TERMS OF SERVICE
Date of Last Revision: November 7, 2019
Welcome to Taika!
Taika Inc. (“Taika,” “we,” “us,” “our”) provides its e-commerce platform and related products and services (described below) to you through its website located at taika.co (the “Site”) and through its mobile applications and related services (collectively, such platforms, products and services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST TAIKA ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Access and Use of the Service
Services Description: The Service is designed to facilitate the commercial sale and delivery of premium coffee products.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Taika of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Taika will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: Taika reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) or any offered products with or without notice. You agree that Taika will not be liable to you or to any third party for any such modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Taika may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Taika’s servers on your behalf. You agree that Taika has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Taika reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Taika reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service may include certain services that are available via a mobile device, including (i) the ability to communicate with Taika, including sending or uploading content, via email, SMS, MMS, text message or other electronic means; and (ii) the ability to access the Service and the Site from a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Taika and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Taika account information to ensure that your messages are not sent to the person that acquires your old number.
Conditions of Use
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”), communicate by electronic means or otherwise use via the Service, including the Mobile Services. The following are non-exclusive examples of the kind of content and/or use that is illegal or prohibited by Taika. Taika reserves the right to investigate and take appropriate legal action against anyone who, in Taika’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Taika, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Taika or its users to any harm or liability of any type;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
violate any applicable local, state, national or international law, or any regulations having the force of law;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
solicit personal information from anyone under the age of 18;
harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Taika, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Taika from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Taika, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Taika.
The Taika name and logos are trademarks and service marks of Taika (collectively the “Taika Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Taika. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Taika Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Taika Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Taika be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Taika does not pre-screen content, but that Taika and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Taika and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Taika, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with Taika or other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By communicating to Taika or uploading any User Content you hereby grant and will grant Taika and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that Taika may preserve content, and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Taika, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: Taika respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Taika of your infringement claim in accordance with the procedure set forth below.
Taika will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Taika’s copyright agent (“Copyright Agent”) at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact the Copyright Agent by mail at:
340 S Lemon Ave, #4150, Walnut, CA 91789
To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Taika will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Taika has adopted a policy of terminating, in appropriate circumstances and at Taika's sole discretion, users who are deemed to be repeat infringers. Taika may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Taika has no control over such sites and resources and Taika is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Taika will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Taika is not liable for any loss or claim that you may have against any such third party.
By using the Services, you consent to receive information from us via SMS and/or MMS messages sent through an automated telephone dialing system (“Text Service”), even if you have opted in to the National Do Not Call List, any state Do Not Call List, or the internal Do Not Call List of any company. You may be required to respond to an initial message as instructed to complete your registration and confirm enrollment in the Text Service. You do not have to participate in the Text Service in order to use the Services. In the event you no longer want to participate in the Text Service, you agree to notify us directly. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Taika account information to ensure that your messages are not sent to the person that acquires your old number.
There is no additional charge for the Text Service, but your mobile carrier’s standard message and data rates apply to any messages you send or receive through the Text Service, including confirmations and subsequent texts. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. We are not liable for any delays in the receipt of, or any failures to receive, any SMS or MMS messages, as delivery is subject to effective transmission by your mobile carrier and compatibility of your mobile device. Please contact your mobile carrier if you have any questions regarding these issues or your mobile data and messaging plan.
As described in the Text Service enrollment and welcome messages, including messages sent to a short code associated with the Text Service or by reply to any message you receive from us, you may text “STOP” to cancel or “HELP” for customer support information. If you choose to cancel your Text Service, you agree to receive a final text message from the Text Service confirming your cancellation.
You can also invite others to use the Services through the Text Service by providing the numbers of those you want to invite or by selecting the individuals you want to invite from your contacts list (if you have uploaded one). By asking us to invite others to use the Services, you represent to us that those you invite consent to receive the automated invitation messages and that you are authorized to convey that consent to us.
Terms of Sale
General: These terms of sale (“Terms of Sale”) are the terms which govern the purchase of the products by you from Taika via Taika’s Site and Service (“Products”). By placing an order you are offering to purchase the relevant Product on and subject to these Terms of Sale. When you place an order, you will receive an acknowledgement e-mail confirming receipt of your order; this email will only be an acknowledgement and will not constitute acceptance of your order. Your order will only be deemed accepted when Taika sends you confirmation by e-mail that the Products which you ordered have been dispatched to you (and such acceptance only applies to those Products listed in the Taika confirmation e-mail). All Products ordered by you must only be purchased for your personal and non-commercial purposes, and not for any other purpose (such as commercial use).
Delivery: The Products will be delivered within a reasonable time after the receipt of your order, subject to availability of the ordered Products and these Terms of Sale. Taika will deliver the Products to the address as indicated by you during the ordering process or, if no address is indicated while placing the order, the address indicated on your account (the “Delivery Address”) using Taika’s standard methods for packaging and shipping such Products. Taika may, in its sole discretion ship your Products to you, depending on availability of the Products. The quantity of the Products as recorded by Taika on dispatch is conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary. Taika is not responsible for any non-delivery of Products unless you give written notice to Taika of the non-delivery within two weeks of the date when the Products would in the ordinary course of events have been received.
Cancelling an Order and Money Back Guarantee:
If you are not satisfied with your Product, you may notify us within 30 days of the original purchase date and we will refund 100% of the price of the Product via the original payment method or such other method agreed between the parties or provide you a replacement Product.
Taika may reject any order or cancel any purchase of Products at any time in the following cases, subject to any applicable refund: (i) the Products are not available/not in stock; (ii) the data you provide to Taika in connection with your purchase is incorrect or cannot be checked; (iii) your order is marked as suspicious or otherwise suggestive of fraud or illegality by Taika’s security systems; (iv) Taikathere has been an error in the indicated price of the Products; or (v) Taika cannot deliver the Products to the address you have provided.
Title and Risk of Loss: Title and risk of loss passes to you upon delivery of the Products at the Delivery Address. This means you will be responsible for any subsequent damage, loss or destruction to the Products delivered to you.
Information About Products: Taika tries to make sure all descriptions of the Products and listed prices are accurate and correct. However, mistakes do happen and Taika will try to resolve any errors in information as soon as reasonably possible, and, if Taika thinks that such an error has affected your order, Taika will make reasonable efforts to notify you via the contact information provided by you and give you the option of reconfirming your order at the correct price or description (as applicable) or cancelling it. If Taika is unable to contact you, Taika will treat the order as cancelled. If you cancel and you have already paid for the Products, you will receive a refund. You acknowledge and agree that (i) the colors of Products as shown on the Site will depend on many factors, including your display settings and the device you are using to view Taika’s Site; (ii) the actual sizes and shapes of the goods may differ from how they appear on your screen; (iii) pictures and images on the Site are for illustration purposes only; and (iv) all weights and size dimensions are approximate. Taika reserves the right to adjust prices, Products and special offers at our discretion.
Price and Payment Terms: In order to purchase products through the Service, you will be required to provide Taika information regarding your credit card or other payment instrument. You represent and warrant to Taika that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to purchase the Products from Taika at the prices specified on Taika’s Site on the date you place your relevant order, including any shipping prices. Unless otherwise specified by Taika, the published Prices applicable to the Products are exclusive of shipping prices, which will be separately specified during your checkout process. All published prices applicable to the Products are also exclusive of all sales, taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by you. You agree to pay Taika all amounts due in accordance with this Terms of Service. Taika may offer discount or promo codes from time to time; such codes may only be applied to purchases made through the account in respect of which the discount code was offered and registered. Only one code can be used per order and use of such codes are subject to any other terms and conditions specified by Taika when those codes are made available to you. A promotion code cannot be used after an order has been placed. If you dispute any charges you must let Taika know within three (3) days after the date that Taika charges you. After receiving your order Taika carries out a standard pre-authorization check on your payment card to ensure there are sufficient funds to fulfill the transaction. Products will not be dispatched until this pre-authorization check has been completed. Your card will be debited once the order has been accepted. If you have registered for a subscription plan, you hereby authorize Company to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Taika know within thirty (30) days after the date that Taika charges you. We reserve the right to change Taika’s prices. If Taika does change prices, Taika will provide notice of the change on the Site. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on Taika’s net income.
Indemnity and Release
You agree to release, indemnify and hold Taika and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TAIKA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
TAIKA MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TAIKA WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TAIKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL TAIKA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID TAIKA FOR THE PRODUCT GIVING RISE TO THE CLAIM, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Taika, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Taika are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND TAIKA AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND TAIKA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution
Taika is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Taika should be sent to firstname.lastname@example.org (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Taika and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Taika may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Taika or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Taika is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Taika and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Taika agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by 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 award is based.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Taika will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Taika will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Taika will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Without limiting the severability provision in the General section of this Terms of Service, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, Taika agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Taika written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Taika, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Taika believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Taika may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Taika may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Taika will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Taika will have no liability or responsibility with respect thereto. Taika reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and Taika and govern your use of the Service, superseding any prior agreements between you and Taika with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Taika agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of Taika to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Taika, but Taika may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Taika, Inc., 340 S Lemon Ave #4150, Walnut, CA 91789 or by telephone at 415-212-7711.
Questions? Concerns? Suggestions?
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.