains any copyrighted work, including literary works, visual works, musical works, sound recordings, audiovisual works, or other work or any combination of the foregoing, then you must be the owner of such works or have all required rights, licenses, consents, and permissions to use such works on the Service and grant the rights granted herein. In addition to being grounds for removal of your User Content, termination of your account, and any other remedy Kumbuya may have against you, your failure to own or obtain such rights may subject you to civil and/or criminal liability, the damages for which can be significant.
If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Kumbuya’s Designated Copyright Agent with the following information in writing:
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works on the Service;
(iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Kumbuya to locate the material;
(iv) information reasonably sufficient to permit Kumbuya to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
(vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.”). Please consult your legal counsel (or see 17 U.S.C. § 512) to confirm these requirements and your compliance therewith. It is Kumbuya’s policy to respond to notices of alleged infringement that comply with the DMCA. In addition, Kumbuya will promptly terminate without notice the accounts of Users that are determined by Kumbuya to be “repeat infringers.” If Kumbuya receives more than three takedown notices regarding a User’s User Content, then that User will be considered a repeat infringer and their account will be terminated.
Kumbuya’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Attention: Copyright Agent, Kumbuya, LLC, 222 W. Merchandise Mart Plaza, Suite 1212, 1871: Kumbuya, LLC, Chicago, IL, 60654, or by electronic mail at email@example.com. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Kumbuya customer service through copyright@ kumbuya.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Kumbuya provides a venue where Sellers can request that Tribal Leaders make their offers available to the Community Members (“Offers”). Kumbuya merely provides a platform to enable such offers and sales, and is not a party to or directly involved in the sales transactions that occur between Users, which are directly between the applicable Seller and User, other than providing a method for online display of offers and payment processing. As such, Kumbuya makes no representations as to the accuracy of any Offer, or the quality, safety or legality of items sold on the Site, the ability of buyers to pay for items ordered or the ability of Sellers to fulfill orders, or the true identity of any Tribal Leader, Member, Seller, or other User, and expressly disclaims any and all warranties with respect thereto. By using the Site to conduct a transaction whether acting as a buyer or seller, you agree that any such transactions are conducted at your own risk.
Offers must be presented to and approved by the Tribal Leader of each Community the Seller wishes extend such Offers to. Tribal Leaders may accept or reject any Offer in its sole discretion, or remove an Offer after having previously accepted it at any time for any reason or no reason. Kumbuya has no control over Tribal Leaders’ decisions to accept, reject, and / or remove any Offer and takes no responsibility for such decisions effects, financial or otherwise, on Sellers. In addition, Kumbuya reserves the right to remove Offers from the Service at any time for any reason or no reason, with no liability to Seller or Tribal Leader.
Seller sets its own listing price in the applicable Offer. Kumbuya adds a ten percent (10%) listing premium to the price set by Seller, which Kumbuya keeps as its fee for facilitating the processing of the transaction. The listing premium is not charged directly to the Seller and will be retained by Kumbuya out of the purchase price as a commission only in the event of a completed sale. In addition, 10% of the Seller’s listing price (i.e. the price before the listing premium is added) will be remitted to the Tribal Leader as a commission on a completed sale. For example, if a Seller lists an item for $20 on the Site, Kumbuya will add a $2 listing premium to the item’s total price so that potential buyers would see a list price of $22. Should a User purchase the Seller’s item, a total of $18 would go to the Seller, and the Tribal Leader and Kumbuya would each keep $2 as a commission. In the event of a chargeback, amounts payable to each of Seller and Tribal Leader’s in respect of such reversed charge will be deducted from the then-current balance. Kumbuya makes no representation or warranty that participation in any Offers will lead to any sales or revenue to either Seller or a Tribal Leader.
All sales transactions on the Site are currently processed by Kumbuya’s third party payment processor. This means that when a buyer purchases an item on the Site, a single, direct payment is made to Kumbuya for the total amount of the sale. Kumbuya will distribute amounts owed to Tribal Leaders and Sellers monthly if the outstanding balance owed exceeds $25. Payments will be issued in a manner of Kumbuya’s choosing, which may include, without limitation, electronic delivery, direct deposit, or physical check.
By making a purchase on the Site you agree to (i) pay all amounts due and owing to the Seller of the item; (ii) maintain accurate, up to date Kumbuya user account information that includes your e-mail address and phone number; (iii) not make false claims against or post erroneous, misleading, or otherwise improper reviews of Sellers on the Site; and (iv) attempt to resolve any disputes directly with the Seller or Kumbuya, before contacting your credit card company or bank. If you fail to pay any amounts due as a result of a transaction on the Site, whether by canceling your credit card, initiating an improper chargeback or by any other means, your account may be restricted, suspended or cancelled.
Offers are treated as firm offers to sell the item on the terms provided (including the addition of the listing premium), and you represent, warrant and covenant that you are and will be able to fulfill any order made in acceptance of such Offer. By publishing Offers on Kumbuya you agree to, and you represent and warrant that you do and will (i) maintain accurate, up to date Kumbuya user account information that includes your true identity, physical address, e-mail address, and phone number; (ii) offer and sell only tangible items on the Site (i.e. services for consulting, intellectual property licenses, gift or stored value cards, or personal care are not permitted, neither are virtual goods or currency); (iii) accurately describe the item(s) you are offering for sale and refrain from making any deceptive, misleading or false claims about the item (including without limitation the condition or utility of the item); (iv) ship items to buyers within 7 business days of the sale, or such earlier time that you state in your Offer; (v) and not offer or sell any item which is illegal, controlled, or regulated, or is on our list of Prohibited Items [http://www.kumbuya.com/contentpolicy/]. Sellers may create only a single Seller account, and may not have more than five (5) items listed for sale at any given time. You represent that you own and have the right to sell and transfer to third parties the item listed in an Offer on the terms presented in an Offer.
Sellers are responsible for all chargebacks incurred as a result of disputed transactions involving the Seller. A chargeback occurs when a credit cardholder contacts their bank to dispute a charge. Buyers may contact their bank to initiate a chargeback if the buyer is dissatisfied with the purchase (i.e. the items never arrived or when they arrived the items weren’t as advertised) or when the purchase was unauthorized (i.e. made by someone other than the cardholder). For each chargeback that occurs, Kumbuya will charge the Seller a $25 USD fee. This fee will be deducted from the any amounts owed to the Seller or if no amounts are due, the Seller will be sent an electronic invoice, payable upon receipt.
Kumbuya does not have any control over the actions of Users, nor can we ensure that any User will comply with these Terms, or with any separate terms on which Users may interact with each other. If you have a dispute with another User, including any dispute with a Seller or Tribal Leader, that dispute is directly between you and the other User, and you release Kumbuya (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. If you are a California resident, you waive California Civil Code §1542, which says:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.".
Any rating and feedback features Kumbuya may make available are solely for use for the bona-fide purpose of submitting feedback regarding the experience you had with the recipient of your rating or review. Any other use, misuse, or abuse of such rating and feedback systems is strictly prohibited. Without limiting the generality of the foregoing, i) you may not threaten to submit negative feedback or withhold positive feedback in order to receive benefits beyond those to which you are entitled (such as goods or services beyond those listed and purchased), ii) You may not condition performance of any obligation you incur through your use of the Service (such as the completion of any sale) on submission of positive feedback, and iii) You may not submit feedback or ratings for the purpose of manipulating another User’s rating.
Rating and feedback information submitted by a User may be made available through the Service to other Users.
Without prejudice to any rights or remedies you may have vis a vis any third party, submission of a negative rating or review is the sole remedy you have with Kumbuya for any dissatisfaction you may have with a transaction.
You agree not to use the Service or any aspect or feature thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party, or to engage in any fraudulent, illegal, unethical or otherwise improper transaction. Without limiting the proceeding sentence, you agree that you will not, do or attempt to:
A. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, or features that enforce limitations on the use of the Service or any content therein;
B. Use any manual or automated means to extract and/or compile content from the Service for any purpose;
C. Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
D. Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
E. Create a false identity or impersonate another for the purpose of misleading others as to the identity of the sender or the origin of a message;
F. Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs;
G. Interfere with or disrupt the Service, networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers;
H. Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of all or part of the Service, Site Content, Third Party Content, or User Content, or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of the Service other than as intended;
I. Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in your User Content;
J. Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation (commercial or otherwise); or
K. Use the Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
Kumbuya, in its sole discretion and for any reason or no reason, may terminate your account on the Service, disable your access to the Service (or any part thereof), discontinue the Service and any related services, or terminate any license or permission granted to you hereunder, at any time, with or without notice. You agree that Kumbuya shall not be liable to you or any third-party for any such termination. Without limiting the generality of the foregoing, Kumbuya may terminate your account in cases of actual or suspected fraud, or violations of these Terms or other laws or regulations, and any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Kumbuya may have at law or in equity.
If you are dissatisfied with the Service, then please let us know by e-mailing us at firstname.lastname@example.org. Your only remedy with respect to any dissatisfaction with (i) the Service, (ii) any of these Terms, (iii) any policy or practice of Kumbuya in operating the Service, or (iv) any content or information transmitted or made available through the Service, is to terminate your use of the Service. You may terminate your use by closing your account and discontinuing your use of any and all parts of the Service, or by providing Kumbuya with notice of termination at email@example.com. Kumbuya will close your account within two days after receiving notice.
Within thirty days following any termination by a Seller or a Tribal Leader, Kumbuya will remit any amounts payable in connection with sales of items pursuant to Offers, as set forth below, regardless of whether the then-current balance exceeds the minimum payment threshold.
You agree to indemnify and hold harmless Kumbuya and its parent, subsidiaries, affiliates or any related companies, licensors and suppliers, and their respective directors, officers, employees, agents, representatives, and contractors, and other Kumbuya users who use any User Content you upload to the Service or other users, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees) arising from or in any way related to (i) your use or misuse of the Service (including your use or misuse of Third Party Materials); (ii) your User Content, and in the case of Sellers, the items you sell through the Service; (iii) your breach or other violation of these Terms including any representations, warranties and covenants herein; (iv) your violation of the rights of any other person or entity, including, but not limited to claims that any User Content infringes or violates any third party intellectual property rights. Kumbuya reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You may not settle any matter without the prior written consent from Kumbuya.
THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE SITE, SITE CONTENT, OR ANY OTHER PRODUCT, SERVICE OR INFORMATION PROVIDED BY KUMBUYA), USER CONTENT, THIRD-PARTY CONTENT, AND ANY OTHER SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, USEFULNESS, THAT USE OF THE SERVICE WILL RESULT IN ANY INCOME OR PAYMENT, OR OTHERWISE. KUMBUYA MAKES NO WARRANTIES WITH RESPECT TO ANY ITEMS SOLD BY SELLERS, USER CONTENT, OR FOR THE ACTIONS OF ANY USERS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, KUMBUYA HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICUPAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, WITH RESPECT TO THE PRODUCTS OR SERVICES PROVIDED BY KUMBUYA.
IN NO EVENT WILL KUMBUYA, ITS OFFICERS OR DIRECTORS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH (I) YOUR USE OF THE SERVICE, SITE CONTENT, THIRD PARTY MATERIALS OR THE SITE; (II) THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICE OR ANY CONTENT; OR (III) PLANS MADE OR INFORMATION ACQUIRED THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, (I) ANY FEES OR COSTS ASSOCIATED WITH CANCELLED, INTERRUPTED OR DELAYED PLANS; (II) ANY FEES OR COSTS RESULTING FROM MISINFORMATION OR FAILURES IN COMMUNICATION; (III) AND ANY ACCIDENTS OR UNEXPECTED EVENTS OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF KUMBUYA IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL KUMBUYA, ITS OFFICERS OR DIRECTORS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED GREATER THAN FIVE HUNDRED DOLLARS ($500).
APPLICABLE LAW MAY NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND KUMBUYA, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND KUMBUYA, KUMBUYA’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT KUMBUYA WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
In the interest of resolving disputes between you and Kumbuya in the most expedient and cost effective manner, you and Kumbuya agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Kumbuya are each waiving the right to a trial by jury or to participate in a class action.
Notwithstanding subsection (A), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and Kumbuya will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Kumbuya.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Kumbuya's address for Notice is: Kumbuya, LLC, 222 W. Merchandise Mart Plaza, Suite 1212, 1871:Kumbuya LLC, Chicago, IL, 60654. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Kumbuya may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Kumbuya shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Kumbuya shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Kumbuya in settlement of the dispute prior to the arbitrator’s award.
In the event that you commence arbitration in accordance with these Terms, Kumbuya will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Cook County, Illinois, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Kumbuya for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
YOU AND KUMBUYA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Kumbuya agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In the event that Kumbuya makes any future change to this arbitration provision (other than a change to the Kumbuya's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Kumbuya's address for Notice, in which case your account with Kumbuya shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
If only Subsection F of this Section 24 or the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in Section 26 shall govern any action arising out of or related to these Terms.
Kumbuya may provide you with notices by electronic mail, regular mail or postings on the Service, and you agree to electronic delivery of all such notices. If Notice is provided by electronic mail, notice will be deemed given twenty-four hours after electronic mail is sent, unless Kumbuya is notified that the electronic mail address is invalid. If notice is provided by posting through the Service, then notice will be deemed given upon such posting. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Service. In such case, notice will be deemed given three days after the date of mailing.
These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of Illinois without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Kumbuya agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Cook County, Illinois for the purpose of litigating all such claims or disputes. This is the entire agreement between you and Kumbuya relating to the subject matter herein, and supersedes all previous communications, representations, understandings and agreements, either oral or written, between you and Kumbuya with respect to said subject matter. These Terms shall not be modified or waived except in a writing signed by both parties, or by a change to these Terms as provided in Section 18, above. In the event any of the provisions of these Terms are held unenforceable or invalid by a court of competent jurisdiction, such provisions shall be deemed severed, and the remaining provisions thereof shall remain in full force and effect. The failure of Kumbuya to enforce, in any one or more instances, any of the provisions herein shall not be construed as a waiver of the prior or future performance of any such terms or conditions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Kumbuya as a result of these Terms or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Kumbuya other than pursuant to these Terms. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Kumbuya without restriction, including by operation of law, merger, or sale of all or substantially all of the assets to which this agreement pertains. Any assignment attempted to be made in violation of these Terms shall be void. The headings and captions in this Agreement are used for convenience only and are not to be considered in interpreting this Agreement.
The services hereunder are offered by:
222 W. Merchandise Mart Plaza, Suite 1212, 1871: Kumbuya, LLC, Chicago, IL 60654
Last updated December 11th, 2012