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Last modified: May 5th, 2017

Welcome to Kanoa! These Terms of Service apply to the website and all other online properties (the “Site”) operated by Kanoa, Inc., a Delaware corporation (“Kanoa”, “we”, or “us”). The use of the Site, including the purchase of any Products (as defined below) (collectively, the “Services”) is subject to the following terms and conditions (the “Terms”, or “Agreement”). Please read these Terms carefully. By using this Site, you agree to these Terms as well as any other terms, guidelines or rules that apply to any portion of this Site, without limitation or qualification. If you do not agree to these Terms, then you must exit the Site immediately and discontinue any use of the information or products obtainable or accessible through the Site. If you have any questions about the Terms, please contact us at https://kanoa.desk.com.

 

We provide the Site in order to enable you to browse and purchase wireless headphones (“the “Products”). BY ACCESSING AND USING THE SERVICES IN ANY MANNER, YOU ARE "ACCEPTING" AND AGREEING TO BE BOUND BY THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT UNCONDITIONALLY ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU SHALL NOT (AND SHALL HAVE NO RIGHT TO) ACCESS OR USE THE SERVICES OR PURCHASE THE PRODUCTS. IF THE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. THESE TERMS SHOULD BE READ IN CONJUNCTION WITH KANOA’S PRIVACY POLICY AND COPYRIGHT POLICY. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS THE SERVICES.

Wherever used in these Terms, “you”, “your”, “Customer”, or similar terms means the person or legal entity accessing or using the Services.  If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms.

Kanoa reserves the right, at any time, to update and change any or all of these Terms, in its sole discretion, including but not limited to the fees and charges associated with the use of the Services or the Products. If Kanoa does so, it will post the modified Terms on the Site and will update the "Last Modified" date above. Kanoa may also notify you via email of any changes that, in our sole discretion, materially impact these Terms.  Continued use of the Services following the effective date of changes to these Terms shall constitute your consent to such changes. You are responsible for regularly reviewing the most current version of the Terms currently available at: https://getkanoa.com/pages/terms-of-service.

 

Privacy. 

We have adopted a Privacy Policy that you should refer to in order to fully understands how we collect and use your information. The Privacy Policy is hereby incorporated into these Terms by reference.

 

Limited License.

Kanoa grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Service for your own individual use subject to the other terms of this Agreement.

 

Use of the Services.

You agree not to resell the Service. You may not modify, reverse engineer, decompile or disassemble the Service. You may not copy, adapt, alter, modify, translate, or create derivative works of the Service without our written authorization. You may not permit other individuals to use the Service, including but not limited to shared use via a network connection, except under the terms of this Agreement. You may not rent, lease, loan, sublicense, distribute, or otherwise transfer rights to the Service. You may not circumvent or disable any technological features or measures in the Service for protection of intellectual property rights. You may not use the Service in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. You may not use or access the Site or Service to compile data in a manner that is used or usable by a competitive product or service. Any such forbidden use shall immediately terminate Your license to the Service.

You furthermore agree that:

a.    You shall not use or access the Service if you are under the age of 13. If you are between the ages of 13 and 17, you represent that your legal guardian has reviewed and agreed to these Terms; 
b.    You shall not have more than one account at any given time, and shall not create an account using a false identity or information, or on behalf of someone other than yourself;
c.    You shall not have an account or use the Service if you have previously been removed from the Site by us;
d.    You shall not use your account or the Services to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages to anyone;
e.    You shall not use your account or the Services to engage in any illegal conduct;
f.    During your use, you may be required to provide us with certain personal information, which may include your name, birth date, e-mail address, and payment information. This information will be held and used in accordance with Kanoa’s Privacy Policy. You agree that you will supply accurate and complete information to us, and that you will update that information promptly after it changes.

     

    Account Security

    You are solely responsible for activity that occurs on your account and it is your responsibility to protect your personal data and maintain the confidentiality of your user information and password. You are also responsible for immediately notifying us of any unauthorized use of your account, or breach of your account information or password. We will not be liable for any loss that you may incur as a result of someone else using your username or password, either with or without your knowledge. To the extent allowable by law, you shall be liable for any expenses and reasonable attorney’s fees for your failure to safeguard user and password information and/or promptly notify us about unauthorized use of your account or breach of your account information or password.

     

    User Content

    “User Content" means any communications, images, writings, creative works, sounds, and all the material, data, and information that you upload or transmit through the Service, or that other users upload or transmit. By transmitting or submitting any User Content while using the Service, you affirm, represent and warrant that such transmission or submission is (a) accurate and not confidential; (b) not in violation of any applicable laws, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the User Content; (c) free of viruses, adware, spyware, worms or other malicious code.

     

    You hereby grant Kanoa and a perpetual, irrevocable, worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content.

     

    Customer Feedback

    You may from time to time provide suggestions, comments or other feedback to Kanoa with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for Kanoa notwithstanding anything else. You shall, and hereby do, grant to Kanoa a non-exclusive, worldwide, perpetual, irrevocable, transferable, sub licensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

     

    Third Party Sources

    You understand and agree that by using the Services you may be exposed to content from a variety of third-party sources (“Third-Party Content”). Kanoa does not endorse, own, or control any opinions expressed by third parties that you encounter in the Services. Kanoa is not responsible for the accuracy, usefulness, or lawfulness of such Third-Party Content. You understand and acknowledge that Third-Party Content might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. Your use of Third-Party Content is at your sole risk and you agree to waive and hereby to waive, any legal or equitable rights or remedies you have or may have against Kanoa with respect thereto, and to the extent permitted by applicable law, agree to indemnify and hold harmless Kanoa, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Services.

     

    Kanoa does not have any obligation to preview, monitor, flag, modify, filter, or remove Third-Party Content that you may find offensive or objectionable, however, Kanoa reserves the right to review and remove or exclude Third-Party Content its Site, that Kanoa, in its sole discretions, believes to be unlawful, inaccurate, offensive or otherwise objectionable or unacceptable to Kanoa.

     

    Acceptable Use Policy 

    Kanoa may suspend or terminate your access to the Services for abusive practices that degrade the performance of the Services for you and/or other customers of Kanoa.

     

    Third-Party Services

    You acknowledge that the Services may enable or assist you to access, interact with, and/or purchase services from third parties via third-party websites or applications (the “Third-Party Services”). When you access Third-Party Services, you do so at your own risk. Kanoa does not endorse these Third-Party Services and does not control them in any matter. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not Kanoa. It is your responsibility to take appropriate steps to determine whether accessing a Third-Party Site is appropriate, and to protect your personal information and privacy on such Third-Party Site. Kanoa makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party.

     

    Third-Party Devices

    You understand that the Product may only be compatible with certain devices manufactured by third parties, and Kanoa makes no warranty with respect to such third-party hardware/software components or their compatibility with the Product.

     

    Fees and Payments

    The price for Products available for purchase through the Site will be displayed to you on the Site. When you place an order for a Product, you permit Kanoa to charge the credit card, debit card or other payment method you have chosen for your purchase in the total amount of your order (including any shipping and taxes). The Site currently uses multiple third parties to process payments (the “Third-Party provider”). Kanoa shall not be liable for any payment or similar issues that arise due to the Third-party Provider and may change the Third-party Provider from time to time.

     

    Refund Policy

    Subject to our review, you may return any of our Products within 365 days of purchase if the product develops a hardware malfunction. Only if you purchased the Products through the preorder campaign, you may request your return via our support center https://kanoa.desk.com within 14 calendar days after you received the Product, provided you comply with these Terms and any return instructions. You can return Products only in their original condition including any boxes, packaging, documentation and included accessories. Shipping costs shall be paid by you unless we otherwise send you a prepaid label. You are responsible for ensuring that the Product arrives at our facilities in its original unused condition. We will send you a full refund less any applicable shipping and handling charges via your original payment method within 10 business days after receiving the Product.

     

    Termination of License

    We may terminate your license to use the Service with or without cause at any time. Should you breach these Terms or fail to comply with any condition hereunder, your right to use the Service shall terminate immediately and without notice. You may also terminate this Agreement by simply discontinuing use of the Service.

     

    Warranty Disclaimer

    SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, KANOA EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KANOA SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, CURRENT, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, KANOA DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KANOA OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. KANOA DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE USER CONTENT AND THIRD-PARTY CONTENT, OR ANY OTHER CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. KANOA DOES NOT CONTROL OR VET USER CONTENT OR THIRD-PARTY CONTENT AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. KANOA IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES. KANOA EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IF YOU ARE DISSATISFIED OR HARMED BY KANOA OR ANYTHING RELATED TO KANOA, YOU MAY CANCEL YOUR KANOA ACCOUNT AND TERMINATE THIS AGREEMENT AS APPLICABLE, AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND KANOA’S SOLE AND EXCLUSIVE LIABILITY). 

     

    Indemnification

    You shall defend, indemnify, and hold harmless Kanoa, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that the User Content or your use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (b) relating to, or arising from, User Content, or (c) your breach of this Agreement.

     

    Limitation of Liability

    SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KANOA’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) THE PURCHASE PRICE PAID BY YOU FOR THE PRODUCTS HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) US$500. KANOA DOES NOT OFFER ANY WARRANTY OR REMEDIES FOR THE INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES.

     

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KANOA, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL KANOA BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

     

    THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF KANOA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF KANOA FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF KANOA, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF KANOA; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

     

    General

    Miscellaneous. Any dispute arising from this Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions. SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE IN AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN SAN FRANCISCO COUNTY, STATE OF CALIFORNIA AND THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL. Any cause of action you may have with respect to your use of the Service must be commenced within one (1) year after the claim or cause of action arises. If for any reason a court of competent jurisdiction finds any provision of this agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. A printed version of this agreement shall be admissible in judicial or administrative proceedings. No waiver by Kanoa of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Kanoa to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect. Upon termination, 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.

     

    The Services may be used as part of an exercise, fitness or athletic program. The Services are not a substitute for professional health care or advice, and is not intended to diagnose, treat, cure or prevent any disease. Consult your doctor before engaging in any exercise program that may be offered through the Services. In the event of a medical emergency, stop using the Service immediately and consult with a medical doctor. We are not responsible for any health problems that may result from using the Service as part of an exercise, fitness or athletic program. If you engage in such activities using the Service, you agree that you are doing so voluntarily and at your own risk.

     

    No Class Actions. All claims between the parties related to this Agreement will be litigated individually and the parties will not consolidate or seek class treatment for any claim, unless previously agreed to in writing by the parties.