Terms Of Service
These Terms of Service are agreed to between Kiry and the individual or entity(such individual or entity is hereinafter referred to as “You”, and “Your”) that accesses Kiry's website at https://shopkiry.com/ (the “Website”) .
PLEASE CAREFULLY READ THESE TERMS. BY ACCESSING THE WEBSITE AND/OR ORDERING THE PRODUCT(S), YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS (INCLUDING ANY POLICIES WHICH ARE INCORPORATED HEREIN BY REFERENCE). IF YOU DO NOT AGREE TO THESE TERMS, OR DO NOT MEET THE QUALIFICATIONS INCLUDED HEREIN, KIRY IS NOT WILLING TO PROVIDE YOU WITH THE PRODUCT(S) AND YOU MUST NOT ACCESS OR USE THE WEBSITE OR PRODUCT(S).
You are responsible for compliance with these Terms (including any other policies which are incorporated herein by reference). Unless You later enter into any other signed, written agreements with Kiry, these Terms contain the complete and exclusive agreement between You and Kiry regarding the subject matter hereof. These Terms supersede any prior agreement or proposal, oral or written, and any other communications between You and Kiry relating to the subject matter hereof.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 12, You agree that disputes arising under these Terms (including any dispute arising from your purchase or use of a Product) will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND KIRY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 12.)
Kiry is not licensed to provide dental care and the Website does not (and is not intended to) provide any medical or dental care or medical advice. Products are not a substitute for a visit to your dentist. If you wish to receive medical or dental care or medical advice, please contact a dentist or other licensed medical care provider.
1. DEFINITIONS. Capitalized words or phrases used in these Terms have the definitions given in these Terms or, if not defined in these Terms, have their plain English meaning as commonly interpreted in the United States.
2. RESERVATION OF RIGHTS. Kiry reserves the right to refuse service to You for any reason at any time. You understand that Your content (not including credit card information), may be transferred unencrypted and involve: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Website or Product(s), without express written permission by Kiry. The Website may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only.
3. MODIFICATIONS. Kiry may, at any time, modify the Website or Product(s), with or without notice to You, by making those modifications available on the Website. Kiry also reserves the right, at any time, to modify these Terms. Kiry will inform You of the presence of any changes to these Terms by posting those changes on the Website or by providing You with notice through the Website. Any modifications will be effective immediately upon posting on the Website or delivery of such notice through the Website. You may terminate these Terms as set forth below if You object to any such modifications. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Website or Product(s) following such notice period. Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. Kiry reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
4. ELIGIBILITY. The Website and Product(s) are intended for use by individuals 18 years of age and older. If You are a parent or guardian of a child under 18, then You may allow Your child to access the Website or Product(s) only under Your direct supervision. You will not allow Your child to access the Website or Product(s) other than under Your direct supervision and You will be solely responsible for all access to and use of the Website or Product(s) by Your child. Kiry does not recommend or endorse rigid guards (hard or hybrid materials) for children under 18 as rigid guards can stunt oral development.
5. WEBSITE USE.
a. ACCESS. Subject to your complete and ongoing compliance with these Terms, Kiry grants You, solely for Your own personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Website.
b. RESTRICTIONS. Except and solely to the extent such a restriction is impermissible under applicable law, You may not, and you may not permit a third party to: (a) reproduce, distribute, sell, license, lease, transfer, publicly display, or publicly perform the Website or any content therein; (b) make modifications or changes to or derivative works of the Website or any content therein; (c) interfere with or circumvent any feature of the Website, including any security or access control mechanism; (d) use the Website or content therein for any competitive purpose; (e) access or attempt to access the Website or content therein except as expressly provided in these Terms; (f) use automated scripts to collect information from or otherwise interact with the Website or content therein; or (g) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Website or content therein. In addition to other prohibitions as set forth in the Terms, You are prohibited from using the Website or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. Kiry reserves the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
c. SUSPENSION. Without limiting Kiry’s right to terminate these Terms, Kiry may also suspend Your access to the Website, with or without notice to You, upon any actual, threatened or suspected breach of these Terms or applicable law or upon any other conduct deemed by Kiry, in its sole discretion, to be inappropriate or detrimental to the Website, Kiry, or any other User or third party.
6. OWNERSHIP. Kiry retains all right, title, and interest, including, without limitation, all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights in and to the Website and Products and any data, content, information or code therein, and including in each case any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Website and You are not granted any right or license to use the Website itself, apart from Your ability to access the Website under this Agreement. The Kiry name, logo, and all product and service names associated with the Website or Product(s) are trademarks of Kiry and its licensors and third party providers and You are granted no right or license to use them.
7. INDEMNITY. You hereby agree to indemnify, defend, and hold harmless Kiry and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (i) Your access to or use of the Website or Product(s); (ii) violation of applicable Laws; and (iii) Your breach of any representation, warranty, or other provision of these Terms. Kiry will use reasonable efforts to provide You with notice of any such claim or allegation, and Kiry will have the right to participate in the defense of any such claim at its expense.
8. LIMITATIONS OF LIABILITY. KIRY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE WEBSITE OR PRODUCT(S), EVEN IF KIRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT OR SERVICES. KIRY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $500. YOU AGREE THAT KIRY WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, KIRY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9. RELEASE. In consideration of the exclusive remedies set forth in these Terms and the Refund Policy, You hereby release and forever discharge Kiry, its affiliates, and its and their employees, agents, contractors, assigns, licensees, and successors in interest from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, the Website or the Product(s).
10. DATA PRIVACY. You expressly consent to the use and disclosure of Your personal data and other data and information as described in Kiry’s privacy policy, available at https://shopkiry.com/pages/privacy-policy (the “Privacy Policy”). Notwithstanding anything in the Privacy Policy, Kiry will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information (data or information that does not identify an entity or natural person as the source thereof) resulting from Your access to and use of the Website. To the extent any such non-personally identifiable data or information is collected or generated by Kiry, the data and information will be solely owned by Kiry and may be used by Kiry for any lawful business purpose without a duty of accounting to You, provided that the data and information is used only in an aggregated form, without directly identifying You or any other entity or natural person as the source thereof.
11. FEEDBACK. If You provide Kiry any feedback or suggestions regarding the Website or Product(s) (“Feedback”), You hereby assign to Kiry all rights in the Feedback and agree that Kiry shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting to You. Kiry will treat any Feedback You provide to Kiry as non-confidential and non-proprietary. You agree that You will not submit to Kiry any information or ideas that You consider to be confidential or proprietary.
12. GOVERNING LAW AND VENUE. The interpretation of the rights and obligations of the parties under these Terms, including, to the extent APPLICABLE, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California, U.S.A. as such laws apply to contracts between California residents performed entirely within California without regard to the conflict of laws provisions thereof. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to these Terms, including the formation, validity, binding effect, interpretation, performance, breach or termination, of these Terms and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating these Terms (each, a “Dispute”), in accordance with the procedures set forth in this section. If any Dispute cannot be resolved through negotiations between the parties within five days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Terms of Service delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Kiry in Alameda County, California. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. Subject to this section, each party will bring any action or proceeding arising from or relating to these Terms exclusively in a federal or state court in California and each party irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts.
13. NOTICES. Unless otherwise specified in these Terms, any notices required or allowed under these Terms will be provided to Kiry by postal mail to the address for Kiry listed on the Website. Kiry may provide You with any notices required or allowed under these Terms by sending You an email to any email address You provide to Kiry in connection with Your use of the Website, provided that in the case of any notice applicable both to You and other Users of the Website, Kiry may instead provide such notice by posting on the Website. Notices provided to Kiry will be deemed given when actually received by Kiry. Notice provided to You will be deemed given immediately after posting to the Website or sending via email.
14. LINKED SITES. The Website may contain links to third party sites or content that are not under the control of Kiry. If You access a third party site or content from the Website, then You do so at Your own risk and Kiry is not responsible for any content on any linked site or content.
15. ADDITIONAL TERMS. Any waiver or failure by Kiry to enforce any provision of these Terms on one occasion will not be deemed a waiver by Kiry of any other provision or of such provision on any other occasion. If any provision of these Terms is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to these Terms will be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal. Neither these Terms nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Kiry. Any assignment in violation of the foregoing will be null and void. Kiry may assign these Terms to any party that assumes Kiry’s obligations hereunder. The parties hereto are independent parties, not agents, employees of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.