Terms & Conditions
Terms and conditions
Last updated: December, 2016
These terms of service constitute a legally binding agreement (the “Agreement”) between you and KIND, Inc. (“Kind,” “we,” “us” or “our” “The Company”) governing your use of the KIND Application, Service, Content, Products and Website (collectively, the “Services” or “the Service”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND KIND HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE ARBITRATION SECTION BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST KIND TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A USER, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN THE ARBITRATION SECTION. PLEASE READ THE ARBITRATION SECTION CAREFULLY.
By entering into this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE KIND SERVICE
By using or receiving any services supplied to you by the Company (collectively, the "Service"), and downloading, installing or using any associated application supplied by the Company, the purpose of which is to enable you to use the Service (collectively, the "Application"), you hereby expressly acknowledge and agree to be bound by the terms and conditions of the Agreement, and any future amendments and additions to this Agreement as published from time to time in the Help section of the Application.
The Company reserves the right to modify this Agreement or its policies relating to the Service or Application at any time, effective upon posting of an updated version of this Agreement on the Service or Application. It is your responsibility to review this Agreement regularly as there may be periodic revisions. Continued use of the Service or Application after any such changes shall constitute your consent to such changes.
The Company provides the technology for a user to receive tips for services provided or issue tips to service providers.
Definition of Terms
“Content”means all text, graphics, images, music, software (excluding the Application), audio, video, information layout, design, images, programs or other materials.
“Company Content”means Content that Company makes available through the Service or Application, including any Content licensed from a third party, but excluding User Content.
“User”means a person who accesses or uses the Service or Application, including you.
“User Content”means Content that a User posts, uploads, publishes, submits or transmits to be made available through the Service or Application.
“Collective Content”means, collectively, Company Content and User Content.
Fees and Other Charges.Payment Terms
All fees for usage of the Service or Application are non-refundable and due immediately. This no refund policy shall apply at all times regardless of your decision to terminate your usage, or our decision to terminate your usage, of the Service or the Application; any disruption to our Application or Service, either planned, accidental or intentional; or any other reason whatsoever. The Company may change the fees for our Service or Application, as we deem necessary for our business. It is your obligation to check back at our website periodically to confirm the applicable fees for the Service or Application.
Receivers of tips will not be charged for using the service. Payers of tips will be charged a transaction fee due to KIND as well as processing fees due to the credit card processing company. These fees shall be deducted from the amount tipped by the payer before being remitted to the receiver.
The fees payable for the Service are calculated as described below. All transactions (defined below) are to be paid in U.S. dollars.
KIND will charge 10% (ten percent) of all tip payments for each transaction. KIND reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in KIND's sole discretion.
Credit card processing services will be provided by Stripe or a similar merchant such as PayPal or Braintree. The credit card processing fee is 2.9% of the tip amount plus $0.30 cents per transaction processed.Credit Card Processor Acceptance
User hereby authorizes the Company to use Stripe or a similar credit card payment processor for handling transactions. By using the Service and the Application, payers of tips and recipients of tips shall be considered to have accepted the Merchant Services Agreement of the credit card processor and its sponsoring bank as posted at https://www.stripe.com. By accepting this Agreement, you agree: (a) that you have reviewed the MSA, and (b) that you have reviewed and agree to the MSA (c) that the Company will not be held liable for any credit card processing overcharges. You understand and agree that the Company is not a party to the Merchant Services Agreement and that you, the Processor and the Processor's sponsoring bank are the three entities legally bound by the MSA and that Company has no obligations or liability to you under the MSA. If you have questions regarding the MSA, please contact Stripe at www.Stripe.com.Agreement to Binding Arbitration Between You and KIND
You and KIND agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and KIND, and not in a court of law.
You acknowledge and agree that you and KIND are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and KIND otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and KIND each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Texas.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Texas and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.Location and Procedure.
Unless you and KIND otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and KIND submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.Arbitrator's Decision.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. KIND preserves the right to seek recovery of attorneys’ fees and expenses, to the extent provided under applicable law, if KIND prevails in arbitration.Fees.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, KIND will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).Changes.
Notwithstanding the provisions in Section I above, regarding consent to be bound by amendments to these Terms, if KIND changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing KIND written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be sent through the Help section of the KIND Application. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and KIND in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.Representations and Warranties.
By using the Application or Service, you expressly represent and warrant that you have the right, authority and capacity to enter into this Agreement, and agree to be bound by the terms and conditions of this Agreement. If you live in a jurisdiction that restricts the use of the Service because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the Application and Service. Without limiting the foregoing, the Service and Application is not available to children (persons under the age of 18). By using the Application or Service, you represent and warrant that you are at least 18 years old. Your use of the Service and/or Application is solely for your personal use. You may not authorize others to use your user credentials, and you may not assign or otherwise transfer your user account to any other person or entity. When using the Application or Service you agree to comply with all applicable laws.
You may only access the Service using authorized means. You agree that it is your responsibility to download the correct version of the Application for your device. The Company is not liable if you do not have a compatible device or if you have downloaded the wrong version of the Application for your device. The Company reserves the right to terminate this Agreement should you be using the Service or Application with an incompatible or unauthorized device.
By using the Application or the Service, you agree that you will abide by all terms and conditions applicable to the Application and Service.
- You will only use the Service or Application for lawful purposes; you will not use the Services for transmitting or storing unlawful material or for fraudulent purposes.
- You will not use the Service or Application to harass, disturb, annoy, or inconvenient other users or non-users of the application.
- You will not impair the proper operation of the network.
- You will not try to harm the Service or Application in any way whatsoever.
- You will not copy, or distribute the Application or Collective Content without written permission from the Company.
- You will only use the Application and Service for your own personal use and will not resell or transfer either to a third party.
- You will keep secure and confidential your user credentials, including any account password or any identification we provide you which allows access to the Service. You will not share your access information with others.
- You will provide us with whatever proof of identity we may reasonably request.
- You will only use an access point or 3G data account (AP) which you are authorized to use.
- You are aware that when requesting services by SMS, standard messaging charges will apply.
Subject to your compliance with these Terms, KIND grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by KIND and KIND's licensors.Restrictions.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by KIND; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.Third Party Services and Content.
The Services and all rights therein are and shall remain KIND's property or the property of KIND's licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner KIND's company names, logos, product and service names, trademarks or services marks or those of KIND's licensors.
Access and Use of the ServicesUser Accounts.
In order to use most aspects of the Application and Service, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to KIND certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by KIND. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by KIND in writing, you may only possess one Account.
You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Service, and you may only access or use the Service for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Service cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Service, and you agree that you may be denied access to or use of the Service if you refuse to provide proof of identity.
You agree that you will abide by the applicable copyright law. You agree that the Company can exercise its right to terminate your access and use of the Service and the Application if you infringe on the rights of the copyright holder. All Company Content is the property of Company and its affiliated companies or licensors and is protected by copyright and other intellectual property laws.Intellectual Property Ownership
As between the User and the Company, the Company (and/or its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Application and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by any User or any other party relating to the Application or the Service. The rights granted under this Agreement are not a sale and Company does not convey to User any rights of ownership in, or related to, the Application or the Service, or any intellectual property rights owned by the Company. The Company name and logo, and the product names associated with the Application and Service, are trademarks of the Company or third parties, and no right or license is granted to use them.Text Messaging and Telephone Calls
You agree that KIND may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with a KIND account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. You also understand that you may opt out of receiving text messages from KIND at any time, either by texting the word “STOP” as a reply to the message you received from the mobile device that is receiving the messages, or by contacting help at KIND. If you do not choose to opt out, KIND may contact you as outlined in its User Privacy Statement, located within the Help section of the Application. Message and data rates may apply to SMS messages.User Provided Content.
At KIND’s sole discretion, KIND may permit you from time to time to submit, upload, publish or otherwise make available to KIND through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to KIND, you grant KIND a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and KIND's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant KIND the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor KIND's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by KIND in its sole discretion, whether or not such material may be protected by law. KIND may, but shall not be obligated to, review, monitor, or remove User Content, at KIND's sole discretion and at any time and for any reason, without notice to you.
You are responsible for obtaining the data network access necessary to use the Service. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Service and Application and any updates thereto. KIND does not guarantee that the Service, or any portion thereof, will function on any particular hardware or devices. In addition, the Service may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.Amendment of Terms of Services
KIND may amend the Terms of Service from time to time. Amendments will be effective upon KIND's posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If KIND changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing KIND written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be sent through the Help section of the KIND Application. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).Privacy
KIND’s collection and use of personal information in connection with the Services is described in KIND's Privacy Statement located in the Help section of the KIND Application.
Disclaimers; Limitation of Liability; Indemnity.DISCLAIMER.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." KIND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, KIND MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. KIND DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.LIMITATION OF LIABILITY.
KIND SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF KIND, EVEN IF KIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
KIND SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF KIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KIND SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND KIND'S REASONABLE CONTROL.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, KIND’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON KIND’S CHOICE OF LAW PROVISION SET FORTH BELOW.
You agree to indemnify and hold KIND and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) KIND's use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.
Other ProvisionsChoice of Law.
These Terms are governed by and construed in accordance with the laws of the State of Texas, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Texans to assert claims under Texas law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Texas law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Texas law to you if you do not otherwise reside in Texas. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.Notice.
KIND may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone).General.
You may not assign these Terms without KIND's prior written approval. KIND may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of KIND's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, KIND or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. KIND's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by KIND in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.