Effective Date: June 23, 2020
1.1 Agreement to These Terms
The Site and the Service are offered and available to users who are at least the age of legal majority in the jurisdiction from which they use the Service. In the United States, the age of majority is 18. If you are under the age of majority in your jurisdiction, you may not use the Site or the Service. By using the Site or the Service, you represent and warrant that you are of legal age to form a binding contract and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Site or the Service. These Terms continue to apply to any future updates, additions to, or releases of new features of, the Site and the Service, unless Kaizen Platform expressly states otherwise in writing.
Certain capitalized words and phrases used in these Terms have the meanings set forth below:
"Adopted Creative" means a Creative submitted by an Optimizer through the Service and adopted by the applicable Client pursuant to Section 6 of these Terms. Adopted Creatives may be used for the purpose of promoting one or more Client Services.
"Affiliate" means, with respect to an entity, any other person or entity that, directly or indirectly, controls, or is under the control of, or is under common control with, the applicable entity, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of voting rights of such entity.
"Business Day" means any day except any Saturday, any Sunday, any day which is a federal or national legal holiday in the United States or Japan or any day on which banking institutions in Japan or the State of California are authorized or required by law or other governmental action to close.
"Client" means any User who submits a request, or attempts to submit a request, for Optimizers to provide Creatives through the Service. As used in these Terms, "Client" refers to a User acting in such User's capacity as a Client.
"Client Service" means any product or service sold or provided by a Client.
"Creatives" means any creative content provided by a User to another User via the Service.
"Creative Brief" means a summary of the requirements for a particular Creative that is provided by a Client for the Client's Project.
"Fees" means, collectively, Project Fees (as defined in Section 7.1), Revision Fees (as defined in Section 7.1), any fees for the purchase of Kaizen Credits (as described in Section 7.3) and any other fees payable by a User in connection with the Site or the Service.
"Intellectual Property Rights" means all patent rights, copyrights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
"Losses" means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys' fees and all related costs and expenses).
"Optimizer" means any User who submits or attempts to submit any Creative(s) (or applies for status on the Service that would allow such User to submit Creative(s)) to any Client via the Site or the Service. As used in these Terms, "Optimizer" refers to a User acting in such User's capacity as a Optimizer.
"Project" means any matter with respect to which a Client requests, or attempts to request, any Creatives from Optimizers via the Service.
"User" means any individual or entity that uses or otherwise accesses the Site or the Service.
"User Content" means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other information that you or any Site visitor or User post to any part of the Site or provide to Kaizen Platform.
2. Requirements for Using the Site and the Service
2.1 Terms of Agreement
(1) Representations and Warranties for User Registration
Each time you use the Site or the Service, including without limitation any time you register to create an Account ("User Registration"), you represent and warrant as follows:
(1) If you are entering into these Terms are on your behalf as an individual, you have the legal capacity to enter into this Agreement as a binding legal agreement between you and Kaizen Platform. If you are entering into these Terms on behalf of a legal entity (such as a corporation or limited liability company), you have the authority to bind the legal entity to this Agreement and the entity will in fact be bound to this Agreement following your agreement to these Terms.
(2) You have reached the age of legal majority in the jurisdiction(s) from which you register for, and use, the Site and the Service.
(3) All information you provide to Kaizen Platform shall be true, correct and up to date, including the information you provide for User Registration.
Each time you use the Site or Service, you also provide the representations and warranties and other agreements set forth in Section 18.7 below.
(2) No Relationship with Antisocial Forces
You represent, warrant and covenant that neither you nor (if you are an entity) any of your directors, statutory auditors, employees, other constituent members, shareholders, clients or advisers is, or will be, a member of any Antisocial Forces. "Antisocial Forces" means any organized crime group, any associate member, partial member, or unofficial member of any organized crime group, a business affiliate or partner of any organized crime group, a racketeer, extortionist, or any other group or individual that pursues economic gain through the use of violence, threats or fraud. You represent, warrant and covenant that you will not interact or be involved with Antisocial Forces, including providing any financial or other support.
2.2 Rejection of Your User Registration
Kaizen Platform has the right to reject your User Registration, without notice or explanation, including (but not limited to) under the following circumstances:
(1) You breach, or appear likely to breach (as determined by Kaizen Platform in its sole discretion), any provision of these Terms, including the representations and warranties set forth above in Section 2.1.
(2) You engage in any activity that Kaizen Platform, in its sole discretion, determines to be inappropriate, unethical or detrimental to the Site, the Service, another User or Kaizen Platform's reputation or business.
3. License to Use the Site and the Service
3.1 Grant of License
Subject to your compliance with these Terms, Kaizen Platform grants you a limited, non-exclusive, non-assignable, non-sublicensable license to use the Site and the Service for the purposes and on the terms and conditions set forth in these Terms during the Term of this Agreement (the "License"). Both you and Kaizen Platform may terminate this Agreement at any time, as set forth in Section 14 below, and in the event of such termination, the License will immediately terminate.
3.2 Limitations of the License
In connection with the grant of the License, you covenant and agree as follows:
(1) You will use the Site and the Service only for their intended purposes. You will not use the Site or the Service for any commercial purpose not explicitly approved in writing by Kaizen Platform. Unapproved commercial purposes include sublicensing, granting, selling, lending, removing, transferring, distributing and customizing the Site and the Service for any third party.
(2) You will not modify or rewrite any part of the Site or the Service, including reverse engineering, decompiling or diassembling source code, object code or software. You will not create any derivative works based on any portion of the Site or the Service.
(3) You will not use the Site or the Service to advertise or establish any separate product or service without the prior written consent of Kaizen Platform.
(4) You will not copy, distribute or publish any part of the Site or the Service.
(5) You will not revise, modify or delete any copyright notice or other notice incorporated into any content on the Site or the Service.
(6) You acknowledge and agree that Kaizen Platform may modify, suspend or terminate the Site or the Service either partially or entirely without prior notice, at any time, in Kaizen Platform's sole discretion, and in such case, Kaizen Platform shall have no liability to you whatsoever for such modification, suspension, or termination.
3.3 Limitations on Site and Service Functionality
Only persons who have successfully completed User Registration in accordance with these Terms to become a Client may act as a Client on the Service. Only persons who have successfully completed User Registration and an application for registration as an Optimizer in accordance with these Terms may act as an Optimizer on the Service.
4. Optimizer Accounts
4.1 Application to Register as an Optimizer
The provisions of this Section 4 apply to you if you are, or take any action to become, an Optimizer.
If you desire to become an Optimizer, you must complete a provisional registration in accordance with these Terms and the instructions provided on the Site or through the Service. The provisional registration must be approved by Kaizen Platform in order for you to become an Optimizer, and Kaizen Platform may reject any provisional registration for any reason in Kaizen Platform's sole discretion.
4.2 Requirements for Remuneration
You acknowledge and agree that you will not receive any remuneration for any Creative or other services unless and until you have fully completed registration as an Optimizer in accordance with these Terms and the instructions provided on the Site. Payment for any particular Adopted Creative will occur only once such Adopted Creative is transferred to the applicable Client(s) in accordance with Section 6 below.
4.3 Security of Login Credentials
You are responsible for the security of your login credentials (e.g., username and password). Kaizen Platform shall have no responsibility or liability whatsoever for any Losses you suffer in the event that your credentials become known to a third party or your Account is accessed by a third party.
4.4 No Assignment of Your Account
You are the only person authorized to use your Account on the Service. You may not assign, rent, convey or otherwise transfer your Account to another person or offer your Account as collateral for an obligation.
4.5 Notification Obligation for Unauthorized Use
If you become aware or suspect that a third party has used your Account without authorization, or that your Account has been the subject of some other security violation, you must immediately notify Kaizen Platform by contacting firstname.lastname@example.org.
5. Client Accounts
5.1 Creation of Account
The provisions of this Section 5 apply to you if you are, or take any action to become, a Client.
Any person desiring to become a Client must complete User Registration in accordance with these Terms and the instructions provided on the Site.
5.2 Security of Login Credentials
You are responsible for the security of your login credentials (e.g., username and password). Kaizen Platform shall have no responsibility or liability whatsoever for any Losses you suffer in the event that your credentials become known to a third party or your Account is accessed by a third party.
5.3 No Assignment of Your Account
You are the only person authorized to use your Account on the Service. You may not assign, rent, convey or otherwise transfer your Account to another person or offer your Account as collateral for an obligation.
5.4 Notification Obligation for Unauthorized Use
If you become aware or suspect that a third party has used your account without authorization, or that your account has been the subject of some other security violation, you must immediately notify Kaizen Platform by contacting email@example.com.
6. Using the Service
6.1 Starting a Project
If you are a Client, you may start a Project by creating a Creative Brief in accordance with the format and instructions provided on the Site and uploading the required assets. You may not start a Project through any other process.
After you create your Creative Brief, subject to approval by Kaizen Platform, you may solicit Creatives from Optimizers by following the instructions on the Site or the Service, including making the payments required under Section 7.1 below.
6.2 Creating a Creative Brief
Each Creative Brief must clearly designate the requirements for the Creative(s) in your Project and must allow Optimizers to clearly understand the criteria you will use for screening and evaluating the Creatives provided by Optimizers for your Project.
6.3 Responding to a Creative Brief
If you are an Optimizer and you agree to provide one or more Creatives in response to a Creative Brief, you agree that the Creative(s) you provide will be consistent with the Creative Brief and provided by the applicable deadline provided on the Site, the Service or separately agreed with the Client or Kaizen Platform. You understand that there is no assurance that the Client will select your Creative(s) for the Project and accordingly you might not receive any remuneration for your Creative(s). In addition, you understand that Kaizen Platform may preemptively reject your Creative(s) before they are displayed to the Client in the event that Kaizen Platform determines in its sole and absolute discretion that your Creative(s) are not suitable for the Project.
6.4 Selection of Creative for Adoption
If you are a Client, you must select the Creative that you will adopt during the application period for your Project. However, you may decline to adopt any Creative if you reasonably determine that none of the Creatives provided are suitable for the Project. Once you select the Creative to adopt, that Creative will become the "Submitted Product" for the applicable Project.
6.5 Reviewing and Requesting Edits of the Adopted Creative
(1) If you are a Client, once you select the Submitted Product, you will review the Submitted Product in accordance with the applicable Creative Brief and notify the Optimizer within 30 business days from the day of submission of the Submitted Product (the "Inspection Period") if you have accepted the Submitted Product or if you are requesting revisions to the Submitted Product in accordance with Section 6.5(2) below. If you confirm that you will not request revisions, the Submitted Product will become your Adopted Creative for the Project. If you do not request any revisions during the Inspection Period pursuant to Section 6.5(2) below, you will be deemed to have accepted the Submitted Product as your Adopted Creative for the Project.
(2) If you are a Client, once you have selected a Submitted Product, but before the Submitted Product becomes your Adopted Creative, if you reasonably determine that there are defects in the Submitted Product (in comparison to your Creative Brief), you may make a request to the Optimizer for revisions of the Submitted Product in accordance with the limited number of requests permitted by the instructions on the Site or separately provided by Kaizen Platform. In such case, you and the Optimizer will agree on a separate deadline for revisions (or the deadline will be set forth on the Site) and the Optimizer will submit a revised Submitted Product by that deadline. If no separate deadline is agreed or provided on the Site, the deadline for revisions will be two Business Days from the date on which you make the request for revisions.
(3) If you are a Client and you reasonably determine that even after the revision process set forth in Section 6.5(2) above the Submitted Product still contains defects in comparison to your Creative Brief, you can request an additional set of revisions by following the same procedures set forth in Section 6.5(2).
(4) If you are a Client, you understand that making multiple requests for revisions may require a separate payment. If a separate payment is required, notice of such requirement will be set forth on the Site and you will be informed of the requirement prior to your submission of the applicable request for revisions. In addition, you may not request that an Optimizer make a greater number of revisions than is permitted by the instructions set forth on the Site or separately provided by Kaizen Platform.
(5) If you are an Optimizer and a Client makes requests for revisions in accordance with Section 6.5(2) or Section 6.5(3) above, you will provide the Submitted Content to the Client with the applicable revisions via the Service by the applicable deadline.
(6) The Client's acquisition of the rights to the Submitted Product is governed by Section 8 below.
6.6 No Kaizen Platform Liability for Harmful Content
You are responsible for scanning all transferred files for viruses and malware. Kaizen Platform will not be responsible for any damages which might occur due to your use of the Site, the Service or any Creatives, or your use of content or files transferred.
7. Payments, Fees and Kaizen Credits
(1) In principle, Clients must pay a fee to submit a Creative Brief to request Creatives from Optimizers (a "Project Fee"). Unless the Site explicitly states otherwise, all Clients should expect to pay a Project Fee before they are able to request Creatives from Optimizers. The Project Fee for a particular Project will be as set forth on the Site or via the Service when a Client elects to initiate the Project and submit a Creative Brief. If you are a Client, you agree to pay the Project Fee when you elect to initiate your Project after being informed of the Project Fee.
(2) In accordance with Section 6.5(4) above, Clients may also be required to pay an additional fee to request revisions to Submitted Products (a "Revision Fee").
(3) If you are a Client, Kaizen Platform will provide notice to you of the amount of the Project Fee via the Site or the Service before you submit your Creative Brief to request Creatives. By proceeding to submit your Creative Brief to request Creatives, you agree to pay the Project Fee. Similarly, Kaizen Platform will provide notice to you of any Revision Fee via the Site or the Service before you submit your request for revisions that would result in the incurrence of a Revision Fee. In such case, by proceeding to submit your request for revisions, you agree to pay the Revision Fee.
(4) If you are a Client, Kaizen Platform will notify you via the Site or the Service of accepted methods of payment prior to payment of the applicable Fee, and you agree to pay all Fees using one of these accepted methods. For example, Kaizen Platform may in its discretion allow payment to be made by credit card using a third-party payment processing service such as a Paypal, or by use of Kaizen Credits (defined below).
7.2 Kaizen Credits
Kaizen Platform generally allows Clients to use Kaizen Credits to pay Project Fees and Revision Fees.
"Kaizen Credits" are credits issued by Kaizen Platform that may be used to pay Fees on the Site or through the Service.
7.3 Issuance and Use of Kaizen Credits
(1) Once you have completed User Registration as a Client in accordance with these Terms, you can apply to purchase Kaizen Credits in accordance with the instructions provided on the Site or through the Service.
(2) Kaizen Credits will be issued as follows:
(a) The price per Kaizen Credit will be set forth on the Site (exclusive of any applicable taxes unless otherwise described on the Site). However, any "bonus" Kaizen Credits will be issued free of charge. Kaizen Platform has no obligation to issue bonus Kaizen Credits.
(b) Each Kaizen Credit will be valid until such Kaizen Credit's expiration date (the "Credit Expiration Date"). You will be informed of the Credit Expiration Date for each Kaizen Credit at the time you apply to purchase such Kaizen Credit. If you do not use a Kaizen Credit prior to its Credit Expiration Date, the unused Kaizen Credits will terminate and be automatically cancelled without any refund, effective as of the Credit Expiration Date. The Credit Expiration Date for Kaizen Credits purchased as part of any monthly subscription plan will be the final day of the month in which the Kaizen Credits are granted, unless explicitly stated otherwise on the Site or the Service. Kaizen Credits purchased as part of any monthly subscription plan may not be used in advance of their availability (for example, Kaizen Credits that will become available on the first day of a particular month may not be used prior to that date).
(c) You will be able to view your balance of Kaizen Credits through the Site or the Service in a manner determined by Kaizen Platform.
7.4 Purpose and Method of Using Kaizen Credits
(1) Kaizen Credits are for use by Clients to pay Fees through the Service or the Site. However, Kaizen Platform may, in its sole discretion, allow Clients to use Kaizen Credits on other sites or services offered by Kaizen Platform.
(2) Any Kaizen Credits that are used to pay any Fee will be immediately cancelled and may not be reused.
(3) Kaizen Credits that you have purchased will not be returned, exchanged, cancelled or refunded under any circumstances, except as may be required by law or in the event that, as determined by Kaizen Platform in its sole discretion, there are major changes to the Site or the Service which materially impede your ability to continue using the Site or the Service.
7.5 No Assignment of Kaizen Credits
You may not assign, convey, sell, loan, hypothecate or otherwise transfer Kaizen Credits to another party. You may not offer Kaizen Credits as security for any obligation.
7.6 Right to Prohibit Use of Kaizen Credits
In the event that you violate applicable law or regulations or this Agreement, Kaizen Platform may temporarily or permanently prohibit you from using Kaizen Credits or cancel all or a portion of your Kaizen Credits.
7.7 Protecting Your Kaizen Credits
You are responsible for protecting your Kaizen Credits. Kaizen Platform will not be liable for any Losses incurred in connection with any unauthorized access or use of your Kaizen Credits.
7.8 Purchase of Kaizen Credits
(1) Kaizen Credits may be purchased only in whole units. Kaizen Credits may not be purchased in fractional increments.
(2) You will make all payments to Kaizen Platform in accordance with these Terms and any other instructions provided on the Site or the Service or otherwise by Kaizen Platform.
(3) Purchases of Kaizen Credits will be billed in a single transaction, provided that Kaizen Platform may, in its sole discretion, allow billing in installment payments. In the case of billing in installment payments, in the event that any amount billed would be less than the cost of one Kaizen Credit (and thus would result in the purchase of a fractional Kaizen Credit), the amount billed will be rounded up such that you purchase one whole Kaizen Credit with such installment payment.
(4) Billing for Kaizen Credits will not be prorated based on the use period or Credit Expiration Date, even if you purchase a monthly Kaizen Credit subscription (if available) and begin using the Site or the Service after the first day of the applicable month.
(5) You agree to pay all Kaizen Credit payment obligations as they become due in accordance with these Terms and the instructions on the Site or the Service. Any failure to fulfill your Kaizen Credit payment obligations on the applicable due date is a material breach of this Agreement.
(6) Kaizen Platform may, but has no obligation to, sell monthly or other recurring subscription plans for Kaizen Credits. In such case, the duration of the subscription plan and specific details of pricing and the applicable Credit Expiration Dates will be as set forth on the Site or via the Service.
7.9 Payments to Optimizers
(1) If you are an Optimizer, the fees payable to you as full consideration for each Creative and your revisions thereto pursuant to
Section 6 above (the "Optimizer Project Fee") will be as set forth on the Site or via the Service when you agree to submit a Creative for the applicable Project. You understand and acknowledge that, other than the Optimizer Project Fee, no fees or royalties whatsoever shall be payable to you for any services or Intellectual Property Rights you undertake or provide in connection with any Creative.
(2) If you are an Optimizer, you will be paid for your work on a Project within 30 days following the Client's adoption of your Creative in accordance with Section 6 above.
(3) Kaizen Platform may select the method of payment to any Optimizer in Kaizen Platform's reasonable discretion. Paypal and similar online payment services shall be deemed reasonable payment methods.
You are responsible for paying any direct or indirect taxes, including any general sales tax, value added tax or other tax, which may apply to you depending on residency or location. You represent and warrant that you comply, and will comply at all times, with your obligations under income tax provisions in your jurisdiction.
7.11 Payment Processing
(2) By providing payment method information through the Site or the Service and authorizing payments with your payment method, you represent, warrant, and covenant that: (a) you are legally authorized to provide such information; (b) you are legally authorized to make payments using the payment method(s) you provide; (c) if you are an employee or agent of a company or person that owns the payment method, you are authorized by the company or person to use the payment method to make payments to Kaizen Platform via the Site and the Service; and (d) such actions do not violate the terms and conditions applicable your use of such payment method(s) or applicable law. When you authorize a payment using a payment method via the Site, you represent and warrant that there are sufficient funds or credit available to complete the payment using the designated payment method. To the extent that any amounts owed under this Agreement cannot be collected from your payment method(s), you are solely responsible for paying such amounts by other means.
(3) Because the use of any payment method may be limited by applicable law or by written agreement with your financial institution, Kaizen Platform is not liable to you or any other User if Kaizen Platform does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an account associated with such payment method. Kaizen Platform will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement.
(4) You agree that Kaizen Platform shall be entitled to be reimbursed by you if Kaizen Platform provides the Site and the Service in accordance with this Agreement but receives any chargeback from the payment method used by you despite Kaizen Platform's compliance with this Agreement. You agree that Kaizen Platform has the right to obtain such reimbursement by charging any accounts you hold with Kaizen Platform or its Affiliates, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your payment method, or obtaining reimbursement from you by any other lawful means. If Kaizen Platform is unable to obtain such reimbursement, Kaizen Platform may, in addition to any other remedies available under applicable law,temporarily or permanently revoke your access to the Site and the Service and close your Account.
(5) If you purchase a recurring subscription plan for the Service, you irrevocably authorize and instruct Kaizen Platform to automatically charge (either directly or through a third-party payment processing service) the fees for your subscription plan, if any, at the beginning of each billing period. This authorization will remain in full force and effect until you change your settings for your Account to change your subscription plan, otherwise notify Kaizen Platform that you wish to revoke your authorization by contacting Kaizen Platform's customer support, or terminate your Account.
(6) If you purchase a recurring subscription plan, you will be able to switch between subscription plans at any time, but you will not receive a refund or a credit for any of the subscription plan Fees for a given month if you terminate your paid subscription plan before the end of a billing period. However, if you terminate your paid subscription plan, you will still have your paid subscription plan until the end of the billing period.
7.12 Failure to Pay
(1) If you are in "default", meaning you fail to pay any Fees or any other amounts when due under this Agreement, or a written agreement for payment terms incorporating these Terms (signed by an authorized representative of Kaizen Platform), Kaizen Platform will be entitled to the remedies described in this Section 7.12 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, you will be deemed to be in default on the earliest occurrence of any of the following: (a) you fail to pay any Fees when due, (b) you fail to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days, an account current after a credit or debit card is declined or expires, (c) you fail to pay an invoice issued to you by Kaizen Platform within the time period agreed or, if none, within 30 days, (d) you initiate a chargeback with a bank or other financial institution resulting in a charge made by Kaizen Platform for any Fees or such other amount due being reversed to you, or (e) you take other actions or fail to take any action that results in a negative or past-due balance on your account.
(2) If you are in default, Kaizen Platform may, without notice, temporarily or permanently close your Account and revoke your access to the Site and the Service, including your authority to use the Site to process any additional payments, submit Creative Briefs, or obtain any additional Optimizer services from other Users through the Site. However, you will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on your Account as a result of the default. Without limiting other available remedies, you must pay Kaizen Platform upon demand for any amounts owed, plus interest on the outstanding amount at five percent (5%) per year or, if less, the maximum interest allowed by applicable law, plus attorneys' fees and other costs of collection to the extent permitted by applicable law.
(3) At Kaizen Platform's discretion and to the extent permitted by applicable law, Kaizen Platform or its Affiliates may, without notice, charge all or a portion of the amount that is owed to any payment method on file on your Account; set off amounts due against other amounts received from you or held for you by Kaizen Platform or an Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
7.13 No Return of Funds
You acknowledge and agree that Kaizen Platform or its Affiliates will charge your designated payment method for the Fees incurred as described in these Terms and that once Kaizen Platform or its Affiliates charges or debits your designated payment method for the Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. You also acknowledge and agree that these Terms provide a dispute resolution process as a way for you to resolve disputes. To the extent permitted by applicable law, you therefore agrees not to ask your credit card company, bank, or other payment method provider to charge back any Fees or other fees charged pursuant to these Terms for any reason. A chargeback in breach of the foregoing obligation is a material breach of these Terms. If you initiate a chargeback in violation of this Agreement, you agree that Kaizen Platform or its Affiliates may dispute or appeal the chargeback and institute collection action against you and take such other action as Kaizen Platform deems appropriate.
8. Intellectual Property
8.1 Kaizen Platform's Intellectual Property
Kaizen Platform and its licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Service. The Kaizen Platform logos and names are trademarks of Kaizen Platform and are registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or the Service may be the trademarks of their respective owners.
Nothing in these Terms grants you a right to use any Kaizen Platform marks.
8.2 User Content, Creatives and Your Indemnification of Kaizen Platform
(1) When you post User Content or Creatives on the Site or through the Service or otherwise provide Kaizen Platform with User Content or Creatives, you understand and acknowledge that you are solely responsible for such User Content and Creatives. Further, you represent and warrant that you have the right, power, and authority to (a) post that User Content or Creative, as the case may be, without violating the rights of third parties, and (b) grant the rights and licenses specified in these Terms.
(2) You acknowledge and agree that the poster of User Content and any Creative, and not Kaizen Platform, is responsible for the User Content or Creative, as the case may be, including any harm caused to you, another User, or a third party by such User Content or Creative.
(3) You will indemnify, defend, and hold harmless Kaizen Platform, its Affiliates, and their respective directors, officers, employees, representatives, and agents (each an "Indemnified Party") from any and all Losses arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to or arising out of any User Content or Creative you post to or submit through the Site or the Service.
(4) You retain all ownership rights in any User Content or Creative you post on the Site or the Service, except as provided in these Terms. To the extent permitted by applicable law, you also grant to Kaizen Platform and its successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content or Creative and your name, voice, and/or likeness as contained in your User Content or Creative, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Site, the Service and Kaizen Platform's, its successors' and Affiliates' businesses, including, without limitation, for promoting and redistributing part or all of the Site or the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User and each Site visitor a non-exclusive license to access your User Content and Creatives through the Site and to use, reproduce, distribute, and display such User Content and Creatives to the extent permitted through the normal functionality of the Site and the Service and subject to all applicable confidentiality and other provisions of these Terms and applicable law.
8.3 Ownership of Adopted Creatives
(1) Ownership of Adopted Creatives shall initially vest with the Optimizer who provided the Adopted Creative and shall only be transferred to the Client as provided in Section 8.3(2) below.
(2) Effective upon delivery of the Adopted Creative to the Client and subject in all respects to the Client's payment of Fees for the applicable Project, the Optimizer assigns to the Client all Intellectual Property Rights in the Adopted Creative, and the Optimizer irrevocably waives, and covenants and agrees not to exercise, any and all moral rights therein. The Adopted Creative shall be considered work-for-hire under the U.S. Copyright Act. In the event the Adopted Creative (or any portion of the Adopted Creative) does not meet the requirements of work-for-hire or when the U.S. Copyright Act does not apply, the Optimizer expressly agrees to assign to the Client the copyright in the Adopted Creative (or the applicable portion thereof). All transfer and assignment of Intellectual Property Rights to the Client shall be subject to full payment of all Fees for the applicable Project, and the Client may not use the Adopted Creative, and the transfer of Intellectual Property Rights will not be effective, if the Client's payment of any such Fees is not provided or is cancelled for any reason.
(3) If you are an Optimizer, you represent and warrant that you own, or will own at the time of the submission of each Creative, all Intellectual Property Rights necessary for you to comply with Section 8.3(2) above. Notwithstanding the foregoing, if you and the Client explicitly agree in advance in writing that certain of the Intellectual Property Rights in the Creative will not be transferred to the Client as required by Section 8.3(2), such agreement shall govern instead of the provisions of Section 8.3(2) with respect to those Intellectual Property Rights.
(4) If you are an Optimizer, you agree to cooperate with Kaizen Platform and the applicable Client as reasonably necessary to effect the assignment of Intellectual Property Rights set forth in this Section 8.3.
8.4 Intellectual Property Rights of Third Parties
(1) The provisions below apply with respect to the Intellectual Property Rights of any third party that are incorporated into any Creative ("Third-Party IP").
(2) If you are an Optimizer, you represent and warrant that you have the full right and authority to use the Third-Party IP, incorporate the Third-Party IP into the Creative, and, unless explicitly agreed otherwise with the Client in writing, assign the Third-Party IP so as to comply with the provisions of Section 8.3 above. For clarity and to the extent permitted by applicable law, all the Third-Party IP that is incorporated into an Adopted Creative shall be assigned to the Client in accordance with Section 8.3.
(3) If you are an Optimizer and you agree in writing with the Client that your Creative incorporates Third-Party IP that cannot or will not be assigned to the Client pursuant to Section 8.3, you represent and warrant that you have full right and authority to grant, and do grant, the Client an irrevocable, royalty-free, perpetual, worldwide, sublicensable, assignable right to use the Third-Party IP in the Adopted Creative for any purpose, unless explicitly agreed otherwise in writing with the Client, effective at the same time as the assignment of the other Intellectual Property Rights in the Adopted Creative pursuant to Section 8.3.
8.5 License to Kaizen Platform
To the extent permitted by applicable law, you also grant to Kaizen Platform and its successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all Creatives (regardless of whether or not used as a Supplied Product or an Adoptive Creative), and feedback regarding Creatives, to provide, improve, develop and promote the Site or the Service. For clarity, Kaizen Platform may, in its sole discretion, share any feedback regarding Creatives with Optimizers. You agree that (1) Kaizen Platform may include your name on any Adopted Creative (that you approve or submit) in the event that Kaizen Platform uses or otherwise discloses the Adopted Creative on the Site or via the Service and (2) you will respond to and consider in good faith any requests by Kaizen Platform for cooperation in interviewing you, photographing you, or using your logo in connection with the marketing or promotion of the Site or the Service.
9. Non-Circumvention Agreement
For 24 months from the time you identify or are identified by any party (whether a Client, Optimizer or other User) through the Site or the Service, you agree to use the Site and the Service as your exclusive method to request, make, and receive all video advertisement work directly or indirectly with that party. If you use the Site or the Service as an employee, agent, or representative of another business, then this non-circumvention obligation applies to you and other employees, agents, or representatives of the business when acting in that capacity with respect to other Users. For clarity, you agree not to engage in any transactions that circumvent the Site or Service regardless of which party initiates the request.
9.2 Notification Obligation
You agree to immediately inform Kaizen Platform if you learn that another User has violated or attempted to violate Section 9.1.
10. Regarding Creatives
10.1 No Kaizen Platform Liability for Creatives, Optimizers Responsible
(1) If you are a Client, you acknowledge that Kaizen Platform shall have no liability whatsoever for any Losses arising out of or in relation to any Creative and that each Optimizer takes full responsibility for its Creatives.
(2) If you are an Optimizer, you agree that you shall be solely liable for any Losses relating to any of your Creatives and Kaizen Platform shall have no such liability.
10.2 Prohibited Content for Creatives
If you are an Optimizer, you represent, warrant and covenant that you will not provide any Creatives that fall into any of the categories set forth below. If you violate, or appear likely to violate (as determined by Kaizen Platform in its sole discretion), this Section 10.2, Kaizen Platform may delete your Creatives and may suspend, terminate and/or delete your account. The prohibited categories are as follows:
(1) Creatives that include any content that violates any legal rights (for example, copyright, trademark, patent or trade secret rights, moral rights of authorship, rights of privacy or rights of publicity) of any third party.
(2) Creatives that include any content that is harassing, abusive, illegal, threatening, vulgar, defamatory, fallacious, materially misleading, slanderous, pornographic, obscene, clearly obnoxious (for example, racially discriminatory or promoting physical damage against any persons or property) or harmful to minors.
(3) Creatives that include any content that violates any laws, regulations or other legal restrictions applicable to Kaizen Platform, the Site, the Service or you.
(4) Creatives that include any other content that Kaizen Platform in its sole discretion deems to be inappropriate.
11. Client Services and License to Kaizen Platform
11.1 Prohibition Regarding Client Service
If you are a Client, you represent, warrant and covenant that you will not use the Site, the Service or any Creatives in combination with any content that falls into any of the categories set forth below. If you violate, or appear likely to violate (as determined by Kaizen Platform in its sole discretion), this Section 11.1, Kaizen Platform may suspend, terminate or delete your account. The prohibited categories are as follows:
(1) Any content which violates any legal rights (for example, copyright, trademark, patent or trade secret rights, moral rights of authorship, rights of privacy, rights of publicity) of any third party.
(2) Any content that violates any laws, regulations or other legal restrictions applicable to Kaizen Platform, the Site, the Service or you.
11.2 License-back to Kaizen Platform
In addition to and not in limitation of the rights set forth in Section 8.4 above, you grant the following rights to Kaizen Platform.
(1) You grant Kaizen Platform an irrevocable, worldwide, royalty-free license to use (in part or in their entirety), duplicate, record, deliver, transmit, reproduce, distribute, sublicense, exhibit, translate, and create derivative works from, any intellectual property (hereinafter referred to as this "Creative Asset" or "Creative Assets" depending upon context) provided by you in connection with a Creative or Project to the extent reasonably necessary, in Kaizen Platform's sole judgment, for Kaizen Platform to operate the Site and provide the Service. You agree that if such actions by Kaizen Platform result in a dispute between you and a third party, Kaizen Platform shall have no liability whatsoever for any Losses incurred in connection with such actions.
(2) You agree and acknowledge that Kaizen Platform may disclose and display statistical information regarding any Adopted Creative, along with the Adopted Creative itself, on the Site, at any time and for any duration, in order to provide, improve, develop and promote the Site and the Service. In addition, Kaizen Platform may share data with third-party service providers in order to generate and calculate such statistical information.
13. Handling of Confidential Information
13.1 Use of Confidential User Information
In the course of using the Site or the Service, you may obtain non-public information regarding Kaizen Platform or other Users (collectively, "User Information"). You agree to use User Information only as reasonably necessary for your use of the Site and the Service and keep all User Information confidential and not disclose such information to any third party without the prior written approval of Kaizen Platform and the party that disclosed such User Information. The obligation of confidentiality in this Section 13.1 does not apply if you are compelled to disclose the information pursuant to a valid law, regulation or court order.
13.2 Exceptions to Confidentiality Obligation
Your obligation of confidentiality set forth in Section 13.1 above does not apply to the following User Information:
(1) Information which was already publicly known prior to the disclosure by the disclosing party.
(2) Information which you can show you already possessed before it was disclosed to you by the disclosing party.
(3) Information which became publicly known after it was disclosed to you, through no fault of yours.
(4) Information you acquire without any obligation of confidentiality and without any violation of any confidentiality obligations or other legal obligations.
(5) Information that you develop yourself independently of the disclosed information.
14. Contract Period and Termination of this Agreement
14.1 Termination of this Agreement
(1) Both you and Kaizen Platform may terminate this Agreement in your or Kaizen Platform's sole discretion, as applicable, at any time that you are not a Client or Optimizer participating in an ongoing Project, without explanation, upon written notice to the other party. You may provide written notice to firstname.lastname@example.org. In the event you properly terminate this Agreement, your right to use the Site and the Service will be immediately and automatically revoked, your account will be closed and your User Registration will be terminated. Kaizen Platform has additional termination rights, including those set forth under Section 14.1(3) below.
(2) If you attempt to terminate this Agreement while having one or more open Projects, you agree that (a) you authorize Kaizen Platform to close any open Projects, which Kaizen Platform in its sole discretion may, but is not obligated to, do; (b) you will continue to be bound by this Agreement until all such Projects have closed; (c) Kaizen Platform will continue to provide the Service necessary to complete any open Project or related transaction between you and another User; and (d) you will fulfill your remaining obligations in respect of the Project in accordance with these Terms and in good faith and continue to be obligated to pay any (i) Fees and other amounts accrued but unpaid as of the date of termination or as of the closure of any open service contracts, whichever is later, to Kaizen Platform for any Service and (ii) such other amounts owed under these Terms and to any Optimizers for services they have provided for your benefit.
(3) Without limiting Kaizen Platform's other rights or remedies, Kaizen Platform may, but is not obligated to, temporarily or indefinitely revoke access to the Site or Service, deny your registration, permanently revoke your access to the Site, refuse to provide any portion or all Service to you, and/or terminate and delete your Account, if any of the following occurs:
(a) You breach the letter or spirit of any terms and conditions of this Agreement;
(b) Kaizen Platform suspects or becomes aware that you have provided false or misleading information to Kaizen Platform; or
(c) Kaizen Platform believes, in its sole judgment, that your actions may cause legal liability for you, Kaizen Platform’s Users, or Kaizen Platform or its Affiliates; may be contrary to the interests of the Site or the User community; may damage the reputation of the Site, the Service or Kaizen Platform; or may involve illicit or illegal activity.
If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without Kaizen Platform's prior written consent.
(4) You acknowledge and agree that the value, reputation, and goodwill of the Site and the Service depend on transparency of each User's Account status to all Users, including both yourself and other Users who are involved in your Projects. You therefore agree as follows: IF KAIZEN PLATFORM DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, KAIZEN PLATFORM HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS INVOLVED IN YOUR PROJECTS TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT KAIZEN PLATFORM WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
14.2 Account Data After Termination of this Agreement
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site or the Service. You understand and acknowledge that any closure of your Account may involve deletion of any content stored in your Account for which Kaizen Platform will have no liability whatsoever. Kaizen Platform, in its sole discretion and as permitted or required by law, may retain some or all of your Account data.
14.3 Survival of Certain Provisions of this Agreement
After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of these Terms, the termination of this Agreement for any reason will not release you or Kaizen Platform from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
15. Indemnification and Release of Claims
You will indemnify, defend, and hold harmless all Indemnified Parties for all Indemnified Claims (defined below) relating to or arising out of: (a) the use of the Site or the Service by you or your agents, including any payment obligations or default incurred through use of the Service; (b) any Project entered into by you or your agents; the classification of Kaizen Platform as an employer or joint employer of any Optimizer; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with these Terms by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 15, your "agents" include any person who has apparent authority to access or use your Account as demonstrated by using your username and password.
"Indemnified Claim" means any and all Losses arising from or relating to any claim, suit, proceeding, demand, or action brought by you, another User or any other third party against an Indemnified Party.
15.2 Release of Claims
In addition to the recognition that Kaizen Platform is not a party to any contract between Users, you hereby release Kaizen Platform, its Affiliates, and their respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity, that exist as of the time you enter into this Agreement. This release includes, for example and without limitation, any disputes regarding the content and quality of the Creatives and other services provided by Optimizers to Clients.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
This release will not apply to a claim that Kaizen Platform failed to fulfill its obligations under these Terms.
16. Disclaimers and Limitation of Liability
16.1 Disclaimer of Warranties
YOUR USE OF THE SITE, THE SERVICE AND ANY CREATIVES IS AT YOUR OWN RISK. THE SITE, THE SERVICE AND ALL CREATIVES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT, WITH RESPECT TO CREATIVES, AS EXPLICITLY SET FORTH IN THESE TERMS. NEITHER KAIZEN PLATFORM NOR ANY PERSON ASSOCIATED WITH KAIZEN PLATFORM MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, AVAILABILITY OF THE SITE, THE SERVICE OR THE CREATIVES. KAIZEN PLATFORM EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16.2 Limitation of Liability
IN NO EVENT WILL KAIZEN PLATFORM, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, THE SERVICE, ANY CREATIVES, ANY WEBSITES LINKED TO THE SITE, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
IF THE FOREGOING IS NOT EFFECTIVE, THEN TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF KAIZEN PLATFORM, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, AND THEIR RESPECTIVE SUPPLIERS, DISTRIBUTORS AND LICENSORS, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID TO KAIZEN PLATFORM TO USE THE SERVICE DURING THE MOST RECENT TWELVE (12) MONTHS.
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE OR THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT ORDER OR OTHER RELIEF THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY CUSTOMER SITES, WEBSITES, APPLICATION, CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY KAIZEN PLATFORM (INCLUDING YOUR LICENSED CONTENT) OR A LICENSOR OF KAIZEN PLATFORM.
17. Dispute Resolution
17.1 Dispute Process, Arbitration
(1) Dispute Process and Scope
You and Kaizen Platform and its Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to these Terms, the Site, the Service, your relationship with Kaizen Platform (including without limitation any claimed employment with Kaizen Platform or one of its Affiliates or successors) or the termination of your relationship with Kaizen Platform (each, a "Claim") in accordance with this Section 17.
Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Section 17.
(2) Informal Dispute Resolution
Before serving a demand for arbitration of a Claim, you and Kaizen Platform agree to first notify (in each case, a "Notice") each other of the Claim. You agree to notify Kaizen Platform of the Claim at:
Kaizen Platform USA, Inc.
71 Stevenson St, Suite 400
San Francisco CA 94105
United States of America
Attention: Legal Department
You and Kaizen Platform then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Kaizen Platform, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Kaizen Platform will have 60 days from the date of the receipt of the Notice to informally resolve the other party's Claim, which, if successful, will avoid the need for further action.
(3) Applicability to Overseas Users and Binding Arbitration
This Section 17 applies to all Users except Users located outside of the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Kaizen Platform, and its Affiliates agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
(4) Scope of Arbitration Agreement and Conduct of Arbitration
This Section 17.1(4) applies to any Claim the parties may have and survives after your relationship with Kaizen Platform ends. Claims covered by this Section 17.1(4) include, but are not limited to, all claims, disputes or controversies arising out of or relating to these Terms. This Section 17.1(4) is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in San Francisco County, California, in accordance with the JAMS Comprehensive Arbitration Rules and Procedures' Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Optimizers that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where the Optimizer is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com. Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
This Section 17.1(4) does not apply to litigation between Kaizen Platform and you that is or was already pending in a state or federal court or arbitration at the time you entered into this Agreement. Notwithstanding any other provision of this Agreement, no amendment to this Section 17.1(4) will apply to any matter pending in an arbitration proceeding brought under this Section 17 unless all parties to that arbitration consent in writing to that amendment.
This Section 17.1(4) also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.
Nothing in this Section 17 prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Section 17 prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Section 17. This Section 17 also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Section 17. Nothing in this Section 17 prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Kaizen Platform will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
(5) Interpretation and Enforcement
This Section 17 is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Section 17, this Section 17 covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Section 17, including the enforceability, revocability, scope, or validity of this Section 17 or any portion of this Section 17. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Section 17, this Agreement, or any other part of these Terms or this Agreement is void or voidable.
This Section 17 replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Section 17. In the event any portion of this Section 17 is deemed unenforceable, the remainder of this Section 17 will be enforceable.
18. General Provisions
18.1 Amendment of Terms
Kaizen Platform may amend or update these Terms from time to time by notifying you of the amendment or update via email to the email address you most recently provided to Kaizen Platform or via a notification posted on the Site or the Service.
You may not assign any of your rights and obligations under this Agreement without the prior written consent of Kaizen Platform. Kaizen Platform may freely assign all or a portion of its rights and obligations under this Agreement without notice. Subject to the foregoing restrictions, this Agreement is binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
18.3 Governing Law
This Agreement and any dispute arising out of or in connection with this Agreement shall be governed by the law of the State of California, without regard to conflict of law principles that would result in the application of the law of any other jurisdiction. However, notwithstanding the foregoing sentence, Section 17 is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).
18.4 Entire Agreement
This Agreement, together with the other documents incorporated by reference herein, set forth the entire agreement and understanding between you and Kaizen Platform relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and Kaizen Platform, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in these Terms are included for ease of reference only and have no binding effect. Even though Kaizen Platform drafted these Terms, you represent that you had ample time to review and decide whether to agree to these Terms. If an ambiguity or question of intent or interpretation of these Terms arises, no presumption or burden of proof will arise favoring or disfavoring you or Kaizen Platform because of the authorship of any provision of these Terms.
If and to the extent any provision of these Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
18.6 Force Majeure
Neither you nor Kaizen Platform will be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of you or Kaizen Platform, as the case may be.
18.7 Your Location
Kaizen Platform makes no representations that the Site or the Service are appropriate or available for use outside of the United States. Those who access or use the Site or the Service from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Site and the Service, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or the Service is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and the Service and your license to use the Site and the Service will be immediately revoked.
18.8 Consent to Use Electronic Records
In connection with the Site, the Service and this Agreement, you may be entitled to receive certain records from Kaizen Platform or its Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Service, you give Kaizen Platform permission to provide these records to you electronically instead of in paper form.
18.9 Interpretation of These Terms
(1) Unless the context otherwise requires, whenever the words "including", "include" or "includes" are used in these Terms, they shall be deemed to be followed by the phrase "without limitation".
(2) In addition to other notice methods permitted under applicable law, any requirement in these Terms for the provision of notice in writing may be satisfied by the provision of the required notice (a) if the notice is being provided to a User, by email to such User's email address as most recently provided to Kaizen Platform by such User and (b) if the notice is being provided to Kaizen Platform, by email to the applicable Kaizen Platform email address set forth in these Terms.