Effective: July 21, 2023

 

PLEASE READ THESE CONSUMER TERMS AND CONDITIONS CAREFULLY. THESE CONSUMER TERMS AND CONDITIONS (“AGREEMENT,” “TERMS AND CONDITIONS,” or “TERMS”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND KYTE, AS DEFINED BELOW.

 

SECTION 12 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 12 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING OR PROPOSED CLASS ACTION LITIGATION.

 

IN ADDITION:

• SECTION 3 OF THIS AGREEMENT REQUIRES YOU TO CONSENT TO OUR PRIVACY POLICY.

• SECTION 7 OF THIS AGREEMENT CONTAINS PROVISIONS RELATING TO OUR USE OF CERTAIN USER CONTENT.

• SECTION 19 OF THIS AGREEMENT CONTAINS PROVISIONS WHICH LIMIT OUR LIABILITY TO YOU.

 

1. Acceptance of this Agreement

 

This Agreement governs your use of the Technology and Services (each as defined below) and is between you and Kyte. “Kyte,” “we,” “us,” and “our” mean Kyte Dynamics, Inc., a Delaware corporation, and its subsidiaries and affiliated companies, including, without limitation, the entities listed in the remainder of this paragraph. These Terms and Conditions constitute a legal agreement between you and Kyte and/or its subsidiaries and affiliated companies.

 

If you access any of our websites located at https://kyte.aero and https://kytedelivery.com, install or use the Kyte mobile application, install or use any other technology supplied by Kyte (collectively, the “Technology”), or access or use any information, function, feature, or service made available or enabled by Kyte (collectively, the “Services,” which includes the Technology), click or tap a button or take similar action to signify your affirmative acceptance of this Agreement, or complete the Kyte account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that: (a) you have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time or through the Technology; (b) you are of legal age in the jurisdiction in which you reside to form a binding contract with Kyte; and (c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account or named as the User during the Kyte account registration process and to bind such organization to the Agreement.

 

The specific Services available to you may vary based on the delivery or pickup address that you have selected. A certain function, feature, or Service (y) available to one User may not be available to all Users or at all times, and (z) may only be available in the latest version of the Kyte site(s) and/or application(s). The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective employees, agents, or representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services.

 

2. Modifications

 

Subject to Section 12(k) of this Agreement, Kyte reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Technology or Services at any time, effective upon posting an updated version of this Agreement at https://kyte.aero/terms or through the Technology. If we make any material changes to this Agreement, we will notify you by email at the email address that you have provided to us or by another means. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes. If you do not agree to these modifications, you should immediately cease using the Technology and Services.

 

3. Additional Terms and Policies

 

By using the Services, you agree to be bound by this Agreement and acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with Kyte’s Privacy Policy, which is incorporated in this Agreement by reference. You also agree to abide by any additional Kyte terms or policies for Users that are published on our site(s) or mobile application(s), whether or not such terms or policies are directly referenced or linked elsewhere in this Agreement. Certain features of our Services may be subject to additional terms and conditions, which, to the extent permitted by applicable law, are incorporated herein by reference.

 

4. Rules and Prohibitions

 

Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:

(a) You will only use or access the Services using means explicitly authorized by Kyte. If applicable, it is your responsibility to ensure you download the correct Technology for your device. We are not liable if you do not have a compatible device or if you have downloaded the wrong version of the Technology for your device. We reserve the right to terminate your use of the Technology and/or Services should you be using the Technology or Services with an incompatible or unauthorized device.

(b) You will not use or attempt to use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.

(c) You will not use or attempt to use the Services to cause nuisance, annoyance, or inconvenience.

(d) You will not copy or distribute, or attempt to copy or distribute, the Technology or any content displayed through the Services for republication in any format or media.

(e) You will not directly or indirectly create or compile, or attempt to create or compile, any content or collection, compilation, or other directory from any content displayed through the Services except for your personal, noncommercial use.

(f) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.

(g) You will keep secure and confidential your account password and any other login or identification credentials you use to access the Services.

(h) You will use the Technology and Services only for your own use and will not directly or indirectly resell, license, or transfer the Technology, Services, or content displayed by the Services to a third party.

(i) You will not use or attempt to use the Services in any way that could damage, disable, overburden, or impair any Kyte server or the networks connected to any Kyte server.

(m) You will not attempt to gain unauthorized access to any part of the Technology or the Services and/or to any account, resource, computer system, and/or network connected to any Kyte server.

(n) You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures Kyte may use to prevent or restrict access to the Services or use of the Services or the content therein, and you will not attempt any of the foregoing.

(o) You will not deep-link to our websites or access our websites manually or with any robot, spider, web crawler, extraction software, automated process, and/or device to scrape, copy, index, frame, or monitor any portion of our websites or any content on our websites, and you will not attempt any of the foregoing.

(p) You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services, and you will not attempt any of the foregoing.

(q) You will not engage in conduct that harms, attempts to harm, or threatens the safety of other Users, Contractors, Kyte, Kyte employees, or our community in any way whatsoever, and you will take reasonable steps to prevent the foregoing.

(r) You will not engage in threatening, harassing, racist, or sexist behavior or any other behavior that Kyte deems inappropriate when using the Services.

(s) You will report any errors, bugs, unauthorized access methodologies, or any breach of our intellectual property rights that you uncover in your use of the Services.

(t) You will not abuse or attempt to abuse our promotional or credit code system, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time Users.

(u) Your participation in using the Services is for your sole, personal, or internal business use.

(v) You will not falsely or fraudulently claim that your order or items from your order were missing, incorrect, of poor quality, defective, or never delivered.

 

In the event that we believe or determine that you have breached any of the aforementioned, we reserve the right to suspend and/or permanently deactivate your account at our sole discretion.

 

5. PRODUCT DISCLAIMER OF WARRANTIES

 

KYTE AND ITS SUPPLIERS AND VENDORS DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS OR MERCHANDISE AVAILABLE ON OR ACCESSIBLE THROUGH THE SERVICE, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ALL SUCH PRODUCTS OR MERCHANDISE ARE MADE AVAILABLE "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.

 

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KYTE MAKES NO REPRESENTATION OR WARRANTY THAT THE QUALITY OF ANY PRODUCTS OR MERCHANDISE PURCHASED OR OBTAINED THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

 

6. User Account

 

You may be required to register for an account to use parts of the Services. You must provide accufrate, current, and complete information during the registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete. You are the sole authorized User of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your User account, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify Kyte immediately. Kyte will not be liable, and you may be liable, for losses, damages, liability, expenses, and fees incurred by Kyte or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or if Kyte has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Kyte has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). We may enable or require you to use a single pair of login credentials to use Kyte services. You agree not to create an account or use the Services if you have been previously removed by Kyte, or if you have been previously banned from use of the Services.

 

7. User Content

 

(a) User Content. Kyte may provide you with interactive opportunities through the Services, including, by way of example, the ability to post or otherwise provide to Kyte Ratings and Reviews (as defined below) or Feedback (as defined below) (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post, and/or otherwise transmit through the Services. You further represent and warrant that any User Content submitted, posted, and/or otherwise transmitted through the Services by you or someone on your behalf or through your User account does not (i) violate any third-party right, including any copyright, trademark, patent, trade secret, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) contain material that is false, intentionally misleading, deceptive, defamatory, offensive, abusive, or pornographic, including material that racially or religiously vilifies, incites violence or hatred, or is likely to insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation, or any physical or mental disability; (iii) contain sexually explicit or violent content or photos, images, or videos of weapons, illegal drugs, or hate symbols; (iv) contain any material that is unlawful or relates to unlawful conduct (including phishing and spoofing); (v) create a privacy or security risk to any person, including by soliciting personal information from any person, or contain any confidential, sensitive, private, or personally identifiable information; (vi) solicit money from any person; (vii) contain financial, legal, medical, or other professional advice; (viii) harm, abuse, harass, stalk, threaten, or otherwise offend; (ix) reflect negatively on Kyte, including Kyte’s goodwill, name, and reputation; (x) tamper with, hinder the operation of, or make unauthorized modifications to our websites or Technology; (xi) otherwise result in civil or criminal liability for you, Kyte, or any third party; (xii) violate any law or regulation; or (xiii) violate this Agreement or any community or content guidelines that Kyte may publish from time to time. You hereby grant Kyte (including Kyte’s service providers) a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use the User Content in connection with Kyte’s business and in all forms now known or hereafter invented (collectively, “Uses”), without notification to and/or approval by you. You further grant Kyte a license to use your username, first name and last initial, profile photo (if available), and/or other User profile information, including, without limitation, your ratings history, to attribute User Content to you in connection with such Uses, without notification to or approval by you. You agree that this license includes the right for other Users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the license granted to Kyte herein shall survive termination of the Services or your account. Kyte reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or any community or content guidelines we may publish or that we consider to be objectionable for any reason. You agree that Kyte may monitor and/or delete your User Content (but does not assume the obligation to do so) or may decide to not publish, display, or otherwise make available your User Content for any reason at Kyte’s sole discretion. Kyte may also access, read, preserve, and disclose any information as Kyte reasonably believes is necessary to satisfy any applicable law, regulation, legal process, or governmental request; enforce this Agreement, including investigation of potential violations hereof; detect, prevent, or otherwise address fraud, security, or technical issues; respond to User or Contractor support requests; or protect the rights, property, or safety of Kyte, our Users, and the public.

 

(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to Kyte through its suggestion, feedback, wiki, forum, or similar pages (“Feedback,” which is considered User Content) is at your own risk and that Kyte has no obligations (including, without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Kyte a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use such Feedback.

 

(c) Ratings and Reviews. To the extent that you rate or post reviews of products, which may include but is not limited to text, photos, images, audio, or videos that you provide (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by Kyte and do not represent the views of Kyte. Kyte shall have no liability for Ratings and Reviews or for any claims of economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Services, you acknowledge and agree that: (i) you will base any Rating or Review on first-hand experience with the product; (ii) you will not provide a Rating or Review for any product for which you have an ownership interest, employment relationship, or other affiliation or for any competitor of such a product; (iii) you will not submit a Rating or Review in exchange for payment, free food items, or other benefits from another business; (iv) any Rating or Review you submit will comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising; (v) your Rating or Review will comply with the terms of this Agreement; (vi) we may decide to not publish, display, or otherwise make available your Rating or Review for any reason in our sole discretion; and (vii) any Rating or Review you submit will comply with the aforementioned terms of this Agreement. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews or otherwise violates this Agreement, we may remove such Rating or Review without notice and take any additional action, in Kyte’s sole discretion, as we deem necessary or appropriate.

 

8. Communications with Kyte

 

By creating a Kyte account or using the Technology or Services, you agree to accept and receive communications from Kyte, or other third parties providing services to you or Kyte, including via email, text message, direct message, chat, calls, and push notifications to the cellular telephone number you provided to Kyte. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver pre-recorded messages sent by or on behalf of Kyte, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. For certain types of communications (for example, marketing, research, or product updates), you may be able to adjust the emails, text messages, push notifications, or other communications you receive from us in the Kyte website or mobile application, or through mechanisms or functionality available in the communication. For purposes of clarity, any text message you may receive from us regarding an order is a transactional text message, not a promotional text message.

 

9. Electronic Records

 

By creating a Kyte account, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing Kyte at privacy@kyte.aero with “Revoke Electronic Record Consent” in the subject line.

 

To view and retain a copy of this Agreement, you will need (a) a device (such as a computer or mobile phone) with a web browser and Internet access, and (b) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email Kyte at privacy@kyte.aero with contact information and your mailing address.

 

You agree that all terms and conditions, agreements, notices, disclosures, and other communications that Kyte provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This paragraph does not affect your statutory rights.

 

10. Intellectual Property Ownership

 

Kyte alone (and its licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to the Technology and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Technology or the Services, or any intellectual property rights owned by Kyte. Kyte names, Kyte logos, and the product names associated with the Technology and Services are trademarks of Kyte or third parties, and no right or license is granted to use them. You agree that you will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Technology or the Services.

 

11. Payment Terms

 

(a) Prices & Charges. You understand that: (i) the prices for items displayed through the Services may differ from the prices offered or published by other businesses or third-party websites and that such prices may not be the lowest prices at which the items are sold and may change at any time without notice; (ii) Kyte has no obligation to itemize its costs, profits, or margins when publishing such prices; and (iii) pricing may change at any time, in the discretion of Kyte. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in-store totals. In those situations, Kyte reserves the right to temporarily authorize or place a hold on your payment method for an amount that may be greater than the amount shown at checkout and to charge your payment method the final price after checkout. You are liable for all transaction taxes (other than taxes based on Kyte’s income), including sales tax, use tax, goods and services tax, and other transaction taxes if applicable, on the Services provided under this Agreement. If transaction taxes, including sales tax, use tax, goods and services tax, and other transaction taxes, are applicable, Kyte reserves the right to charge you additional amounts on account of such taxes. In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, Kyte reserves the right to make an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by Kyte and/or its payments processor, using the preferred payment method designated in your account. If your payment details change, you or your card provider may provide us with updated payment details. We may use these new details or details from other payment methods on file in order to help prevent any interruption to your use of the Services. This includes our right to charge any payment method on file if your initial form of preferred payment fails. It is your responsibility to keep your billing information up to date.

 

(b) Strikethrough Pricing. Kyte may use strikethrough pricing for certain items (for example, when presenting a discount or promotional price for items). Kyte does not represent that the strikethrough price was the regular or former price of items for any particular period of time and the time period may vary widely depending on the items. Kyte may also rely on third parties to provide information about the regular or former price of items offered by those third parties, and Kyte’s strikethrough price therefore may represent the price that Kyte or a third party offered the item for sale for some period of time. The strikethrough price may also be an introductory price that was offered for a short period of time.

 

(c) Refunds

(i) Charges paid by you for completed and delivered orders are final and non-refundable. Kyte has no obligation to provide refunds or credits but may grant them gratuitously at Kyte’s sole discretion in each case. You may be required to provide identification information and/or a signature upon pick up and/or receipt of certain orders, as communicated at the time you place your order; if you fail to provide the required identification information or signature for such an order, you agree and acknowledge that we will not honor any claim that your order was not delivered and you may be subject to a non-refundable restocking fee. In order to make a claim for a refund or credit, please follow the procedures set out in the Technology or Services.

 

(d) Promotional Offers and Credits. Kyte, at its sole discretion, may make promotional offers with different features and different pricing to any User. These promotional offers are subject to the terms of this Agreement and may be valid only for certain Users as indicated in the offer. You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public, unless expressly permitted by Kyte; (iii) are subject to the specific terms that Kyte establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date indicated in the offer. Kyte reserves the right to withhold or deduct credits or benefits obtained through a promotion, or to charge additional amounts that would have applied to the transaction had the promotion not applied, in the event that Kyte determines or believes on reasonable grounds that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. Kyte reserves the right to modify or cancel an offer at any time. Kyte may also offer gratuitous credits, which can be used for the Services. Any credit issued by Kyte under this Section 11(d) is valid for 6 months from the date of issue except to the extent prohibited under applicable law and may not be redeemed for cash or cash equivalent; however, your credits may expire earlier if your account is deactivated. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and cannot be used towards any order.

 

(e) Fees for Services. Kyte may change the fees that Kyte charges you as we deem necessary or appropriate for our business, including but not limited to Delivery Fees, Service Fees, Small Order Fees, and Surge Fees. Kyte may offer different pricing to customers based on a variety of factors, including but not limited to geographic areas or usage. Kyte may also charge you additional fees as required by law. Kyte may charge you a Service Fee for the convenience of ordering through the Kyte platform. None of the Service Fee, Delivery Fee, Small Order Fee, Surge Fee, or any other fee charged to you by Kyte is for any right to access, install, or use any Technology.

 

(f) Referral Program. Under Kyte’s referral program (“Referral Program”), Kyte offers its registered Users in good standing the opportunity to earn gratuitous Kyte credits as promotional rewards by inviting their eligible friends to register as new Kyte Users and place their initial order through the Services by using a unique referral ID link (“Personal Link”). For each eligible referral generated through a User’s Personal Link, the User may receive a gratuitous credit as specified on Kyte’s Referral Program page. You agree that we may change the terms and conditions of the Referral Program or terminate the Referral Program at any time. If you do not agree to these changes, you should immediately cease participating in the Referral Program. Any credit issued by Kyte under this Section 11(f) is valid for 6 months from the date of issue except to the extent prohibited under applicable law and may not be redeemed for cash or cash equivalent; however, your credits may expire earlier if your account is deactivated. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and cannot be used towards any order. Credits issued to a User’s Kyte account may only be redeemed through that respective brand’s Services.

 

12. Arbitration Agreement

 

THIS SECTION 12 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”

 

Please read this Section 12 carefully. It requires that any and all claims between you and Kyte be resolved by binding arbitration or in small claims court and, to the extent permitted by applicable law, prevents you from pursuing a class action or similar proceeding in any forum. Arbitration is required if your country of residence enforces arbitration agreements. (a) Scope of Arbitration Agreement. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before, on, or after the effective date of this Agreement. You agree that any dispute or claim arising out of or relating in any way to the subject matter of the Agreement, to your access or use of the Services as a User of the Services, to any advertising or marketing communications regarding Kyte or the Services, to any products or services sold or distributed through the Services that you received as a User of our Services, or to any aspect of your relationship or transactions with Kyte as a User of our Services (this includes, without limitation, any contract claim, tort claim, statutory claim, or claim for unfair competition), will be resolved by binding arbitration, rather than in court, except as otherwise required by law or as otherwise provided in this Arbitration Agreement. In addition, to the extent permitted by applicable law, either you or Kyte may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Either you or Kyte may also, to the extent permitted by applicable law, apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual. You may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.

 

CASES MAY BE FILED IN THE FUTURE THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH KYTE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST KYTE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

 

(b) Informal Resolution. You and Kyte agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. You and Kyte therefore agree that, before either you or Kyte demands or attempts to commence arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. For sake of clarification only, the informal dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference, unless mutually agreed to by the parties. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Kyte that you intend to initiate an informal dispute resolution conference, email admin@kyte.aero, providing your name, telephone number associated with your Kyte account (if any), the email address associated with your Kyte account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

 

(c) Arbitration Rules and Forum

This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certify completion of the informal dispute resolution conference pursuant to Section 12(b). If this notice is being sent to Kyte, it must be sent by email to the counsel who represented Kyte in the informal dispute resolution process. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Once the notice certifying completion of the informal dispute resolution conference has been served, the party seeking to arbitrate must then file their arbitration demands with JAMS. The demand must include (A) the name, telephone number, mailing address, and email address of the party seeking arbitration; (B) a statement of the legal claims being asserted and the factual bases of those claims; (C) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (D) the signature of the party seeking arbitration. Disputes shall be subject to JAMS most current version of its Streamlined Arbitration Rules & Procedures, available as of June 1, 2021 at https://www.jamsadr.com/rules-streamlined-arbitration. The fees that shall apply to arbitrations administered by JAMS are set forth on its website, available as of July 21, 2023 at https://www.jamsadr.com/arbitration-fees. Any finding that a claim or counterclaim violates the standards set forth in Federal Rule of Civil Procedure 11 shall entitle the other party to recover their attorneys’ fees, costs, and expenses associated with defending against the claim or counterclaim. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68 or a state or local equivalent, if applicable, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made.

If JAMS is not available to arbitrate, the parties will mutually select an alternative arbitral forum. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute. You may choose to have the arbitration conducted by telephone, video conference, or in person in the county where you live or at another mutually agreed location. The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by applicable law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Agreement, either party may seek to enjoin the arbitration proceeding in court, and the arbitration shall automatically be stayed pending the outcome of that proceeding.

If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. JAMS shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available as of February 3, 2023 at https://www.jamsadr.com/appeal/.

 

(d) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND KYTE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Kyte are instead electing to have all disputes resolved by arbitration, except as specified in Section 12(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

 

(e) Waiver of Class, Consolidated, and Representative Actions; Waiver of Public Injunctive Relief. EXCEPT AS EXPRESSLY AGREED TO IN SECTION 12(F) OF THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND KYTE AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS EXCEPT AS SET FORTH IN SECTION 12(F). CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN SECTION 12(F). In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) a civil court of competent jurisdiction finds all or part of the Waiver of Class, Consolidated, and Representative Actions is unenforceable, the class, collective, or representative action must be litigated in a civil court of competent jurisdiction, but the portion of the Waiver of Class, Consolidated, and Representative Actions that is enforceable shall be enforced in arbitration. The portion of such dispute proceeding in court shall be stayed pending the conclusion of the arbitration. Notwithstanding any other provision in this Agreement, any claim that all or part of the waivers set forth in Section 12(e) is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. This provision does not prevent you or Kyte from settling claims on a class, collective, or representative basis.

 

(f) Batch Arbitrations. To the extent permitted by applicable law, to increase efficiency of resolution, in the event 100 or more similar arbitration demands against Kyte, presented by or with the assistance or involvement of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period: (A) the parties shall cooperate to group the arbitration demands into randomized batches of no more than 100 demands per batch (plus, to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); (B) claimants’ counsel shall organize and present the batched demands to the arbitration provider in a format as directed by the arbitration provider; (C) the arbitration provider shall provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch; and (D) the arbitration provider shall send one set of disclosures per batch and will set up one Arbitration Management Conference per batch. You agree to cooperate in good faith with Kyte and the arbitration provider to implement such a batch approach to resolution and fees. Disagreements over the applicability of this batch arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section. Notwithstanding any provision in the Agreement to the contrary, batch arbitrations shall take place in Los Angeles, California or, if the parties prefer, by video conference. The parties may also agree to conducting arbitration based on written submissions alone.

 

(i) No Effect on Independent Contractor Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND KYTE RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A CONTRACTOR. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE A CONTRACTOR, OPTING OUT OF THE ARBITRATION AGREEMENT SET FORTH IN SECTION 12 HAS NO EFFECT ON YOUR AGREEMENT TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT CONTRACTOR AGREEMENT WITH KYTE.

 

(j) Survival. This Arbitration Agreement will survive any termination of your relationship with Kyte.

 

(k) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Kyte makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Kyte.

 

(l) Entire Agreement; Severability. This Arbitration Agreement is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Agreement. In the event any portion of this Arbitration Agreement is deemed unenforceable, the remainder of this Arbitration Agreement will be enforceable.

 

13. Third-Party Interactions

 

(a) Third-Party Websites, Applications, and Advertisements. The Services may contain links to third-party websites, (“Third-Party Websites”), applications (“Third-Party Applications”), and advertisements (“Third-Party Advertisements”) (collectively, “Third-Party Websites & Advertisements”). When you click or tap on a link to a Third-Party Website, Third-Party Application, or Third-Party Advertisement, Kyte will not warn you that you have left Kyte’s website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of Kyte. Kyte is not responsible for any Third-Party Websites & Advertisements. Kyte provides links to these Third-Party Websites & Advertisements only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

 

(b) App Stores. You acknowledge and agree that the availability of the Technology and the Services is dependent on the third party from which you received the application license, such as the Apple or Android app store (each, an “App Store”). You acknowledge and agree that this Agreement is between you and Kyte and not with the App Store. Kyte, not the App Store, is solely responsible for the Technology and the Services, including the mobile application(s), the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (for example, product liability, legal compliance, or intellectual property infringement). In order to use the Technology and the Services, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Technology or the Services. You agree to comply with, and your license to use the Technology and the Services is conditioned upon your compliance with, all applicable third-party terms or agreements (for example, the App Store’s terms and policies) when using the Technology or the Services. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.

 

14. Social Media Guidelines

 

Kyte maintains certain social media pages for the benefit of the Kyte community. By posting, commenting, or otherwise interacting with these pages, you agree to abide by our community guidelines posted on our site(s) and app(s).

 

15. Transactions Involving Alcohol and Other Age-Restricted Products

 

You may have the option to request delivery of alcohol products. You agree that you will only order alcohol products if you, the intended recipient, and anyone who may consume the alcohol products are of legal age to purchase and consume alcohol products in the relevant jurisdiction. You also agree that, upon delivery or pickup of alcohol products, the recipient of any alcohol products will provide valid government-issued identification proving the requisite legal age and that the recipient will not be intoxicated when receiving such products. If you order alcohol products, you understand and acknowledge that the order will only be delivered if Kyte accepts your order. The person delivering alcohol may be legally obligated to refuse delivery pursuant to applicable federal, state, provincial, or local laws, rules, or regulations, including if the recipient is not of legal age, is visibly intoxicated, or is not physically present to accept the delivery, and will be prompted to refuse delivery if the recipient cannot provide a valid government-issued identification proving requisite legal age, is visibly intoxicated, or is not physically present to accept the delivery. If the delivery of alcohol products cannot be completed for one or more of these reasons, you agree and acknowledge that your purchase is non-refundable and you or the intended recipient may not receive any part of the applicable order, including any non-alcohol items that you may have purchased with your alcohol products, and you may also be subject to a non-refundable restocking fee.

 

You may also have the option to request delivery or pickup of other age-restricted items, such as certain over-the-counter medication or other products subject to applicable federal, state, provincial, or local laws, rules, or regulations or Kyte policies requiring age verification. You agree that you will only order age-restricted items if you, the intended recipient, or anyone who may consume such products are of legal age to purchase the items. You also agree that, upon delivery of age-restricted items, the recipient will provide valid government-issued identification proving the requisite legal age for such age-restricted items. The person delivering age-restricted items will refuse delivery pursuant to applicable federal, state, provincial, or local laws, rules, or regulations, including if the recipient cannot provide a valid government-issued identification proving requisite legal age or is not physically present to accept the delivery. If the delivery of age-restricted items cannot be completed for one or more of these reasons, you agree and acknowledge that your purchase is non-refundable and you may not receive any part of your order, including items that are not age-restricted that you may have purchased with your age-restricted items, and you may also be subject to a non-refundable restocking fee.

 

16. Indemnification

 

To the extent permitted by law, you agree to indemnify and hold harmless Kyte and its officers, directors, employees, agents, and affiliates (each, an “Indemnified Party”) from and against any losses, claims, actions, costs, damages, penalties, fines, and expenses, including without limitation, legal and/or attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to, or resulting from (a) your User Content; (b) your misuse of the Technology or Services; (c) your breach of this Agreement or any representation, warranty, condition, or covenant in this Agreement; or (d) your violation of any applicable laws, rules, or regulations through or related to the use of the Technology or Services. In the event of any claim, allegation, suit, or proceeding alleging any matter potentially covered by the agreements in this Section 16, you agree to pay for the defense of the Indemnified Party, including reasonable costs and legal and/or attorneys’ fees incurred by the Indemnified Party. Kyte reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Kyte in asserting any available defenses. This Section 16 does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with the Technology or Services. You agree that the provisions of this Section 16 will survive any termination of your account, this Agreement, or your access to the Technology and/or Services.

 

17. Disclaimer of Warranties

 

UNITED STATES FEDERAL LAW AND SOME STATES, PROVINCES, AND OTHER JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE EXCLUSIONS IN THIS SECTION 17 MAY NOT APPLY TO YOU. SECTION 17 APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE TECHNOLOGY AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE TECHNOLOGY AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. KYTE WILL USE REASONABLE ENDEAVORS TO ENSURE THE TECHNOLOGY AND SERVICES ARE AVAILABLE AS MUCH OF THE TIME AS POSSIBLE, BUT DOES NOT GUARANTEE IT WILL BE AVAILABLE ALL OF THE TIME. THE TECHNOLOGY AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT GUARANTEES, WARRANTIES, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, GUARANTEES, WARRANTIES, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, AND NON-INFRINGEMENT. KYTE MAKES NO WARRANTIES, CONDITIONS, OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, ORTIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE TECHNOLOGY OR SERVICES, OR THE SERVICES, TECHNOLOGY, TEXT, GRAPHICS, OR LINKS.

 

KYTE DOES NOT WARRANT THAT THE TECHNOLOGY OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE TECHNOLOGY OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE TECHNOLOGY OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, KYTE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

 

18. Internet Delays

 

The Technology and Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as otherwise required by applicable law and subject to the Non-Excludable Provisions, Kyte is not responsible for any delays, delivery failures, damage, loss, injury, or other economic damage resulting from such problems.

 

19. Breach and Limitation of Liability

 

You understand and agree that a key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient and to provide the Technology and Services at low cost. You understand and agree to the limitations on remedies and liabilities set forth in this Section 19 to keep the Technology and Services simple and efficient, and costs low, for all Users.

 

(i) Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KYTE’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO KYTE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

 

(ii) Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KYTE SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE, AND ECONOMIC ADVANTAGE).

 

20. Exclusive Venue

 

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Kyte agree that all claims and disputes arising out of or relating in any way to the subject matter of the Agreement, to your access or use of the Services as a User of the Services, to any advertising or marketing communications regarding Kyte or the Services, to any products or services sold or distributed through the Services that you received as a User of our Services, or to any aspect of your relationship or transactions with Kyte as a User of our Services (this includes, without limitation, any contract claim, tort claim, statutory claim, or claim for unfair competition), will be litigated exclusively in the state or federal courts located in Los Angeles County if you are a California citizen or resident, and in the United States District Court for the District in which you reside if you are not a California citizen or resident.

 

21. Termination

 

If you violate this Agreement, Kyte may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists.  In addition, at its sole discretion, Kyte may modify or discontinue the Technology or Services, or may modify, suspend, or terminate your access to the Technology or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Technology or the Services, Kyte reserves the right to take appropriate legal action, including without limitation, pursuing civil, criminal, or injunctive redress. Even after your right to use the Technology or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.

 

22. Procedure for Making Claims of Copyright Infringement

 

It is Kyte’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Kyte by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the specific location on the Services of the material that you claim is infringing, including enough information to allow Kyte to locate the material; (d) your address, telephone number, and email address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

 

This notice of a copyright infringement claim should be sent to Kyte’s Copyright Agent at the address set forth below:

 

• E-mail: copyright@kyte.aero

• Mail: Kyte Dynamics, Inc. 382 N. Lemon Ave. #1033, Walnut, CA 91789

23. General

 

(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Kyte, or any third-party provider as a result of this Agreement or use of the Technology or Services.

 

(b) Choice of Law. Without giving effect to any principles that provide for the application of the law of any other jurisdiction, this Agreement is governed by the laws of the State of Delaware consistent with the Federal Arbitration Act.

 

(c) Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid or unenforceable under applicable law, the invalidity or unenforceability of such provision shall not affect the validity or enforceability of the remaining provisions of this Agreement, which shall remain in full force and effect.

 

(d) Consumer Complaints. You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210 in accordance with California Civil Code § 1789.3.

 

(e) Accessing and Downloading the Application from the Apple App Store. The following applies to any Technology accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):

 

(i) You acknowledge and agree that (A) the Agreement is concluded between you and Kyte only, and not Apple; and (B) Kyte, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

 

(ii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

 

(iii) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Kyte and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty or condition will be the sole responsibility of Kyte.

 

(iv) You and Kyte acknowledge that, as between Kyte and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (A) product liability claims; (B) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation.

 

(v) You and Kyte acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Kyte and Apple, Kyte, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement.

 

(vi) You and Kyte acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

 

(vii) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

 

(f) Notice. Where Kyte requires that you provide an email address, you are responsible for providing Kyte with your most current email address. In the event that the last email address you provided to Kyte is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Kyte’s dispatch of the email containing such notice will nonetheless constitute effective notice. You agree that all agreements, notices, disclosures, payment or renewal notifications, and other communications that Kyte provides to you electronically (such as through email or posting through the Services, including in your Kyte account) satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form.

 

(g) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Kyte without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.

 

(h) Currency. Unless otherwise indicated, all prices and other amounts displayed through the Services are in the currency of the jurisdiction where delivery or pickup occurs.

 

(i) Use Only Where Legally Allowed. You shall not access or use any portion of the

Services if you are not legally allowed to do so where you are located.

 

(j) Subcontracting. Kyte may subcontract any of its obligations under this Agreement without your prior written consent.

 

(k) Variation of Our Websites or the Technology. We may from time to time vary, modify, or discontinue, temporarily or permanently, any or all of our websites or the Technology.

 

(l) Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and Kyte relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.

 

24. Contact Information

 

Kyte welcomes your questions or comments regarding this Agreement. Please find our contact information below:

 

https://kyte.aero/contact