TERMS OF USE
Welcome to Hiki, operated by Hiki, Inc. (“us,” “we,” the “Company” or “Hiki”).
1. Acceptance of Terms of Use Agreement.
By creating a Hiki account or by using any Hiki service, whether through a mobile device, mobile application or computer (collectively, the “Service”) you agree to be bound by (i) these Terms of Use and our Privacy Policy each of which is incorporated by reference into this Agreement, and (ii) any terms disclosed to you if you purchase or have purchased additional features, products or services we offer in connection with the Service (collectively, this “Agreement”). If you do not accept and agree to be bound by all of the terms of this Agreement (other than the limited one-time opt out right for certain users provided for in Section 15), you should not use the Service.
We may make changes to this Agreement and to the Service from time to time. We may do this for a variety of reasons including to reflect changes in or requirements of the law, new features, or changes in business practices. The most recent version of this Agreement will be posted on www.hikiapp.com, and you should regularly check for the most recent version. The most recent version is the version that applies. If the changes include material changes that affect your rights or obligations, we will notify you in advance of the changes by reasonable means, which could include notification through the Service or via email. If you continue to use the Service after the changes become effective, then you agree to the revised Agreement. You agree that this Agreement shall supersede any prior agreements (except as specifically stated herein), and shall govern your entire relationship with Hiki, including but not limited to events, agreements, and conduct preceding your acceptance of this Agreement.
2. Eligibility.
You must be at least 18 years of age to create an account on Hiki and use the Service. By creating an account and using the Service, you represent and warrant that:
you can form a binding contract with Hiki,
you are not a person who is barred from using the Service under the laws of the United States or any other applicable jurisdiction–meaning that you do not appear on the U.S. Treasury Department’s list of Specially Designated Nationals or face any other similar prohibition,
you will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations, and
you have never been convicted of or pled no contest to a felony, a sex crime, or any crime involving violence, and that you are not required to register as a sex offender with any state, federal or local sex offender registry.
3. Your Account.
In order to use Hiki, you must sign in using your login credentials. You are responsible for maintaining the confidentiality of your login credentials you use to sign up for Hiki, and you are solely responsible for all activities that occur under those credentials. If you know or think someone has gained access to your account, please immediately contact help@hikiapp.com.
4. Modifying the Service and Termination.
Hiki is always striving to improve the Service and bring you additional functionality that you will find engaging and useful. This means we may add new product features or enhancements from time to time as well as remove some features, and if these actions do not materially affect your rights or obligations, we may not provide you with notice before taking them. We may even suspend the Service entirely, in which event we will notify you in advance unless extenuating circumstances, such as safety or security concerns, prevent us from doing so.
You may terminate your account at any time, for any reason; however if you use a third party payment account, you will need to manage in app purchases through such account (e.g., iTunes, App Store, Google Play) to avoid additional billing.
Hiki may terminate your account at any time without notice if it believes that you have violated this Agreement. Upon such termination, you will not be entitled to any refund for purchases. After your account is terminated, this Agreement will terminate, except that the following provisions will still apply to you and Hiki: Section 4, Section 5, and Sections 12 through 19.
5. Safety; Your Interactions with Other Users.
Though Hiki strives to encourage a respectful user experience through features like the double opt-in that only allows users to communicate if they have both indicated interest in one another, it is not responsible for the conduct of any user on or off of the Service. You agree to use caution in all interactions with other users, particularly if you decide to communicate off the Service or meet in person. You agree that you will not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, to other users.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT HIKI DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS OR OTHERWISE INQUIRE INTO THE BACKGROUND OF ITS USERS. HIKI MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS. HIKI RESERVES THE RIGHT TO CONDUCT – AND YOU AGREE THAT HIKI MAY CONDUCT - ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES) AT ANY TIME USING AVAILABLE PUBLIC RECORDS.
6. Rights Hiki Grants You.
Hiki grants you a personal, worldwide, royalty-free, non-assignable, nonexclusive, revocable, and non-sublicensable license to access and use the Service. This license is for the sole purpose of letting you use and enjoy the Service’s benefits as intended by Hiki and permitted by this Agreement. Therefore, you agree not to:
use the Service or any content contained in the Service for any commercial purposes without our written consent.
copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, images, trademarks, trade names, service marks, or other intellectual property, content or proprietary information accessible through the Service without Hiki’s prior written consent.
express or imply that any statements you make are endorsed by Hiki.
use any robot, bot, spider, crawler, scraper, site search/retrieval application, proxy or other manual or automatic device, method or process to access, retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents.
use the Service in any way that could interfere with, disrupt or negatively affect the Service or the servers or networks connected to the Service.
upload viruses or other malicious code or otherwise compromise the security of the Service.
forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted to or through the Service.
“frame” or “mirror” any part of the Service without Hiki’s prior written authorization.
use meta tags or code or other devices containing any reference to Hiki or the Service (or any trademark, trade name, service mark, logo or slogan of Hiki) to direct any person to any other website for any purpose.
modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service, or cause others to do so.
use or develop any third-party applications that interact with the Service or other users’ Content or information without our written consent.
use, access, or publish the Hiki application programming interface without our written consent.
probe, scan or test the vulnerability of our Service or any system or network.
encourage or promote any activity that violates this Agreement.
The Company may investigate and take any available legal action in response to illegal and/ or unauthorized uses of the Service, including termination of your account.
Any software that we provide you may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device’s settings.
7. Rights you Grant Hiki.
By creating an account, you grant to Hiki a worldwide, transferable, sub-licensable, royalty-free, right and license to host, store, use, copy, display, reproduce, adapt, edit, publish, modify and distribute information you authorize us to access, as well as any information you post, upload, display or otherwise make available (collectively, “post”) on the Service or transmit to other users (collectively, “Content”). Hiki’s license to your Content shall be non-exclusive, except that Hiki’s license shall be exclusive with respect to derivative works created through use of the Service. For example, Hiki would have an exclusive license to screenshots of the Service that include your Content. In addition, so that Hiki can prevent the use of your Content outside of the Service, you authorize Hiki to act on your behalf with respect to infringing uses of your Content taken from the Service by other users or third parties. This expressly includes the authority, but not the obligation, to send notices pursuant to 17 U.S.C. § 512(c)(3) (i.e., DMCA Takedown Notices) on your behalf if your Content is taken and used by third parties outside of the Service. Our license to your Content is subject to your rights under applicable law (for example laws regarding personal data protection to the extent any Content contains personal information as defined by those laws) and is for the limited purpose of operating, developing, providing, and improving the Service and researching and developing new ones. You agree that any Content you place or that you authorize us to place on the Service may be viewed by other users and may be viewed by any person visiting or participating in the Service (such as individuals who may receive shared Content from other Hiki users).
You agree that all information that you submit upon creation of your account is accurate and truthful and you have the right to post the Content on the Service and grant the license to Hiki above.
You understand and agree that we may monitor or review any Content you post as part of the Service. We may delete any Content, in whole or in part, that in our sole judgment violates this Agreement or may harm the reputation of the Service.
You grant Hiki the right to verify your identity at some point while using the Hiki app to protect the user base from scammers and underage users. During the ID verification process, you understand that the Hiki app will be inaccessible until the safety team has approved your ID. A government-issued ID, student ID, or other identification showing your birthdate, name, and photo can verify your account. You understand that selfies or photos of yourself are not a valid form of identification, and you will refrain from submitting these types of media. Once you’ve submitted an approved form of identification and have satisfactorily met the requirements of the Hiki safety team, your profile will be verified, any ID submitted will be permanently deleted from our system, and access to the Hiki app will again be granted.
When communicating with our customer care representatives, you agree to be respectful and kind. If we feel that your behavior towards any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate your account.
In consideration for Hiki allowing you to use the Service, you agree that we, our affiliates, and our third-party partners may place advertising on the Service. By submitting suggestions or feedback to Hiki regarding our Service, you agree that Hiki may use and share such feedback for any purpose without compensating you.
You agree that Hiki may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of the Company or any other person.
8. Community Rules.
By using the Service, you agree that you will not:
use the Service for any purpose that is illegal or prohibited by this Agreement.
use the Service for any harmful or nefarious purpose.
use the Service in order to damage Hiki.
spam, solicit money from or defraud any users, including fundraising, soliciting for paid or unpaid research studies, surveys, or events, or self-promotion of your business.
impersonate any person or entity, or act as a proxy for another person.
post any images of another person without their consent or permission, including those of children under 18.
bully, “stalk,” intimidate, assault, harass, mistreat, or defame any person on or off the Hiki platform.
post any Content that violates or infringes anyone’s rights, including rights of publicity, privacy, copyright, trademark, or other intellectual property or contract rights.
post any Content revealing personal information such as email addresses, phone numbers, addresses, or any other personally identifiable information on the Hiki platform, including the public community feed and/or on a personal Hiki profile.
post any links to groups or platforms off the Hiki app on the public community feed.
post any Content that is hate speech, threatening, sexually explicit, or pornographic; incites or glorifies violence against an individual or group; or contains nudity or graphic or gratuitous violence.
post any Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual.
solicit passwords for any purpose, or personal identifying information for commercial or unlawful purposes from other users, or disseminate another person’s personal information without their permission.
use another user’s account, share an account with another user, or maintain more than one account.
create another account if we have already terminated your account, unless you have our explicit written permission.
repeatedly or excessively post in the public community feed, “spam” the public community feed.
Hiki reserves the right to investigate, suspend and/ or terminate your account without a refund of any purchases if you have violated this Agreement, misused the Service or behaved in a way that Hiki regards as inappropriate or unlawful, including actions or communications that occur on or off the Service.
9. Other Users’ Content.
Although Hiki reserves the right to review and remove Content that violates this Agreement, such Content is the sole responsibility of the user who posts it, and Hiki cannot guarantee that all Content will comply with this Agreement. If you see Content on the Service that violates this Agreement, please report it within the Service or via help@hikiapp.com.
10. Purchases.
Generally. From time to time, Hiki may offer products and services for purchase (“in app purchases”) through iTunes, App Store, Google Play, carrier billing, Hiki direct billing or other payment platforms authorized by Hiki. If you choose to make an in app purchase, you will be prompted to confirm your purchase with the applicable payment provider, and your method of payment (be it your card or a third party account such as Google Play or iTunes) (your “Payment Method”) will be charged at the prices displayed to you for the service(s) you’ve selected as well as any sales or similar taxes that may be imposed on your payments, and you authorize Hiki or the third party account, as applicable, to charge you.
Auto-Renewal. If you purchase an auto-recurring periodic subscription, your Payment Method will continue to be billed for the subscription until you cancel. After your initial subscription commitment period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing subject to any price increase then in effect. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to log in to your third party account and follow instructions to cancel your subscription, even if you have otherwise deleted your account with us or if you have deleted the Hiki application from your device. Deleting your account on Hiki or deleting the Hiki application from your device does not cancel your subscription; Hiki will retain all funds charged to your Payment Method until you cancel your subscription on the third party account, as applicable. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term, and your subscription will not be renewed after your then-current term expires.
Additional Terms that apply if you pay Hiki directly with your Payment Method. If you pay Hiki directly, Hiki may correct any billing errors or mistakes that it makes even if it has already requested or received payment. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, Hiki may terminate your account immediately in its sole discretion.
You may edit your Payment Method information by visiting your third party. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information or cancel your subscription, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates. In addition, you authorize us to obtain updated or replacement expiration dates and card numbers for your credit or debit card as provided by your credit or debit card issuer. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method.
Refunds. Generally, all charges for purchases are nonrefundable, and there are no refunds or credits for partially used periods. If you subscribed through your Apple ID, refunds are handled by Apple, not Hiki. You can request a refund from Apple through your Apple ID account on your phone or at https://getsupport.apple.com.
11. Notice and Procedure for Making Claims of Copyright Infringement.
If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Service (and such description must be reasonably sufficient to enable us to find the alleged infringing material);
your contact information, including address, telephone number and email address;
a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Notice of claims of copyright infringement should be provided to the Company’s Copyright Agent via email to help@hikiapp.com.
Hiki will terminate the accounts of repeat infringers.
12. Disclaimers.
Hiki and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Hiki and all such parties together, the “Hiki Parties”) make no representations or warranties concerning the Service, including without limitation regarding any content contained in or accessed through the Service (including, without limitation, Content) or any actions taken as a result of any use of the Service, and the Hiki Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Service or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Service. The Hiki Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Service, including, without limitation any information provided through webinars, blogs, or other services or features provided by Hiki. HIKI (AND ITS LICENSORS AND SUPPLIERS) PROVIDE THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICE (INCLUDING ALL CONTENT CONTAINED THEREIN), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. HIKI DOES NOT REPRESENT OR WARRANT THAT (A) THE SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, (B) ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, OR (C) THAT ANY CONTENT OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICE WILL BE ACCURATE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
HIKI TAKES NO RESPONSIBILITY FOR ANY CONTENT THAT YOU OR ANOTHER USER OR THIRD PARTY POSTS, SENDS OR RECEIVES THROUGH THE SERVICE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE (INCLUDING MATERIAL PROVIDED BY OR ON BEHALF OF THE HIKI PARTIES) IS ACCESSED AT YOUR OWN DISCRETION AND RISK.
HIKI DISCLAIMS AND TAKES NO RESPONSIBILITY FOR ANY CONDUCT OF YOU OR ANY OTHER USER, ON OR OFF THE SERVICE, INCLUDING ACTIONS TAKEN AS A RESULT OF YOUR OR ANY OTHER USER’S USE OF THE SERVICE.
13. Third Party Services.
The Service may contain advertisements and promotions offered by third parties and links to other web sites or resources. Hiki is not responsible for the availability (or lack of availability) of such external websites or resources. If you choose to interact with the third parties made available through our Service, such party’s terms will govern their relationship with you. Hiki is not responsible or liable for such third parties’ terms or actions.
14. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY OF THE HIKI PARTIES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, LOSS OF PROFITS, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES OR ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, RESULTING FROM: (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (II) THE CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES ON, THROUGH OR FOLLOWING USE OF THE SERVICE; OR (III) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR CONTENT, EVEN IF HIKI HAS BEEN ADVISED AT ANY TIME OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL HIKI’S AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT EXCEED THE AMOUNT PAID, IF ANY, BY YOU TO HIKI DURING THE TWENTY-FOUR (24) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT YOU FIRST FILE A LAWSUIT, ARBITRATION OR ANY OTHER LEGAL PROCEEDING AGAINST HIKI, WHETHER IN LAW OR IN EQUITY, IN ANY TRIBUNAL. THE DAMAGES LIMITATION SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE APPLIES (i) REGARDLESS OF THE GROUND UPON WHICH LIABILITY IS BASED (WHETHER DEFAULT, CONTRACT, TORT, STATUTE, STRICT LIABILITY, OR OTHERWISE), (ii) IRRESPECTIVE OF THE TYPE OF BREACH OF OBLIGATIONS, AND (iii) WITH RESPECT TO ALL EVENTS, THE SERVICE, CONTENT, AND THIS AGREEMENT.
THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 14 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL WITH RESPECT TO THEIR ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
15. Retroactive and Prospective Arbitration, Class-Action Waiver, and Jury Waiver.
Except where prohibited by applicable law:
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), or the Service, regardless of the date of accrual and including past, pending, and future claims, shall be BINDING ARBITRATION administered by the American Arbitration Association under the Consumer Arbitration Rules. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against Hiki in a small claims court of competent jurisdiction in New York, New York. Such arbitration shall be conducted by written submissions only, unless either you or Hiki elect to invoke the right to an oral hearing before the Arbitrator. But whether you choose arbitration or small claims court, you agree that you will not under any circumstances commence, maintain, or participate in any class action, class arbitration, or other representative action or proceeding against Hiki.
By accepting this Agreement, you agree to the Arbitration Agreement. In doing so, BOTH YOU AND Hiki GIVE UP THE RIGHT TO GO TO COURT to assert or defend any claims between you and Hiki (except for matters that may be properly taken to a small claims court and are within such court’s jurisdiction). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING, including, without limitation, any past, pending or future class actions. If you assert a claim against Hiki outside of small claims court, your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all claims and all issues regarding the arbitrability of the dispute. The same is true for Hiki. Both you and Hiki are entitled to a fair hearing before the arbitrator. The arbitrator can generally grant the relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
The Jurisdiction and Venue provisions in Sections 16 and 17 are incorporated and are applicable to this Arbitration Agreement.
As you decide whether to agree to this Arbitration Agreement, here are some important considerations:
Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties under the Consumer Arbitration Rules of the American Arbitration Association. Arbitration does not limit or affect the legal claims you as an individual may bring against Hiki. Agreeing to arbitration will only affect where those claims may be brought and how they will be resolved.
Arbitration is generally considered to be a more rapid dispute resolution process than the judicial system, but that is not always the case. The Arbitrator will typically determine whether Hiki or you will be required to pay or split the cost of any arbitration with Hiki, based on the circumstances presented.
IMPORTANT: THERE ARE NOW, AND MAY BE IN THE FUTURE, LAWSUITS AGAINST Hiki ALLEGING CLASS AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF INCLUDING BUT NOT LIMITED TO CLASS ACTIONS DESCRIBED IN THIS SECTION 15, WHICH IF SUCCESSFUL, COULD POTENTIALLY RESULT IN SOME MONETARY OR OTHER RECOVERY TO YOU, IF YOU ELECT TO OPT OUT OF THE RETROACTIVE APPLICATION OF THIS ARBITRATION AGREEMENT. THE MERE EXISTENCE OF SUCH CLASS AND/OR REPRESENTATIVE LAWSUITS, HOWEVER, DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED, OR, EVEN IF SUCCESSFUL, THAT YOU WOULD BE ENTITLED TO ANY RECOVERY.
You will be precluded from bringing any class or representative action against Hiki, unless you timely opt out of the retroactive application of this Arbitration Agreement, and you will also be precluded from participating in any recovery resulting from any class or representative action brought against Hiki, in each case provided you are not already bound by an arbitration agreement and class action waiver previously agreed to with Hiki.
Under Rule R-9 of the AAA Consumer Arbitration Rules, either party to an arbitration involving a claim within the jurisdiction of a small claims court may choose to have the case decided by the small claims court instead. Please review Rule R-9 for more details. Nothing in this Agreement, including the right of the consumer (but not Hiki) to file a dispute directly in small claims court rather than initiating arbitration, should be construed as being inconsistent with either party’s right to invoke Rule R-9 after an arbitration has been initiated.
WHETHER TO AGREE TO THIS ARBITRATION AGREEMENT IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD TAKE CARE TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
16. Governing Law.
Except where our arbitration agreement is prohibited by law, the laws of New York, U.S.A., without regard to its conflict of laws rules, shall apply to any disputes arising out of or relating to this Agreement, the Service, or your relationship with Hiki. Notwithstanding the foregoing, the Arbitration Agreement in Section 15 above shall be governed by the Federal Arbitration Act.
17. Venue.
Except for claims that may be properly brought in a small claims court of competent jurisdiction in New York, New York, all claims arising out of or relating to this Agreement, to the Service, or to your relationship with Hiki that for whatever reason are not submitted to arbitration will be litigated exclusively in the federal or state courts of New York, New York, U.S.A. You and Hiki consent to the exercise of personal jurisdiction of courts in the State of New York and waive any claim that such courts constitute an inconvenient forum.
18. Indemnity by You.
You agree, to the extent permitted under applicable law, to indemnify, defend and hold harmless the Hiki Parties from and against any and all complaints, demands, claims, damages (actual and consequential), losses, costs, liabilities and expenses, including attorneys’ fees, due to, arising out of, or relating in any way to your access to or use of the Service (including any actions taken by a third party using your account), your Content, or your breach of this Agreement.
What about Mobile Applications and In-App Purchases?
You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of this Agreement, the more restrictive or conflicting terms and conditions in this Agreement apply.
Through our mobile applications, you may purchase (“In-App Purchase”) certain goods or features designed to enhance the performance of the Service. When you make an In-App Purchase, you are doing so through either the Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions, available at https://www.apple.com/legal/internet-services/itunes/us/terms.html and https://play.google.com/intl/en_us/about/play-terms/index.html). Hiki is not a party to any In-App Purchase.
I use the Hiki App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of the Service, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
Both you and Hiki acknowledge that this Agreement is concluded between you and Hiki only, and not with Apple, and that Apple is not responsible for the Application or the Content;
The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Service;
You will only use the Application in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
You acknowledge and agree that Hiki, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Hiki, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and Hiki acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
Both you and Hiki acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
19. Entire Agreement; Other.
This Agreement, along with the Privacy Policy and any terms disclosed to you if you purchase or have purchased additional features, products or services we offer in connection with the Service, contains the entire agreement between you and Hiki regarding your relationship with Hiki and the use of the Service. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The failure of Hiki to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You agree that your Hiki account is non-transferable and all of your rights to your account and its Content terminate upon your death. No agency, partnership, joint venture, fiduciary or other special relationship or employment is created as a result of this Agreement and you may not make any representations on behalf of or bind Hiki in any manner.