IN ORDER TO USE THE SERVICE, YOU MUST FIRST AGREE TO THESE TERMS. YOU MAY NOT USE THE SERVICE IF YOU DO NOT ACCEPT THESE TERMS. YOU CAN ACCEPT THESE TERMS BY CLICKING TO ACCEPT OR AGREE TO THESE TERMS, WHERE THIS OPTION IS MADE AVAILABLE TO YOU BY US IN THE USER INTERFACE FOR ANY SERVICE; OR BY ACTUALLY USING THE SERVICE. YOU UNDERSTAND AND AGREE THAT WE WILL TREAT YOUR USE OF THE SERVICE AS ACCEPTANCE OF THESE TERMS FROM THAT POINT ONWARDS.
1. INTRODUCTION. This “Terms of Service” (referred to below as this “TOS”) has been written to describe the conditions under we make the Kind Eye for Business service (the “Service”) available to you through our websites and mobile applications. In this TOS, “we”, “us” and “Kind Eye” means Kind Eye, Inc., a Massachusetts corporation, and “you” means the person using the Service. This TOS discusses important limitations about the way you may use and rely upon materials you find on the Service. Read this TOS carefully. By using the Service, you will be deemed to have accepted them. If you do not accept this TOS or if your right to use the Service has been terminated, you may not use the Service.
The Service provides a platform where providers of consumer products (“Providers”) who are looking for retailers to sell their products (such catalogue of product, a “Brand”) may be matched with potential retailers who desire to sell consumer products (“Retailers”). Providers and Retailers are sometimes referred to herein collectively as “Users”. Each User will register with us and create a User account that enables you to access the Service.
2. SERVICE; CONTENT; MARKS. Except with respect to the Section labeled “Retailer Provisions” which is applicable only to Retailers and the section labelled “Provider Provisions” which is applicable only to Providers, this TOS applies to all Users. “Content” includes the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service, including links to and materials on third party websites. The Content on the Service, and the trademarks, service marks and logos (“Marks”) on the Service, are owned by or licensed to Kind Eye or other third parties, subject to copyright and other intellectual property rights under the law. The software used to provide the Service, and all creative work and intellectual property developed or created by Kind Eye during the course of providing support, implementation, consulting, training or other professional services, remains owned by Kind Eye.
By becoming a User, you expressly consent and agree to accept and receive communications from us, including via e-mail you provided to us. Retailers also consent to receiving communications from Providers.
3. REGISTRATION REQUIREMENTS; AGE LIMITATION. By requesting to use, registering to use and/or using the Service, you represent and warrant that you have the right, authority and capacity to enter into this TOS and you commit to abide by all of the TOS and conditions hereof.
No person under the age of 13 may use the Service. Further, no individual under the age of 18 years (“Minor”) may register as a Retailer or Employer, and by so registering, you certify to us that you are not a Minor.
You hereby authorize us to verify your representations and warranties herein, and you acknowledge that we reserve the right, but not the obligation, to verify such representations and warranties, and to take action we deem appropriate in our sole discretion, including but not limited to terminating your right to use the Service, should we determine, in our sole opinion, that you have violated any representation or warranty or any other provision of this TOS.
4. CONTENT PROVIDED TO YOU. Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under this TOS. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of Kind Eye or the respective licensors of the Content. Kind Eye and its licensors reserve all rights not expressly granted in and to the Service and the Content.
You understand that when using the Service, you will be exposed to Content from a variety of sources, including from Providers and Retailers (as applicable), and that Kind Eye is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Kind Eye with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless Kind Eye, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by us, including any ratings, reviews or references by or about Retailers or Providers, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted on the Service or otherwise disseminated by third parties. We reserve the right, but we have no obligation, to monitor the materials posted in the public areas of the Service and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
5. CONTENT PROVIDED BY YOU. You may submit Content to the Service. You understand that Kind Eye does not guarantee any confidentiality with respect to any Content you submit.
You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to Kind Eye all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to this TOS.
You retain all of your ownership rights in your Content. However, by submitting Content to Kind Eye, you hereby grant Kind Eye a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Kind Eye’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under this TOS. Certain Content you submit to the Service for the purpose of promoting Brands may be removed by you through functionality in the service, in which case above licenses granted by you for such materials terminate within a commercially reasonable time after you remove or delete such materials from the Service. You understand and agree, however, that Kind Eye may retain, but not display, distribute, or perform, server copies of these materials that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Kind Eye all of the license rights granted herein.
6. RESTRICTION ON USE. You agree that you will not use the Service to:
(b) Proprietary Rights and Improper Disclosure. Transmit, access or communicate any data that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including us, or remove any proprietary notices from the Service; or more generally, transmit, access or communicate any data that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); or transmit or communicate any data or content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, or otherwise objectionable.
(c) Viruses and other Disruptions. Transmit or communicate any data that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or interfere with or disrupt the Service or our operation of related systems; or modify, delete or damage any information contained on the computer of any user.
(d) Misrepresentation; Spoofing. Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity, or forge headers or otherwise manipulate identifiers in order to disguise the origin of any data transmitted to other users, including intentionally make available “spoofed” files or data, or files or data with any type of information designed to misidentify the actual content of a file or which is intended to mislead the recipient of the file.
(e) Compromise Security Measures. Take any steps to interfere with or in any manner compromise any security measures with respect to the Service or any data or file transmitted, processed or stored on or through the Service; or access our Service by any means other than through the interfaces we provide for such use.
(f) Compliance With Laws. Intentionally or unintentionally violate any applicable local, state, national or international law, including any rules and regulations of any securities exchange, any laws, rules or regulations applicable to bulk or commercial email, including the CAN-SPAM Act of 2003, any rules, regulations, requirements, procedures or policies in force from time to time relating to the Service, and any export or re-export laws, rules and regulations.
(g) Harm Others. Harm Minors in any way; “stalk” or otherwise harass other persons. Kind Eye reserves the right to decide whether Content violates this TOS for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. Kind Eye may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user’s right to use the Service for submitting such material in violation of this TOS.
7. RETAILER PROVISIONS. By using the Service, you authorize Kind Eye to provide your name, biographical and experience information, including address, contact information (e-mail, phone number or social media address), picture (if provided) to Providers that you identify as potential providers of products. We will not provide Providers with any personally identifiable information (social security number, financial or credit card information, phone number, etc.)
As part of the Service, we provide a platform for Providers to post information concerning their Brands. We do not verify such information and do not warrant that such product descriptions are accurate, complete, reliable, current or error free. Providers may post prices for their products, including wholesale and recommended retail prices. We cannot and do not warrant that any products presented on the Service will be available at such price. We disclaim any liability or responsibility with respect to any Brand or product presented via the Service. If any Brand or product offered via the Service is not as described, available in the quantity desired or at the price presented, your sole remedy is against the applicable Provider.
KIND EYE SPECIFICALLY DISCLAIMS ANY WARRANTY WITH RESPECT TO BRANDS OR PRODUCTS PRESENTED VIA THE SERVICE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Any agreement to purchase products must be made directly with the Provider, and any liability or loss you or your customers suffer associated with any products presented via the Service shall be the sole responsibility of the Provider, whether resulting from tort, contract violation or product liability.
Kind Eye does not currently charge Retailers to access or use the Service, however we may, at any point and in our discretion, elect to begin charging fees for use of various portions of the Service and/or for different levels of subscription or account by Retailers.
You are responsible for payment of all federal, state and local taxes and payroll taxes applicable to you with respect to any purchases made from a Provider through the use of the Services. You agree to indemnify and hold us harmless from any damages we may incur if you fail to pay your taxes when due.
KIND EYE DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR COSTS, DAMAGES, EXPENSES OR OTHER LIABILITIES INCURRED AS A RESULT OF THE ACTIONS, INACTIONS OR FALSE STATEMENTS OF A PROVIDER. Kind Eye is not responsible for the conduct of any Provider. You are solely responsible for your interactions with any Provider.
8. PROVIDER PROVISIONS. Providers using the service will be required to purchase a subscription to the Service (a “Subscription”). By purchasing such Subscription, you are consenting to act in accordance with the terms and conditions set forth for Providers on the Site and terms of contained in this TOS. If you breach any such terms in any way, we may terminate, at our discretion, your right to use the Service without refund. Providers who have not purchased a Subscription are restricted in such Provider’s use of the Service.
Providers shall pay to Kind Eye (and not to the Retailer) a fee as set forth in the Service for each Brand to be presented via the Service (the “Fee”). Fees are due immediately upon ordering a Subscription. Subscriptions renew automatically on the anniversary of your initial purchase of a Subscription unless you notify us of your desire to deactivate your Subscription by contacting us via our contact page at https://business.kind-eye.com/contact/. As we are a matching service, we do not provide refunds of any kind, for any reason. If you deactivate your Subscription, we will not collect any further Fees, but will not provide a refund or rebate of any Fees already collected. You may reactivate your Subscription if the term of your Subscription has not yet expired in order to promote the same Brand and sell products associated with such Brand. You may not use your Subscription to promote multiple Brands. We reserve the right to revise the Fees at our discretion. Reduction of our annual fee shall not result in any refund or rebate to you. If you purchased your subscription at a reduced price, you will be charged the full price applicable at the time of your purchase upon the renewal of your Subscription, unless we decide to charge you less, at our discretion. All Fees are processed through a third-party payment processing service. Kind Eye is not responsible for the actions of such third-party servicer, and may change such servicer at any time.
Providers, by purchasing a Subscription, warrant, covenant and agree to the following:
(a) You are a provider of personal care products that meet our standards, available for retail sale, properly licensed by the applicable governmental authorities for the provision of such products to the public.
(b) You are using the Services in order to locate Retailers for the sale of products and the promotion of a Brand.
(c) You will contact Retailers only for the purpose of distributing products and not for any other purpose.
(d) You are an equal opportunity employer and do not discriminate on the basis of sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity or pregnancy.
(e) Information you provide on the Service is accurate, complete, up-to-date within a commercially reasonable time, and not misleading or misrepresentative of the quality, efficacy, or usefulness of your products.
(f) You will not harass, menace, abuse, assault, or mistreat any Retailer, whether selected as a retailer of your products or otherwise, before, after or during your use of the Services.
(g) You will comply with all applicable laws, rules and regulations associated with your products and shall be solely responsible for any violations of such provisions.
You acknowledge and agree that you are responsible for all taxes, fees, and other charges associated with sale and resale of your products and the services you provide (including all sales, excise, value added or other use taxes).
You acknowledge and agree that you shall be fully responsible for any and all damages, injuries, losses or other liabilities caused by, related to or associated with your products, services or Brand and you agree to indemnify and hold us harmless against any losses, damages, costs, fines, penalties or other liabilities we may incur related to your use of the Services.
WE ARE NOT LIABLE AND ACCEPT NO RESPONSIBILITY FOR THE ACTIONS, INACTIONS OR OMISSIONS OF THE RETAILERS CONTACTED BY YOU TO SELL YOUR PRODUCTS OR PROMOTE YOUR BRAND. WE ARE NOT RESPONSIBLE FOR ANY COSTS, DAMAGES, EXPENSES OR LIABILITIES INCURRED BY YOU (A) DUE TO AN RETAILER’S FAILURE TO SELL YOUR PRODUCTS OR PROMOTE YOUR BRAND, OR (B) ANY LOSS OF CUSTOMERS, PROFITS, BUSINESS, GOODWILL OR OTHER REPUTATIONAL DAMAGE CAUSED BY THE ACTIONS OR INACTIONS OF A RETAILER. Your sole remedy for the failure of an Retailer to provide adequate services is with such Retailer.
Violation of any terms contained herein, as determined at our discretion, shall be grounds for termination of the your right to use the Services, without refund or rebate of any Fees paid.
10. COPYRIGHT AND TRADE MARK POLICIES. We respect the intellectual property of others, and we ask our Users to do the same. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of Users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located on the service;
(d) your address, telephone number, and email address;
(e) a 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;
(f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Our Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
Kind Eye, Inc., PO Box 301787, Jamaica Plain, MA 02130; Attn: Copyright Agent
By email: [email protected]
11. INDEMNIFICATION. YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND US AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, AND EMPLOYEES, AT YOUR EXPENSE, AGAINST ANY AND ALL THIRD PARTY CLAIMS OR DEMANDS, ACTIONS, PROCEEDINGS AND SUITS AND ALL RELATED LIABILITIES, DAMAGES, SETTLEMENTS, PENALTIES, FINES COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND OTHER DISPUTE RESOLUTION EXPENSES) INCURRED BY US, DUE TO OR ARISING OUT OF DATA OR CONTENT THAT YOU SUBMIT, POST TO, TRANSMIT OR COMMUNICATE THROUGH THE SERVICE, YOUR USE OR MISUSE OF THE SERVICE, YOUR CONNECTION TO OTHER USERS, YOUR VIOLATION OF THIS TERS OF SERVICE, OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER.
12. DISCLAIMERS AND LIMITATION OF LIABILITY. THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. Applicable law may not allow the exclusion of implied warranties, so this exclusion may not apply to you. IN NO EVENT WILL WE, OUR SUPPLIERS, OR OTHER THIRD PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
13. RELEASE. In the event that you have a dispute with one or more Users, you agree to release us (including our affiliates and each of our respective officers, directors, employees, agents, shareholders, and suppliers) from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes with other Users or to your use of the Services or filling of a Brand. Furthermore, you expressly waive any rights you may have under California Civil Code Section 1542 (or analogous laws of other states), which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” We reserve the right, but have no obligation, to monitor disputes between you and other Users.
14. CHANGES TO THE SERVICE; TERMINATION. Certain provisions of this TOS may be superseded by expressly designated legal notices or terms located on particular parts of the Service. We may, at any time, modify the Service, or stop (permanently or temporarily) providing the Service (or any features within the Service) to you at our sole discretion and for any reason, and without notice, without liability to you or any person, including without limitation if we believe you have breached or may breach any provision of this TOS; or if the provision of the Service to you is, in our opinion, no longer commercially viable. Upon any such termination, the provisions of this TOS continue in effect but you will no longer be able to use the Service; termination shall not relieve you for liability for breach occurring prior to termination.
15. AMENDMENT AND UPDATING OF THIS TOS; ELECTRONIC SIGNATURES. We may desire to make changes to this TOS from time to time to update it, for example to add references to different products and services, or provide for payment for the use of the Service.: We may specify amended or updated terms that apply to the use of Service after the effective date of such amendment or update, and we will make a new copy of this TOS available to you and may require you to accept it as a condition to the continued provision of the Service to you. In addition, the continued use of the Service after receipt of such amended terms shall constitute your agreement to such amended terms. In addition, any modification, amendment, or waiver of any provision of this TOS shall be effective if in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, you hereby agree to the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, policies and records of transactions initiated or completed through the Service. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
16. GENERAL. We administer the Service from our offices in the Commonwealth of Massachusetts, USA. We make no representation that the Service is appropriate or available for use outside the United States, and access to the Service from territories where its content is illegal is prohibited. You may not use or export or re-export the Service or materials found thereon or any copy or adaptation in violation of any applicable laws or regulations including without limitation U.S. export laws and regulations. If you choose to access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with applicable local laws. This TOS will be governed by and construed in accordance with the laws of the State of Massachusetts, without giving effect to any principles of conflicts of laws. You and we agree to submit to the exclusive jurisdiction of the United States District Court for the District of Massachusetts, and any state courts located within such district, to resolve any legal matter arising from this TOS. Notwithstanding this, you agree that we shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
17. CONTACTING US. If you have any questions about this TOS, or our privacy practices, or the Service you may contact us by visiting the following web page: https://business.kind-eye.com/contact/.