TERMS OF SERVICE

PLEASE NOTE: THIS AGREEMENT REQUIRES YOU TO SUBMIT MOST DISPUTES WITH KEWL AI TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. YOU MAY OPT OUT OF THESE PROVISIONS IN SOME CIRCUMSTANCES AS DETAILED BELOW. READ SECTION 15 CAREFULLY, AS THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS IT CONTAINS AFFECT YOUR RIGHTS.

1. Acceptance of Terms of Service

These Terms of Service (“Terms”) are a binding legal agreement between you and Kewl AI, Inc. (“Kewl AI,” “we,”, “our,” or “us”). These Terms govern your access to and use of any website (including www.hii5.app, www.hii5.ai, www.kewl.ai), mobile application we provide (including the “hii5” app), and any other online or offline services we provide in which we link or otherwise reference these Terms (collectively, the “Services”).

By using or otherwise accessing the Services or clicking to accept or agree to these Terms, you (1) accept and agree these Terms; (2) acknowledge that the collection, use, disclosure and other handling of information from the Services shall be as described in our Privacy Policy; and (3) agree to comply with all rules, policies, and disclaimers posted on the Services or about which you are notified.

All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Services in any manner, and each of your heirs, assigns, and successors. If you use the Services on behalf of an entity or another individual, you represent and warrant that you have the authority to bind that entity or individual, your acceptance of the Terms will be deemed an acceptance by that entity or individual, and “you” and ”your” herein shall refer to that entity, its directors, officers, employees, and agents.

PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE SERVICES.

2. The Kewl AI App

Our Services include our website and the “hii5” mobile application. The hii5 mobile application allows you to communicate with friends, family, and other contacts through a platform powered by artificial technology. Through the Services, you may upload or otherwise submit content (collectively and individually, “User Content”), such as text, photos, videos, comments, and reactions. We may also allow you to access features powered by artificial intelligence, such as features that analyze User Content to summarize and characterize content, and suggest responses to User Content, such as recommended comments and reactions.

3. Eligibility

Only individuals who are at least 13 years of age and have the right, authority, and capacity to enter into these Terms, either on behalf of yourself or the entity that you represent, are permitted to access the Services. If you are 13 years of age, but under the legal age of majority, your parent or legal guardian must consent to these Terms and Kewl AI’s Privacy Policy, and affirm that they accept these Terms on behalf of, and bear all legal and financial responsibility and liability for the actions of, any child between age 13 and the legal age of majority, and expressly ratify and confirm any acts of any such child and all users of the account.

4. Account Registration

You may be required to create an account to access certain parts of the Services (each, an “Account”). To register for an Account, you may be required to provide us with certain information, such as a name, username, and phone number. By creating an Account, you represent and warrant that any information submitted to create your Account is accurate, current, and complete information, and you further agree to update the information in your Account to keep it accurate, current, and complete. 

We may require that you provide us with a mobile phone number to create an Account. By providing your mobile phone number, you agree to receive SMS, MMS, or other types of telephonic messages from us regarding your Account, such as to verify your phone number. Message and data rates may apply, and you are solely responsible for such mobile fees you may incur.

You are solely responsible for safeguarding your Account credentials. You are solely responsible for all activity that occurs on your Account, and we may assume that any communications, including User Content we receive under your Account have been made by you. You must notify Kewl AI immediately of any breach of security or unauthorized use of your Account. Kewl AI will not be liable and you may be liable for losses, damages, liability, expenses, and attorney’s fees incurred by Kewl AI or a third party arising from someone else using your Account due to your conduct regardless of whether you have notified us of such unauthorized use. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account.

If Kewl AI has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services. We also reserve the right to disable or close any Account at any time and for any reason or for no reason.

5. Proprietary Rights and License

Subject to your compliance with these Terms and any other provisions governing your use of the Services, we grant you a non-transferable, non-exclusive, revocable, limited license to access and use the Services. Your use of the Services is at your own risk.

All right, title, and interest in and to the Services are and will remain the exclusive property of Kewl AI and its licensors. All materials therein, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and all intellectual property rights related thereto, are the exclusive property of Kewl AI and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Kewl AI and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Kewl AI and such others.

6. User Content

   1. License to User Content

When you use the Services, you may provide us with User Content. You grant us a worldwide, non-exclusive, irrevocable, royalty-free, sublicenseable, and perpetual license to store, reproduce, use, publish, publicly display, copy, modify, disclose, and create derivative works of your User Content in any media now known or not currently known to (a) operate, provide, improve, troubleshoot, and debug our Services, including any machine learning or algorithms informing the Services; (b) protect the Services; (c) customize the Services; (d) develop or improve new products or features; (e) as directed by you; and (f) as otherwise set forth in our Privacy Policy. 

Where you submit User Content, you will maintain any ownership interest you have in and to any such User Content. You are solely responsible for your User Content, and you represent and warrant that you have all rights necessary to provide us with User Content and for us to use, disclose, or otherwise process your User Content in accordance with your Account choices and our Privacy Policy. You acknowledge and agree that Kewl AI may or may not, in its sole discretion, pre-screen or otherwise monitor User Content before or after they are uploaded into the Services, but has no obligation to do so. We reserve the right in our sole discretion, but do not assume the obligation, to reject, move, edit, or remove any User Content, including any User Content that violates these Terms or is otherwise objectionable.

2. Responsibility for User Content

You understand that when using the Services, you may be exposed to User Content from a variety of sources, including User Content that you may consider offensive or objectionable. Kewl AI is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content, and such User Content is not the responsibility of Kewl AI. Any User Content is solely the responsibility of the person or entity submitting such User Content, and we expressly disclaim any and all liability in connection with such User Content. You understand and agree we are not responsible or liable for the deletion of, or the failure to store or integrate into the Services, any User Content.

Users may report User Content or user behavior that violates our Terms by using reporting tools made available in the Services. We will review reports and retain sole discretion on whether to take further action on such reports.

3. Prohibition on Retaining User Content

You further understand that we have no obligation to maintain any User Content you submit. One of the features of hii5 is that chat communications made through hii5 between two or more users (“Chats”) will be inaccessible after a set period of time as described in the app (the “Chat Availability Period”), and will thereafter be purged from our servers. You agree you will only access Chats during the Chat Availability Period, and strictly through the hii5 mobile app. You agree you will not export, extract, screenshot, retain, copy, cut, or otherwise access any Chats outside of the hii5 mobile app. You further agree you will not retain any Chats, including by circumventing our tools to copy, screenshot, or otherwise retain Chats. Failure to comply with these restrictions is a material breach of these Terms. We reserve the right to report any violations of this rule to authorities.

While we make reasonable efforts to prevent users from extracting, copying, or otherwise retaining Chats, we cannot guarantee that (1) users will comply with our rules; or (2) that our efforts to prevent extracting Chats from hii5 are full-proof. We disclaim all liability for misconduct by users, including for violation of this Section 6(c).

4. AI Tools

We may enable you to use tools powered by artificial intelligence to help you generate User Content (“AI Tools”). These AI Tools will review inputs such as text, images, videos, audio files, and other User Content to generate suggested reactions, content, and other responses. You remain solely responsible for determining whether to send such suggested responses, and content you submit using AI Tools will remain your User Content. AI Tools may not be appropriate and may be inaccurate, offensive, infringing, and objectionable. Kewl AI provides the AI Tools as a convenience to you, and they are provided to you on an as-is basis with no representations or warranties of any kind, whether express or implied. 

7. Other Rules and Prohibitions

We want our users to enjoy the Services, including making and maintaining social connections with each other. To protect us, our users, and the public, we require you follow certain rules. You agree you will not use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by Kewl AI. Without limitation, you agree not to:

• Create multiple Accounts or misrepresent your identity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services;

• Engage in any conduct that is fraudulent, inaccurate, infringing, libelous, defamatory, abusive, offensive, obscene, pornographic or otherwise violates any law or right of Kewl AI, its users, or any third party, including privacy rights, copyrights, or other intellectual property rights;

• Export, extract, copy, or access Chats outside of the hii5 mobile app;

• Retain Chats beyond the Chat Availability Period;

• Violate any federal, state, or local law, statute, ordinance, regulation, or ethical code;

• Engage in any behavior that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing including, without limitation, submitting defamatory User Content;

• Submit User Content or otherwise provide Kewl AI with any data containing any viruses, Trojan horses, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

• Remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Services or on any materials printed or copied from the Services;

• Scrape, access, monitor, index, frame, link, or copy any content on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or using any method of access other than manually accessing the publicly available portions of the Services through a browser or accessing the Services through any approved mobile application, application programming interface, or client application;

• Decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Services;

• Probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures we may use to prevent or restrict access to the Services or use of the Services or the content therein;

• Attack, or attempt to attack the Services via a denial-of-service attack or a distributed denial-of service attack;

• Violate the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services;

• Engage in any activity that could cause us to violate any applicable law, statute, ordinance, or regulation;

• Resell or make any commercial use of our system or the content on the Services without our prior written consent;

• Use the Services in a way that violates or facilitates violations of these Terms, or any other agreement or guidelines that govern use of the Services; 

• Transfer any rights granted to you under these Terms;

• Access the Services or content to build a similar or competitive website, product, or service; or

• Attempt to directly or indirectly undertake any of the foregoing.

Kewl AI has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Kewl AI may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.

8. Feedback

By sending us any feedback, comments, questions, or suggestions concerning Kewl AI, the Services, or us (collectively, “Feedback”) you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. 

By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against Kewl AI and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Account, these Terms, the Services, or your participation in the Services.

9.Links to Third Party Sites and Services

The Services, including User Content, may contain links or otherwise direct you to websites, applications, products or services operated by other parties (“Third Party Services”). If there are Third Party Services or other resources linked on these Services, either by Kewl AI or a third party such as a user of the Services, those links are provided only for the convenience of our users. We have no control over the contents of those Third Party Services or resources, and therefore cannot accept responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any Third Party Services linked to or otherwise referenced on the Services, you do so entirely at your own risk and subject to the terms and conditions of use for that Third Party Service.

10. Modification of the Terms or the Services

Except for Section 15 providing for binding arbitration and waiver of class action rights, Kewl AI reserves the right, at its reasonable and sole discretion, to modify or replace these Terms at any time. You are responsible for reviewing and becoming familiar with any such modifications. If we determine a revision to the Terms, in our sole discretion, is material, we will notify you as required by law. Use of the Services by you after any modification to the Terms constitutes your acceptance of the Terms as modified. If you do not accept the changes, you must discontinue using the Services.

Kewl AI reserves the right at any time to modify, suspend, discontinue, or terminate, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that Kewl AI shall not be liable to you for any modification, suspension, or discontinuance of the Services.

11. Term and Termination

The agreement between you and Kewl AI reflected by these Terms is effective when you access the Services (for example to create an Account) and remains in effect until either you or we terminate the agreement in accordance with these Terms.

You may terminate your Account by emailing optout@kewl.ai. Please be advised that if you terminate your Account, you will lose access to all of your User Content. Terminating your Account does not mean that your User Content will be deleted immediately, as other users with whom you’ve communicated with through the Services will retain access to User Content during the applicable Chat Availability Period.

We may modify, discontinue any portion or all of the Services at any time for any reason. We may also restrict, suspend, or terminate any Account for any reason at any time.

Sections [TBD] of these Terms, and any other provisions that are necessary to effectuate those sections, shall survive termination.

12. Indemnity and Release 

You agree to release and to indemnify, defend, and hold harmless Kewl AI and its parents, subsidiaries, affiliates, and agents, as well as the officers, directors, employees, shareholders, and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys’ fees and court costs), claims, actions, inquiries, or investigations of any kind whatsoever arising out of or resulting from your violation of these Terms, and any of your acts or omissions that implicate publicity rights, defamation, or invasion of privacy. Kewl AI reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Kewl AI in the defense of such matter.

In the event that you have a dispute with one or more other users, you release Kewl AI, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the Services. If you are a California resident, you waive California Civil Code Section 1542, which provides:

A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.

13. Disclaimers

KEWL AI HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE SERVICES AND CONTENT AVAILABLE IN THE SERVICES, INCLUDING USER CONTENT AND INSIGHTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER KEWL AI NOR ANY PERSON ASSOCIATED WITH KEWL AI MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER KEWL AI NOR ANYONE ASSOCIATED WITH KEWL AI REPRESENTS OR WARRANTS THAT THE SERVICES OR CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. 

YOU ARE SOLELY RESPONSIBLE FOR THE ACTIONS TAKEN IN YOUR ACCOUNT, INCLUDING ANY SHARING OF USER CONTENT IN YOUR ACCOUNT WITH OTHER USERS OR THIRD PARTIES. KEWL AI MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES, AND KEWL AI EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.

YOU WAIVE AND HOLD HARMLESS KEWL AI FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY KEWL AI DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER KEWL AI OR LAW ENFORCEMENT AUTHORITIES.

We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your access to or use of the Services or any third-party content or websites accessed through, or in any way in conjunction with, the Services.

SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

14. Limitation of Liability

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL KEWL AI, ITS PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, JOINT VENTURERS, CONSULTANTS, SUCCESSORS, OR ASSIGNS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS LIMITATION OF LIABILITY APPLIES TO ANY ALLEGED OR ACTUAL LOSSES RESULTING FROM: (a) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (b) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS; (c) ANY CONTENT OBTAINED FROM THE SERVICES, INCLUDING WITHOUT LIMITATION USER CONTENT OR INSIGHTS; AND (d) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR USER CONTENT. 

THE SERVICES, INCLUDING THE CONTENT AVAILABLE WITHIN THE SERVICES, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. THE LIMITATIONS ON DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN AND ARE MATERIAL TO KEWL AI’S DECISION TO ENTER INTO THE AGREEMENT BETWEEN KEWL AI AND YOU. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.

15. Dispute Resolution and Class Action Waiver

    1. Scope

This Dispute Resolution and Class Action Waiver section applies to any and all disputes between you and Kewl AI. “Disputes” means all disagreements between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, these Terms, or your use of the Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory (each a “Dispute” and collectively “Disputes”).

2. Informal Dispute Resolution

Most Disputes can be resolved informally. If you have an issue with the services or Kewl AI, you agree that you will reach out to us and use good faith efforts to settle the Dispute informally through negotiation before initiating a lawsuit or arbitration. This requires emailing contact@kewl.ai a written notice (“Written Notice”) about your issue, which must include: (1) your name; (2) the email address or phone number associated with your Kewl AI account; (3) a detailed description of the issue; and (4) how you’d like to resolve it. This notice must be provided on an individual basis and you, along with your counsel if you have one, must be available personally for a telephone or videoconference to resolve your claims, unless Kewl AI states in writing that you are not personally required to attend.

If the dispute is not resolved within 60 days after receipt of the Written Notice, you and Kewl AI agree to resolve any remaining dispute through further informal discussions or one of the formal dispute resolution provisions below.

This Informal Dispute Resolution process, including your personal participation in the meet and confer is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. You and Kewl AI (the “Parties”) agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the Parties engage in this Informal Dispute Resolution process. The Parties further agree that whether a complaining Party has satisfied the requirements of this Informal Dispute Resolution process, including whether a Written Notice was properly submitted or contained all required information, is an issue that can be decided by a court as a prerequisite to arbitration.

If you reside in the European Union, you may also be entitled to submit your complaint to the European Commission’s Online Dispute Resolution (ODR) Platform or the Out-of-Court Dispute Settlement (“OCDS”) mechanism under DSA Article 21. ODR allows EU consumers to resolve disputes related to the online purchases of goods and services without going to court. Note that a submission to the ODR or via the OCDS mechanism alone, without submitting a Written Notice to contact@kewl.ai, will not toll the applicable statutes of limitations or other deadlines.

3. Governing Law, Jurisdiction, Class Action Waiver, and Time Limitation

EXCEPT WHERE PROHIBITED BY APPLICABLE LAW:

Choice of Law. These terms and all disputes between you and Kewl AI, whether in arbitration or court (if a Dispute is non-arbitrable under these terms for any other reason), shall be governed by the law of the United States and the laws of Delaware, without regard to conflicts of law provisions—in other words, any federal law or Delaware law, including any conflict of law principle, that would provide for the application of the laws of another jurisdiction other than the United States or Delaware shall not apply.

Venue and Jurisdiction. By agreeing to these terms, you and Kewl AI agree that to the extent any Dispute is not arbitrable—including any arbitration-related litigation, such as a motion to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on an arbitration award—the Dispute must be resolved exclusively by a court of competent jurisdiction, federal or state (including small claims court), located in the County of San Francisco, California, and no other court. You and Kewl AI consent to the exercise of personal jurisdiction over you by such courts with respect to any such Dispute.

If you are a consumer residing in the European Union, this clause and these terms in general do not affect any mandatory consumer rights you may have under your local law, and all disputes arising in connection with the services and/or these terms shall be submitted to the exclusive jurisdiction of the court of Amsterdam, the Netherlands or, if you are a consumer, to a court closer to your domicile if in an EU Member State.

Class Action Waiver.  You agree that any Dispute between you and Kewl AI that for any reason is not subject to the “Agreement to Arbitrate” section below may only be pursued by you on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, collective, or representative action. To the extent a Dispute between you and Kewl AI is subject to arbitration, the provisions set forth in the “Agreement to Arbitrate” apply, including those regarding class arbitration, private attorney general arbitration, arbitration involving joint or consolidated claims, and batching.

Time for Initiating a Claim. No action, regardless of form, arising out of or relating to a Dispute may be brought by either Party more than one (1) year after the cause of action has accrued.

‍IF YOU’RE A U.S. OR CANADIAN RESIDENT YOU ALSO AGREE TO THE FOLLOWING “AGREEMENT TO ARBITRATE” WHICH CONTAINS MANDATORY ARBITRATION PROVISIONS.  PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT:

4. Agreement to Arbitrate

The “Agreement to Arbitrate” includes all provisions following this heading, through and including the paragraph titled “Changes to this Agreement to Arbitrate.”

Only after engaging in the Informal Dispute Resolution process set forth in these Terms, and only after those efforts fail to resolve the Dispute, then either Party may initiate binding arbitration as the sole means to resolve Disputes, subject to the terms of this Agreement to Arbitrate and the applicable arbitration rules.

You and Kewl AI (collectively the “Parties”) agree that this Agreement to Arbitrate is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16.

This Agreement to Arbitrate is intended to be interpreted broadly, and it applies to all Disputes between the Parties, including: (1) claims that arose, were asserted, or involve facts occurring before the existence of this Agreement to Arbitrate or any prior agreement; (2) claims that may arise after the termination of this Agreement to Arbitrate. This Agreement to Arbitrate supersedes any prior arbitration agreement between Kewl AI and you.

Except as set forth in the paragraph below titled “Exceptions,” the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve: (1) all Disputes; (2) whether a claim is subject to arbitration; and (3) any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the arbitration provider rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a Party's failure to comply with this Agreement to Arbitrate or the Informal Dispute Resolution process.

ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. In some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND KEWL AI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

‍Arbitration Rules. For residents of the state of California, or Mass Arbitrations involving any residents of the state of California, the arbitration will be administered by ADR Services, Inc. (“ADR Services”) (https://www.adrservices.com/). For residents of all states other than California, and Mass Arbitrations involving no residents of California, the arbitration will be administered by National Arbitration and Mediation ("NAM") and resolved before a single arbitrator. For residents of all states other than California if, and only if, NAM is not available to arbitrate, the alternative arbitrator shall be ADR Services, Inc. (“ADR Services”) (https://www.adrservices.com/).

Except as modified by this Agreement to Arbitrate, NAM will administer any arbitration in accordance with the NAM “Comprehensive Dispute Resolution Rules and Procedures,” “Fees For Disputes When One of the Parties is a Consumer,” and the “Mass Filing Supplemental Dispute Resolution Rules and Procedures” in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Department at commercial@namadr.com.

Except as modified by this Agreement to Arbitrate, ADR Services will administer any arbitration in accordance with the ADR Services Arbitration Rules and General Fee Schedule in effect at the time any demand for arbitration is filed with ADR Services, including its rules regarding “Mass Arbitrations,” and excluding any rules permitting class or representative actions.  The applicable ADR Services rules and procedures are available at www.adrservices.com.

If the amount in controversy does not exceed $10,000, and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Kewl AI submit to the arbitrator, unless the arbitrator determines that a hearing is necessary or applicable law requires otherwise. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either Party may request (or the arbitrator may determine) to hold a hearing, which may be in-person, via videoconference, or via telephone conference. You and Kewl AI agree that dispositive motions will be allowed in the arbitration.   

‍Arbitration Costs. ADR Services and NAM set forth fees for their services, which are available from each provider. If Kewl AI is the Party initiating an arbitration against you, Kewl AI will pay all costs associated with the arbitration, including the entire filing fee. If you initiate an arbitration against Kewl AI, costs will be determined in accordance with the Rules for the applicable arbitration provider, to the extent allowed by law. In all arbitrations, unless otherwise required by law or the arbitration provider’s rules, you are responsible for all other additional arbitration costs incurred, including attorney’s fees and expert witness costs.

The Parties agree that the arbitration provider has discretion to modify the amount or timing of any administrative or arbitration fees due under the applicable rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The Parties also agree that a good-faith challenge by either Party to the fees imposed by an arbitration provider does not constitute a default, waiver, or breach of this Section while such challenge remains pending before the arbitration provider, the arbitrator, and/or a court of competent jurisdiction and all due dates for those fees shall be tolled during the pendency of such challenge.

Offer of Judgment. At least 14 days before the date set for an arbitration hearing, any Party may serve an offer in writing upon the other Party to allow judgment on specified terms. If the offer made by the offering Party is not accepted by the other Party, and the other Party fails to obtain a more favorable award, the other Party will not recover its post-offer costs and will pay the offering Party’s costs from the time of the offer.

Arbitration Decision. The decision of the arbitrator will be in writing and binding on you and Kewl AI, and judgment to enforce the decision may be entered by any court of competent jurisdiction.

Except as explicitly set forth in this Agreement to Arbitrate, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these terms, including any claim that all or any part of these terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of arbitration provider or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator must follow these terms and can award the same damages and relief as a court. The arbitrator has the right to impose sanctions in accordance with the arbitration provider’s rules and procedures for any frivolous claims, improper claims, or submissions the arbitrator determines have not been filed in good faith, as well as for a Party's failure to comply with this Agreement to Arbitrate or claims filed on behalf of a claimant who is not party to this agreement. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.

Arbitration Location. Except as provided below in the “Mass Filings” section, if you are a resident of the United States and initiate arbitration, such arbitration will take place in the County where you reside, or if no arbitrator is available in that County, then at the closest arbitration location available in the state. If Kewl AI initiates arbitration, and for residents in Canada, arbitration shall be initiated in the County of San Francisco, California, United States of America, unless you and Kewl AI otherwise agree or unless the designated arbitrator determines, based on a written objection, that such venue would be unreasonably burdensome to any Party, in which case the arbitrator shall have the discretion to select another venue despite either Party’s initial selection. For any arbitration conducted, the Parties agree to submit to the personal jurisdiction of any federal or state court in the County of San Francisco, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, the Parties hereby waive any and all jurisdictional and venue defenses otherwise available. The Parties agree that arbitration may take place exclusively by video, where such arrangements are acceptable to the appointed arbitrator.

Mass Filings. For arbitrations before NAM (or any substitute provider for NAM that is agreed upon by the Parties or appointed by a court, due to NAM’s unavailability for any reason), to increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM against Kewl AI within reasonably close temporal proximity ("Mass Filing"), the Parties agree (i) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each batch; (iii) to accept applicable fees, including any related fee reduction determined by NAM ; (iv) that 10% of the anticipated total number of batches for the Mass Filing may proceed simultaneously as set forth in this batching provision and Agreement to Arbitrate, but no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the completion of the “Mediation Period” described below, and after a prior batch of 100 is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Kewl AI and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (vi) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. Arbitrator selection for each batch shall be conducted in accordance with the applicable NAM rules and procedures for such selection and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules. Notwithstanding the Section entitled “Arbitration Location,” for arbitrations subject to this “Mass Filings” Section, the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with Kewl AI, the arbitrator, and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. Any disagreement between the Parties as to whether this provision applies or as to the process or procedure for batching, or whether any demands are properly brought and may be included in a batch, shall be resolved by a procedural arbitrator appointed by NAM. This "Batch Arbitration" provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. If your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled. This provision shall not apply to arbitrations designated to take place at ADR Services under the terms of this Agreement to Arbitrate.

For arbitrations before NAM, the results of the first completely adjudicated batch of demands will be given to a NAM mediator selected from a group of 5 mediators proposed by NAM, with Kewl AI and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results of the first batch are provided to the mediator, Kewl AI, the remaining claimants and their counsel, and the mediator will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If the Parties are unable to resolve the outstanding demands during the Mediation Period and cannot agree on a methodology for resolving them through further arbitrations, either Kewl AI or any remaining claimant may opt out of the arbitration process (“Mass Arbitration Opt Out”) and have the demand(s) proceed in a court of competent jurisdiction. Notice of the Mass Arbitration Opt Out will be provided in writing within 60 days of the close of the Mediation Period. If neither Kewl AI nor the remaining claimants decide to trigger the Mass Arbitration Opt Out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process.  Absent notice of a Mass Arbitration Opt Out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing. This provision shall not apply to arbitrations proceeding at ADR Services, which shall be governed by ADR Services Rules, including ADR Services’ rules applicable to “Mass Filings”. Except that for Mass Filings at ADR Services, the Parties agree that after 10% of the total number of cases that are subject to the Mass Filings have been resolved, Kewl AI and the remaining claimants shall participate in a mediation, and at the conclusion of that process, if the Parties are unable to resolve the outstanding demands and cannot agree on a methodology for resolving them through further arbitrations, either Kewl AI or any remaining claimant may opt out of the arbitration process.

‍Opt-out. You can decline this Agreement to Arbitrate–and no other provision of these terms–by emailing an opt-out notice to optout@kewl.ai within 30 days of June 17, 2025 or when you first register your Kewl AI account, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of the Agreement to Arbitrate, Kewl AI also will not be bound by it and there shall be no arbitration agreement existing between you and Kewl AI, whether under these or prior arbitration provisions. If you opt out of the Agreement to Arbitrate, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes will not apply to claims not yet filed. If you opt out of the Agreement to Arbitrate, you will not be opting out of any other provision of these Terms and you agree to be bound by all other provisions of these Terms, which shall remain in effect as allowable by law.

‍Exceptions. You or Kewl AI may still pursue claims, if they qualify, exclusively in a small claims court in the United States on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing Party initially chose, and you and Kewl AI both consent to venue and personal jurisdiction in that court. The small claims court, and not any arbitrator or arbitration provider, shall have the exclusive authority to resolve disputes regarding whether a dispute is properly within the jurisdiction of a small claims court. Additionally, disputes concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of our services will not be subject to arbitration. Either Party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a Party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a Party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action. Either Party may elect to have disputes regarding whether a complaining Party has satisfied the Informal Dispute Resolution procedures set forth above resolved by a court as a precursor to arbitration; otherwise it shall be resolved in the arbitration.

Class Arbitration and Collective Relief Waiver. IF YOU’RE A U.S. RESIDENT, EXCEPT AS PROVIDED HEREIN, UNLESS KEWL AI AGREES OTHERWISE IN A SEPARATE WRITING, YOU AND KEWL AI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM. Where Kewl AI does consent to consolidation, consolidation may be allowed by agreement or where ordered by a Procedural or Threshold Arbitrator at ADR Services or NAM and you agree to accept such consolidation. In cases consolidated pursuant to this paragraph, the relief may cover the consolidated claims. 

If the paragraph titled “Class Arbitration and Collective Relief Waiver,” the paragraph titled “Mass Filings,” or ADR Service’s Mass Arbitration rules are found unenforceable, then the “Agreement to Arbitrate” section will be null and void. If any other provision is found to be invalid, unenforceable, or illegal, or otherwise conflicts with the rules of the applicable arbitration provider, then the balance of this Agreement to Arbitrate shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.

This subsection does not prevent you or Kewl AI from participating in a class-wide settlement of claims.

Changes to this Agreement to Arbitrate: Kewl AI will provide 30 days’ notice of the date of any material changes to this Agreement to Arbitrate. Changes will become effective on the 30th day and apply to all claims not yet filed, regardless of when they accrued. If you consent to these terms on or before the 30th day or continue to use the site after the 30th day, you agree that any unfiled claims of which Kewl AI does not have actual notice under the Informal Dispute Resolution process are subject to the revised clause. If you reject any such changes by opting out of the Agreement to Arbitrate, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but there shall be deemed to be no arbitration agreement between you and Kewl AI and any prior existing agreement to arbitrate disputes under a prior version of the Agreement to Arbitrate will not apply to claims not yet filed. If Kewl AI changes this Agreement to Arbitrate after the date you first accepted this agreement (or accepted any subsequent changes to this agreement), you agree that your continued use of the Kewl AI product(s) or services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out of this Agreement to Arbitrate by emailing an opt-out notice to optout@kewl.ai before the 30 day period expires.

16. Venue and Governing Law

For any dispute not subject to arbitration or under the jurisdiction of a small claims court, you and Kewl AI agree to submit to the personal and exclusive jurisdiction of any venue in the federal and state courts located in the County of San Francisco, California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

The Terms and the relationship between you and Kewl AI shall be governed by the laws of the State of California without regard to conflict of law provisions.

17. General

Entire Agreement. These Terms (and any additional terms, contracts, rules, and conditions that Kewl AI may post on the Services) constitute the entire agreement between you and Kewl AI with respect to the Services and supersede any prior agreements, oral or written, between you and Kewl AI. 

Waiver and Severability. If any provision(s) of the Terms is held by an arbitrator or court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties and the other provisions shall remain in full force and effect. Kewl AI’s failure to exercise or enforce any of the Terms shall not constitute a waiver of Kewl AI’s right to exercise or enforce the Terms as to the same or another instance.

Assignment. You agree that Kewl AI may assign the Terms to any other entity of its choosing, with or without notice to you. You may not assign the Terms to any other party for any reason.

Section Titles. The section titles in the Terms are solely used for the convenience of the parties and have no legal or contractual significance.

Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. This statute of limitations provision does not apply to residents of New Jersey.

Notice. Kewl AI may give notice by any means of communication reasonably anticipated to notify you of the information provided. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. By way of example only, such communication may be a general notice on the Services or via email to the email address listed on your Account. It is your obligation to update your Account information so that we may contact you as may be necessary. Such notice shall be deemed to have been given 48 hours after dispatch. If physical notice (e.g., US Mail) is used, then such notice shall be deemed to have been given 7 days after dispatch. 

No Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.

18. Contact Us

Please contact us at contact@kewl.ai for any questions about these Terms.

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