Terms of Service

These Terms of Use (“Terms”) govern your access to, and use of, the websites (each, a “Site” or “Website”), mobile applications and online services or programs (collectively, the “Services”) operated by or on behalf of the Kyma Inc. (“Kyma”) and on which these Terms appear. These Terms are a legal and binding agreement between you and Kyma. Your use of the Services indicates your acceptance of these terms, and any additional agreements incorporated herein by reference. Kyma reserves the right in its sole discretion to modify or discontinue the Services, the Website or modify these Terms, in whole or in part, at any time and without advance or individual notice.  If we modify these Terms, we will revise the “last updated” date located at the top. If you continue to use the Website or the Services after any such change, you will be deemed to have read, understood, and agreed to them. Do not use the Services if you do not agree to be bound by these Terms, and any changes thereto.

Kyma strives to ensure that the information and features contained on or offered through the Website, mobile app, mobile text program, or online services are accurate and reliable. However, Kyma and the Services are not infallible, and errors may sometimes occur. Therefore, to the fullest extent permitted by applicable law, Kyma makes no representations or warranties about the accuracy of the information or reliability of the features of the Services, the Kyma Content (defined below), Submitted Content (defined below), or any other Service feature. You acknowledge that any reliance on such material and/or features will be at your own risk. Kyma is not responsible for the information, data, text, or other materials that may appear in Submitted Content or may otherwise be submitted by users. Opinions expressed in Submitted Content do not necessarily reflect the opinions of Kyma, and Kyma does not endorse, and has no control over, Submitted Content. Submitted Content may or may not be reviewed by Kyma prior to posting and Kyma makes no representations or warranties, express or implied, as to the Submitted Content, including with respect to the accuracy and reliability of the Submitted Content. Kyma makes no representations or warranties regarding the amount of time that any Kyma Content or Submitted Content will be preserved.

The Services are provided on an “as is, as available” basis without any representation or warranty, express or implied, of any kind. To the fullest extent permitted by law, Kyma hereby disclaims all representations and warranties of any kind or nature, including, but not limited to, the implied warranties of merchantability, accuracy, non-infringement, and fitness for any particular purpose. Kyma disclaims any and all liability for the acts, omissions, and conduct of any third-party service providers, partners, sponsors, licensors, licensees, and the like (“Providers”) in connection with or related to your use of the Services and materials, programs, and features made available therein.

To the fullest extent permitted by applicable law, in no event shall Kyma be liable to any person for damages of any kind under any legal theory, including, but not limited to, any direct, indirect, special, consequential, punitive, or other damages (lost profits, business interruption, or loss of information, programs, or data) resulting from your use or inability to use the Services, even if Kyma has been advised of the possibility of such damages. Some jurisdictions may not permit the exclusion or limitation of certain damages and therefore such exclusions may not apply to you.

INDEMNIFICATION

You agree to indemnify, defend, and hold harmless Kyma, its parent, subsidiary and affiliated entities, their Providers, and all of their respective  officers, directors, employees, attorneys, and agents (collectively ”Kyma Entities”),from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and expenses that arise directly or indirectly out of or from: (1) your breach of these Terms; and/or (2) your use of the Services and/or materials, programs, and features made available therein.

COMMUNICATING WITH KYMA

The Services may give you the ability to contact Kyma by electronic mail, for example, to sign up for services such as e-mail notifications and newsletters about Kyma’s products or to register for a particular sweepstakes or contest. The information that you provide to Kyma through the Services is governed by Kyma’s Privacy Policy.

KYMA PROPERTY

The Website and the Services, and all intellectual property, and intellectual property rights, title and interest contained therein, is and will remain the sole and exclusive property of Kyma. Without limitation, this intellectual property includes many valuable trademarks owned and used by Kyma to distinguish Kyma’s quality products and services, as well as all text, images, graphics, software, source code, apps, specifications, audio files, videos, works that form part of or contained on or made available through this Website and the Services (“Kyma Content”). Kyma Content is protected under national laws and, except where otherwise expressly noted herein, is not to be copied, distributed, displayed, exhibited, reproduced, made available, transmitted or otherwise exploited in any form, by any means, without the prior express written consent of Kyma. Neither these Terms nor your use of the Kyma Content conveys or will convey to you any right, title, or interest in or in relation to the Kyma Content, except for the limited right to access and use the Website, Services and Kyma Content that is granted to you in these Terms.

USER-SUBMITTED CONTENT

Certain areas of the Services may enable you to post, display, publish or otherwise submit remarks, ideas, images, photos, suggestions, graphics, and/or other materials and content (“Submitted Content”). You acknowledge that you are responsible for the Submitted Content, and you, not Kyma, have full responsibility for the Submitted Content, including its legality, reliability, appropriateness, originality, and copyright, trademark and other intellectual property ownership, privacy, and personality/publicity rights. You represent that the posting, displaying, publishing or use of your Submitted Content on or through the Website or Services does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, their privacy rights, personality/publicity rights, contract rights, copyrights, trademark and/or other intellectual property rights and that you have sought and obtained express permission from the holder of any such rights; you agree to pay for all royalties, fees, and any other monies owed by reason of Submitted Content you post, display, publish or otherwise submit. Further, you represent that by posting, displaying, publishing, or otherwise submitting Submitted Content on or through the Services, you understand and acknowledge that any materials, ideas, or other communications you transmit will not be treated as confidential and Kyma is under no obligation to treat the Submitted Content as proprietary.

You agree that Kyma is free to use the Submitted Content, and you grant Kyma a sub-licensable, transferable, perpetual, nonexclusive, worldwide, royalty-free license to (in any media, whether now known or not currently known or invented) link to, utilize, use, publicly perform, publicly display, reproduce, distribute, edit, adapt, modify, and prepare derivative works of the Submitted Content. Subject to the license herein, you retain ownership of any copyrights or other intellectual property rights in the Submitted Content.

When submitting Submitted Content or otherwise using the Website and Services, you agree not to, without limitation: (i) attempt to gain unauthorized access to the Website or the Services; (ii) cause any damage or disruption to the Website or the Services; (iii) engage in conduct that invites criminal or civil liability; (iv) use false email addresses, impersonate another individual or entity;  (v) defame, harass, or threaten another individual, including without limitation, through the dissemination of unsolicited communications; (vi) alter another’s Submitted Content; and (vii) use any language that offends the standards of public decency as determined by Kyma in its sole discretion.

ONLINE PURCHASES

To purchase food products, merchandise, or other items through the Services, you must provide valid payment card and billing information. Such information will be collected by Kyma. Your information will be collected and used in accordance with Kyma’s Privacy Policy. When you purchase items through the Services, prices will be made clear during the order process. You agree to pay the price that is stated at the time of your order, as well as any applicable taxes and fees. You also agree to have your payment card billed for the total amount displayed at check out. By purchasing items through the Services, you represent and warrant to Kyma that you are capable of entering into a contract under the applicable law.

WEBSITE ACCESS

Kyma hereby grants you permission to use the Services as set forth in these Terms, provided that: (i) your use of the Services as permitted is solely for your personal, noncommercial use; (ii) you will not copy, distribute, display, exhibit, reproduce, make available,  transmit or otherwise exploit any part of the Services in any medium without Kyma’s prior written authorization; (iii) you will not alter or modify any part of the Services; and (iv) you will otherwise comply with these Terms.

In order to access some features of the Services, you will have to create an account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. Although Kyma will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Kyma or others due to such unauthorized use.

HYPERLINKS

The Services may link to sites not maintained by or related to Kyma. Hypertext links are provided as a service to users and may or may not be sponsored by or affiliated with the Services or Kyma. Kyma may or may not review the sites hyperlinked to or from the Services and is not responsible for the content of any other site. These links are to be accessed at the user’s own risk. Kyma makes no representations or warranties, express or implied, about the content, completeness, or accuracy of these links or the sites hyperlinked to or from the Services. Furthermore, Kyma does not implicitly endorse third-party sites hyperlinked to or from this Website.

VIOLATION OF THESE TERMS AND REMEDIES

You agree that Kyma may, in its sole discretion and without prior notice, block and/or terminate your access to the Services if Kyma determines that you have violated these Terms or other agreements or guidelines that may be associated therewith. You also agree that any violation, or threatened violation, by you of these Terms constitutes an unlawful and unfair business practice, and will cause irreparable and unquantifiable harm to Kyma. You also agree that monetary damages would be inadequate for such harm and consent to Kyma’s obtaining any injunctive or equitable relief that Kyma deems necessary or appropriate. These remedies are in addition to any other remedies that Kyma may have at law or in equity.

If Kyma takes legal action against you as a result of your violation of these Terms, Kyma will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Kyma. You agree that Kyma will not be liable to you or to any third party for termination of your access to the Services, mobile app, programs, and/or services as a result of any violation of these Terms.

GOVERNING LAW AND JURISDICTION

These Terms including all issues and questions concerning the construction, validity, interpretation, and enforceability of these Terms, or the rights and obligations of you or Kyma in connection with your use of the Services or your Submitted Content, and with the exception of the arbitration provision below, shall be governed by, and construed in accordance with, the laws of the province of Nova Scotia, without giving effect to the conflict of laws rules thereof.

Subject to the arbitration provision below, any action or proceeding arising out of or relating to this Website and under these Terms will be instituted in the courts of the Province of Ontario and/or the Federal Court of Canada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. You waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.

DISPUTE RESOLUTION, ARBITRATION CLAUSE AND CLASS ACTION WAIVER

To the extent permitted by applicable law, you agree that any claim or dispute at law or equity that has arisen or may arise relating in any way to or arising out of these Terms against Kyma Entities will be resolved in accordance with the provisions set forth in this section. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED.

You agree that whenever you have a disagreement with Kyma or any Kyma Entity arising out of, connected to, or in any way related to these Terms, you will send a written notice to Kyma (“Demand”). You agree that the requirements of this Dispute Resolution section will apply even to disagreements that may have arisen before you accepted these Terms. You agree that you will not take any legal action, including filing a lawsuit or demanding arbitration, until 10 business days after you send a Demand. If the disagreement stated in the Demand is not resolved to your satisfaction within 10 business days after it is received, the Demand (1) will be resolved exclusively by arbitration, without right of appeal; (2) the arbitration will be held in Toronto, Ontario; (3) the arbitrator’s decision shall be controlled by these Terms and any of the other agreements referenced herein that the applicable user may have entered into; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) the arbitrator shall not have the power to award punitive damages against you or any Kyma Entity; (6) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Kyma Entity exceed CAD $150, and you are unable to pay any fees and deposits that exceed this amount, Kyma agrees to pay them on your behalf, subject to ultimate allocation by the arbitrator; and (7) with the exception of subpart (5) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (5) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor any affected Kyma Entity shall be entitled to arbitrate their dispute.

This arbitration provision limits the ability of you and Kyma to litigate claims in court and you and Kyma each agree to waive your respective rights to a jury trial or a provincial or federal judge. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would. You agree that you will not file any lawsuit against Kyma in any provincial or federal court. You agree that if you do sue in provincial or federal court, and Kyma brings a successful motion to compel arbitration, you must pay all fees and costs incurred by Kyma in court, including reasonable attorney’s fees. 

CLASS ACTION WAIVER

To the extent permitted by applicable law, you agree that you will not file a class action or collective action against Kyma, and that you will not participate in a class action or collective action against them. You agree that you will not join your claims to those of any other person.

MISCELLANEOUS

These Terms constitute the entire agreement between you and Kyma and govern your use of the Services and supersede all prior or contemporaneous communications and proposals whether electronic, oral or written, between you and Kyma with respect to the Services. Both you and Kyma acknowledge and agree that no partnership is formed and neither you nor Kyma has the power or the authority to obligate or bind the other.

The failure of Kyma to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties’ original intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect.

The failure of Kyma to comply with these Terms for any reason, including without limitation, because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, provincial or local governmental authorities, or for any other reason beyond the reasonable control of Kyma shall not be deemed a breach of this agreement. If Kyma fails to act with respect to your breach or anyone else’s breach on any occasion, Kyma is not waiving its right to act with respect to future or similar breaches.

The headings in these Terms are for your convenience and reference. These headings do not limit or affect this agreement.

If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

BINDING AGREEMENT

These Terms constitute a binding agreement between you and Kyma, and are accepted by you upon your use of the Services. This agreement constitutes the entire agreement between you and Kyma regarding the use of the Services and the features therein and supersedes and replaces any prior agreements between you and Kyma regarding the use of the Services. By using the Services, you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.

You agree to indemnify, defend, and hold harmless Kyma, its affiliates, its providers, and its officers, directors, employees, attorneys, and agents from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and expenses that arise directly or indirectly out of or from: (1) your breach of these Terms; and/or (2) your activities in connection with the Services and/or materials, programs, and features made available therein.