MAHKANA, LLC TERMS OF USE

 

User's Acknowledgment and Acceptance of Terms

Mahkana, LLC (“Mahkana” "us" “our” or "we") provides the Mahkana Website and various related services, (collectively, the "Website" or “Site”) to you, the user, subject to your compliance with all the terms, conditions, and notices contained or referenced herein (the "Terms of Use"), as well as any other written agreement between us and you. In addition, when using particular services or materials on this Website, users shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions in addition to those in these Terms of Use. All such guidelines or rules are hereby incorporated by reference into these Terms of Use.

 

We may also interact with you on third party sites where we post content or invite your feedback, such as www.facebook.com/givemahkana, www.twitter.com/givemahkanawww.instagram.com/givemahkana, and www.youtube.com/givemahkana ("Third Party Sites"). Our Terms of Use provide guidelines and rules and regulations in connection with our Website, including services that involve Third Party Sites, but Mahkana does not control those Third Party Websites, and these Terms of Use, our guidelines and our rules and regulations do not apply to companies that Mahkana does not own or control, or to the actions of people that Mahkana does not employ or manage. Users of Third Party Sites shall be subject to the terms of use posted on those Third Party Sites.  Therefore, you should always check the terms of use posted on any third party site, including the Third Party Sites.

 

These Terms of Use are effective as of April 22, 2019. We expressly reserve the right to change these Terms of Use from time to time without notice to you. You acknowledge and agree that it is your responsibility to review this Website and these Terms of Use from time to time and to familiarize yourself with any modifications. Your continued use of this Website after such modifications will constitute acknowledgement of the modified Terms of Use and agreement to abide and be bound by the modified Terms of Use.

 

Privacy Policy                    

Please refer to our www.mahkana.com/privacy-policy for information about how we collect, use and disclose information about you.

 

Eligibility

The Website is not targeted toward or intended for use by anyone under the age of 13. By using the Sites, you represent and warrant that you (a) are 13 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) are able to create a binding legal obligation and have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party, and (e) your use of the Sites will at all times comply with these Terms.

 

 

Product Information

All prices displayed on mahkana.com are quoted in U.S. Dollars and are valid and effective only in the U.S. Before any minor (any individual under the age of eighteen) purchases or uses any product from the Website, ask a parent or guardian for permission before making a purchase. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Mahkana. All material and information presented by Mahkana through the Website is strictly for personal informational and educational purposes only.

 

You agree not to distribute in any medium any part of the Website’s information, products, or video content posted by Mahkana without Mahkana’s prior written authorization.

 

Terms of Sale

Mahkana provides beaded bracelets (“Bracelets”) for sale in support of a particular charity. Bracelets may be purchased in a variety of different colors and the pattern of colors are associated with a particular charity. The Bracelet and the particular charity associated with that Bracelet shall be listed on the Website.  A portion of net profits from the purchase of a Bracelet will be donated directly to the charity associated with each Bracelet sold. You must select the particular Bracelet(s), size(s) and quantity of Bracelets you would like to purchase and particular address for the Bracelets to be sent to (collectively, an “Order”). You agree to pay for any Bracelets ordered through the Website.

 

In addition, you may elect to donate additional money to a charity at the time of your Order (the “Donation”). This Donation will be given to the charity after deducting any processing or administrative fees from the Donation amount. Donations made to a charity through this process are not tax deductible.

 

A. Payment and Billing Information

By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your purchase (including any applicable taxes and other charges) (collectively, as applicable, a “Payment”). If the Payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any Payment method problems before we proceed with your Order.

 

You acknowledge that the amount billed may vary due to promotional offers, preferences you select, or changes in applicable taxes or other charges, and you authorize us (or our third party-payment processor) to charge your Payment method for the corresponding amount.

 

B. Pricing and Availability

All prices are shown in U.S. dollars and applicable taxes and other charges, if any, will be added to the prices shown. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. We will not be able to notify you of changes in any applicable taxes.

 

All of our Bracelets are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Bracelets and to substitute specific colored beads without prior notice. We strive to provide you with high-quality Bracelets, and given conditions beyond our control, we may be required to make substitutions from time to time. If you are not satisfied with a substitution, please contact us at info@mahkana.com.

 

C. Taxes

If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.

 

D. Shipping

You are responsible for the shipping cost of the Order. The cost associated with shipping will be shown at checkout. Several factors may alter the cost of shipping. You are responsible for providing a correct address for shipment. Mahkana is not responsible for any errors in the address or any lost shipments that may result in you not receiving your order. The risk of loss and title for all products you order passes to you upon delivery to the carrier (such as FedEx, UPS or USPS).

 

E. Returns, Replacements, Refunds, and Credits

If you are dissatisfied with a Bracelet for any reason, please contact us at info@mahkana.com within seven (7) days of the date you receive the Bracelet. Depending on the circumstances, we may, in our sole discretion, replace the Bracelet at our expense, provide you a full or partial refund of the purchase price for that Bracelet, or decide that no refund or replacement is appropriate under the circumstances.

 

We may require the return of the Bracelet(s) or photographic documentation of the Bracelet(s) that you are dissatisfied with before we provide you a refund or replacement.

 

Color and Other Information

We make every effort to display the images of our products as accurately as possible. However, while Mahkana has tried to accurately display the colors of products, the actual colors, dimensions, and details that you see on your computer monitor or other device will vary depending on your equipment and may not be accurate, so we cannot guarantee that your equipment will accurately display the details of our products and services. Moreover, Mahkana disclaims any responsibility for any inadvertent mistakes or inaccuracies in any product. Also note that all product and service descriptions, prices, and availability are subject to change at any time, without notice. 

 

Co-Venture with Charities

Mahkana sells Bracelets to support various charities. A portion of the net profits of each Order will go to the particular charities associated with the Order. You understand that Mahkana is not a tax exempt organization and the money you pay for your Order is not tax deductible. You also understand that any additional Donation is not a tax deductible. Furthermore, Mahkana does not represent, endorse or control any of the charities.  

 

Communication Preferences

By using our Website, you also consent to receive electronic communications from Mahkana (e.g., via email or by posting notices to the Website). These communications may include notices about your Order (e.g., payment authorizations and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.

 

License to access and Use Our Sites and Content

Unless otherwise indicated in writing by us, the Website and all content and other materials contained therein, including, without limitation, the Mahkana logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Mahkana or our licensors or users, as applicable, and are protected by U.S. and international copyright, trademark, and other intellectual property laws.

 

You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Website and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Mahkana or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.

 

Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Mahkana or a third party that are subject to separate license terms, in which case those license terms will govern such software components.

 

Repeat Infringer Policy; Copyright Complaints

In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:

 

        Address:  Mahkana, LLC. 1116 W. 30th Street, Los Angeles, CA 90007

        Phone:   (310) 910-3620

        Email: info@mahkana.com

 

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

 

Trademarks and Copyrights

“Mahkana,” Mahkana LLC., the Mahkana logo and any other Mahkana Product or service names, logos or slogans that may appear on the Website or Bracelets are trademarks of Mahkana and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Mahkana” or any other name, trademark or Product or service name of Mahkana without our prior written permission.

 

The design of each Bracelet is created for use on Website and unique to Mahkana, and all rights are reserved.  You may not copy or imitate any Bracelet design or take any action that infringes on any of our copyrights or designs or any rights we may have under U.S. or international copyright law. 

 

In addition, the look and feel of the Website and Bracelets, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Mahkana and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Website or Bracelets are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Bracelets, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Mahkana.

 

Hyperlinks

You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Website for noncommercial purposes, provided that such link does not portray Mahkana or any of our Bracelets in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Mahkana logo or other proprietary graphic of Mahkana to link to the Website without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Mahkana trademark, logo or other proprietary information, including the images found on the Website, the content of any text or the layout or design of any page, or form contained on a page, on the Website without our express written consent.

 

Mahkana makes no claim or representation regarding the quality, content, nature or reliability of third party websites accessible by hyperlink from the Website or of websites linking to the Website. Such sites are not under our control and we provide these links to you only as a convenience. The inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Website, you should be aware that our terms and policies no longer govern. . If you decide to access websites maintained by other parties, you do so at your own risk. We are not responsible or liable, directly or indirectly, for any damage, loss or liability caused or alleged to be caused by or in connection with any use of or reliance on any content, products or services available on or through any such linked site or resource.  You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Website.

 

Third Party Content

We may display content, advertisements and promotions from third parties through the Website or in shipments with Bracelets (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.

 

Feedback

You can submit questions, comments, suggestions, ideas, original or creative materials or other information about Mahkana, the Website or the Bracelets (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Mahkana. Mahkana shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

 

Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Mahkana, and our respective past, present and future employees, officers, members, managers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Mahkana Parties”), from and against all actual or alleged Mahkana Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Website, Content or Bracelets by you or any third party you authorize to access or use such Website, Content or Bracelets, (b) any Feedback you provide, (d) your violation of these Terms, and (c) your violation of the rights of another. You agree to promptly notify Mahkana of any third party Claims, cooperate with the Mahkana Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Mahkana Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Mahkana.

 

Disclaimers

WE ATTEMPT TO DISPLAY THE BRACELETS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE WEBSITE, INCLUDING PRICING AND COLOR, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR WEBSITE, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE BRACELETS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE BRACELETS AND MATERIALS DISPLAYED ON THE WEBSITE DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF BRACELETS OR BEADS. A REFERENCE TO A PRODUCT ON THE WEBSITE DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.

 

ALL BRACELETS AND THE WEBSITE AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. MAHKANA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE WEBSITE, CONTENT AND BRACELETS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE WEBSITE OR BRACELETS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.

 

Limitation of Liability; Release

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAHKANA PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE WEBSITE OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY BRACELET, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY MAHKANA PARTY, OR FROM EVENTS BEYOND THE MAHKANA PARTIES’ REASONABLE CONTROL, SUCH AS WEBSITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE MAHKANA PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF MAHKANA ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF BRACELETS  PURCHASED FROM MAHKANA EXCEED THE AMOUNT PAID FOR SUCH BRACELETS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE MAHKANA’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE MAHKANA PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH MAHKANA PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

 

THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY BRACELETS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.

 

Under California Civil Code Section 1789.3 California users of an electronic commercial service receive the following consumer rights notice:  The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or by telephone at (800) 952-5210.  Additional information may be found at: https://www.dca.ca.gov/consumers/complaints/disclosure_standards.shtml

 

California residents expressly agree to waive California Civil Code Sec. 1542, which states: "A general release does not extend the 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." 

 

Modifications to the Website and Bracelets

We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Website (or any features or parts thereof) or the provision of the Bracelets at any time. We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Website (or any features or functionality of the Website) and the Bracelets at any time without notice and without obligation or liability to you.

 

Dispute Resolution; Arbitration

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MAHKANA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

 

A. Binding Arbitration

Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Mahkana agree (a) to waive your and Mahkana’ respective rights to have any and all Disputes arising from or related to these Terms, or the Website, Content or Bracelets, resolved in a court, and (b) to waive your and Mahkana’ respective rights to a jury trial. Instead, you and Mahkana agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).

 

B. No Class Arbitrations, Class Actions or Representative Actions

You and Mahkana agree that any Dispute arising out of or related to these Terms or the Website, Content or Bracelets is personal to you and Mahkana and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Mahkana agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Mahkana agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

 

C. Federal Arbitration Act

You and Mahkana agree that these Terms affect interstate commerce and that the enforceability of this section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.

 

D. Notice; Informal Dispute Resolution

You and Mahkana agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Mahkana shall be sent by certified mail or courier to Mahkana, LLC., 1116 W. 30th Street, Los Angeles, CA 90007. Your notice must include (a) your name, postal address, telephone number, the email address you use for Mahkana orders, and if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Mahkana cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Mahkana may, as appropriate and in accordance with this section, commence an arbitration proceeding or, to the extent specifically provided for in this section, file a claim in court.

 

E. Process

EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF THE TERMS OF USE OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND MAHKANA AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR MAHKANA WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND MAHKANA WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Mahkana agree that (a) any arbitration will occur in the State of California, County of Los Angeles, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Los Angeles, exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.

 

F. Authority of Arbitrator

As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

 

G. Rules of JAMS

The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

 

H. Severability

If any term, clause or provision of this section is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this section will remain valid and enforceable. Further, the waivers set forth are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.

 

I. Opt-Out Right

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this section by writing to: Mahkana, LLC, Attn: CEO, 1116 W. 30th Street, Los Angeles, CA 90007. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with this Terms of Use.

 

Governing Law and Venue

These Terms, your access to and use of the Website and your order, receipt and use of the Bracelets shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Los Angeles, City of Los Angeles.

 

Termination

Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Website and to order, receive and use the Bracelets, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.

 

General Provisions

A. Indemnity

You agree to indemnify, defend, and hold harmless Mahkana (which includes Mahkana's affiliates and subsidiaries) and its officers, employees, agents, business partners, licensors, and licensees from any damages, liabilities, costs, and expenses (including reasonable attorneys' fees) on account of any claim, suit, action, demand, or proceeding made or brought against Mahkana or any such other party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (a) your use of this Website or any content, (b) your violation of these Terms of Use, or (c) your violation of any rights of any third party.

 

B. Assignment

You agree that Mahkana may assign any of its rights and/or transfer, sub-contract or delegate any of its obligations under these Terms of Use. These Terms of Use are personal to you may not transfer or assign it to a third party.

 

C. Revisions to this Website and these Terms of Use

At any time, without notice to you and for any or no reason, Mahkana may, in its sole discretion, modify or discontinue any aspect of this Website, including, without limitation, any content, any activities available on this Website, and any products or services offered through this Website. Mahkana shall in no way be held liable for any consequence which results from Mahkana's decision to modify or discontinue providing the Website. Mahkana may also, in its sole discretion, revise these Terms of Use by updating or revising this document, with the revised terms taking effect as of the date of its posting. Your continued use of this Website following the effective date of any such change or modification constitutes your acknowledgement and acceptance of the changed or modified Terms of Use and your agreement to abide and be bound by the changed or modified Terms of Use.

 

D. Operation of Website; Availability of Products and Services

Mahkana controls and operates this Website from its headquarters in the United States of America, and Mahkana makes no representation that this Website is appropriate or available for use beyond the United States of America. If you use this Website from other locations, you are responsible for compliance with applicable local laws. Although Mahkana products and services are available in many parts of the world, this Website may describe products and services that are available only in the United States of America (or only parts of it) and are not available worldwide.

 

E. Jurisdiction, Venue, and Governing Law

You agree that any action at law or in equity arising out of or relating to these Terms of Use for the Website shall be filed, and that venue properly lies, only in state or federal courts located in Los Angeles, California, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. These Terms of Use shall be governed by and construed in accordance with the laws of the State of California and the laws of the United States, without giving effect to any principles of conflicts of law.

 

F. Force Majeure

Mahkana shall not be liable for any failure to perform in accordance with these Terms of Use which is due to an event beyond the control of Mahkana including but not limited to any Act of God, terrorism, war, political insurgence, insurrection, riot civil unrest act of civil or military authority, uprising, earthquake, flood or any other natural or man made eventuality outside of our control, which causes the termination of an agreement or contract which may have been entered into, nor which could have been reasonably foreseen.

 

G. Miscellaneous Provisions.

If any provision of these Terms and Conditions is deemed unlawful, void, or unenforceable for any reason, then that provision will be deemed severable from the remainder of these Terms of Use and will not affect the validity or enforceability of the remainder of these Terms of Use. No waiver of any provision of these Terms of Use by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. In these Terms of Use, the word "including" is used illustratively, as if followed by the words "but not limited to." you agree that any cause of action you may have arising out of or related to these Terms of Use or the Website must commence within one (1) year after the cause of action accrues; otherwise, such cause of action shall be permanently barred.

 

These Terms constitute the entire agreement between you and Mahkana relating to your access to and use of the Website and your order, receipt and use of Bracelets. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Mahkana. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Mahkana’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.