KelbyOne Terms of Use

Overview:

Welcome to KelbyOne, LLC (hereinafter referred to as “KelbyOne,” “we,” or “us”)! We are a membership service that provides our members with access to online training and other audio-visual education (“online training”) streamed over the Internet to computers and other devices (“KelbyOne ready devices”).

These Terms of Use govern your use of our service. As used in these Terms of Use, “KelbyOne service,” “our service” or “the service” means the service provided by KelbyOne for discovering and watching online training, including all features and functionalities, Website (as defined below), and user interfaces, as well as all content and software associated with our service.

If you are a resident of the United States (including its possessions and territories), you agree to the Arbitration Agreement and class action waiver described in Section 15 to resolve any disputes with KelbyOne (except for matters that may be taken to small claims court).

Please note that these Terms of Use include hyperlinks that may be accessed only through our Website, so if you are reviewing these Terms of Use through certain KelbyOne ready devices, you may need to visit KelbyOne.com/Terms-of-Use to review these hyperlinked terms.

  1. Acceptance of Terms of Use.
    1. These Terms of Use, which include our Privacy Policy (KelbyOne.com/Privacy-Policy), govern your use of the KelbyOne service. By using, visiting, or browsing the KelbyOne Website, you accept and agree to these Terms of Use. If you do not agree to these Terms of Use, do not use the KelbyOne service.
    2. KelbyOne is provided by KelbyOne, LLC, or one of its affiliated companies.
  2. Changes to Terms of Use. KelbyOne may, from time to time, change these Terms of Use, including the Privacy Policy, EULA, and Social Terms. Such revisions shall be effective immediately; provided however, for existing members, such revisions shall, unless otherwise stated, be effective thirty (30) days after posting. Your continued use of our services following the posting of the revised Terms of Use means that you accept and agree to the changes.
  3. Privacy. Personally identifying information is subject to our Privacy Policy (KelbyOne.com/Privacy-Policy), the terms of which are incorporated herein. Please review our Privacy Policy to understand our practices.
  4. Communication Preferences. By using KelbyOne, you consent to receiving electronic communications from KelbyOne relating to your account. These communications may involve sending emails to your email address provided during registration, or posting communications on KelbyOne, or in the “Your Account” page and will include notices about your account (e.g., payment authorizations, change in password or Payment Method, confirmation e-mails, and other transactional information) and are part of your relationship with KelbyOne. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receiving certain other communications from us, such as newsletters about new KelbyOne features and content, special offers, promotional announcements, and customer surveys via email or other methods. If you no longer want to receive certain non-transactional communications, simply go to the “Email preferences” link on the “Your Account” page of our website (http://KelbyOne.com/My-Account) to manage your KelbyOne communications. Please review our Privacy Policy (KelbyOne.com/Privacy-Policy) for further detail on our marketing communications.
  5. Membership, Free Trials, Billing, and Cancellation.
  6. Membership

    1. Monthly Membership. Your KelbyOne Monthly Membership is for 30 days from the date of sign-up (“Monthly Term”). Upon the expiration of each 30-day period, the monthly membership shall automatically renew for successive 30-day periods (“Monthly Renewal Term”) unless you cancel your membership or we terminate it. You must have Internet access and provide us with a current, valid, accepted method of payment (as such may be updated from time to time), to use the KelbyOne service. We will bill each monthly membership fee to your Payment Method at the beginning of each Monthly Renewal Term with the first membership fee payment occurring upon the date of sign-up or after any applicable free-trial period. To avoid a charge to your Payment Method for a Monthly Renewal Term, you must cancel your membership before the existing term.
    2. Annual or Segmented Annual Memberships. Your KelbyOne Annual or Segmented Annual Membership is for one (1) year from the date of sign-up (“Annual Term”). Upon the expiration of each Annual Term, the Annual or Segmented Annual Membership shall automatically renew for successive Annual Terms (“Annual Renewal Term”) unless you cancel your membership or we terminate it. You must have Internet access and provide us with a current, valid, accepted method of payment (as such may be updated from time to time) to use the KelbyOne service. We will bill each Annual or Segmented Annual Membership fee to your Payment Method at the beginning of each Annual Renewal Term with the first membership fee payment occurring sign-up. To avoid a charge to your Payment Method for a Annual or Segmented Renewal Term, you must cancel your membership before the existing term.
    3. Free Trials. Kelby may offer an initial 10-day free trial with its Monthly, Annual, or Segmented Annual Memberships (“Free Trial”). Unless you cancel your membership before the expiration of the Free Trial, we will bill your Payment Method for the applicable membership fees. Free Trials cannot be combined with other offers that include free merchandise. Free Trials are for new members only and are not available for any renewal memberships. KelbyOne reserves the right, in its absolute discretion, to determine your Free Trial eligibility. To view the specific details of your membership, including Monthly, Annual, and Segmented Annual membership fees, automatic renewal date, and status of a Free Trial visit our website and click the “My Account” link on your “Dashboard” page at (http://KelbyOne.com).
    1. You will not receive a notice from us that your Free Trial period has ended or that the paying portion of your membership has begun. ONCE LOGGED IN, CLICK THE “MY ACCOUNT” LINK AT THE BOTTOM OF YOUR DASHBOARD WEB PAGE (http://KelbyOne.com) TO FIND THE CANCELLATION BUTTON. We will continue to bill your Payment Method on a monthly, multi-month or annual basis for your membership fee until you cancel.
    2. Billing

    3. Recurring Billing. By starting your KelbyOne membership and providing or designating a Payment Method, you authorize us to charge you the membership fee at the then current rate, and any other charges you may incur in connection with your use of the KelbyOne service to your Payment Method. Membership Fees are fully earned upon payment.
    4. Price Changes. We reserve the right to adjust our Monthly, Annual or Segmented Annual Membership Fee in any manner and at any time as we may determine in our sole and absolute discretion that shall be communicated to you before the next Monthly or Annual Renewal Term and shall take effect during such term. Promotional membership offers in which a reduced rate or free merchandise is included with a membership is applicable only to your first Membership Fee payment and does not affect the Membership Fee for any renewal period, which shall renew at the then current Membership Fee absent any reduced rates or free merchandise.
    5. Refunds. MEMBERSHIP FEE PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following a cancellation of a Monthly, Annual or Segmented Annual Membership, NO REFUNDS SHALL BE ISSUED, however, you will continue to have access to the service through the end of your membership term.
  7. Payment Methods. You may edit your Payment Method information by visiting our website and clicking on the “My Account” link, available at the bottom of your “Dashboard” page of the KelbyOne website once logged in. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information or cancel your account (see Cancellation below), you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or other charges. Check with your Payment Method service provider for details.
  8. Cancellation. You may cancel your KelbyOne membership at any time, and you will continue to have access to the KelbyOne service through the end of your Membership Term. You will not receive a notice from us about the automatic renewal date of your membership term. CLICK THE “MY ACCOUNT” LINK AT THE BOTTOM OF YOUR DASHBOARD PAGE AFTER LOGGING IN (http://KelbyOne.com) TO FIND CANCELLATION BUTTON. We will continue to bill your Payment Method until you cancel provided that all outstanding membership fees have been paid in full. If there are any outstanding membership fees at the time you cancel, then we will continue to bill your payment method for such fees.
  9. KelbyOne Service.
    1. You must be 18 years of age, or the age of majority in your province, territory or country, to become a member of KelbyOne. Individuals under the age of 18, or applicable age of majority, may utilize the service only with the involvement of a parent or legal guardian, under such person’s account and otherwise subject to these Terms of Use. By using or accessing our services you represent that you are 18 years or older or that you are of legal age to form a binding contract with KelbyOne and meet the eligibility requirements. If you are under the age of 18 years old, your parent or legal guardian shall enter into the binding contract with KelbyOne on your behalf.
    2. The KelbyOne website, http://kelbyone.com (“Website”) and its entire contents, features, and functionality (including, but not limited to, all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by us, our licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. KelbyOne and any content viewed through our service are for your personal and non-commercial use only. During your KelbyOne membership, we grant you a limited, non-exclusive, non-transferable, license to access the KelbyOne service and view online training through the service on a streaming-only basis for that purpose. Except for the foregoing limited license, no right, title or interest shall be transferred to you. You agree not to use the service for public performances.
    3. You may view an online training course through the KelbyOne service primarily within the country in which you have established your account and only in geographic locations where we offer our service and have licensed such courses. THE NUMBER OF DEVICES ON WHICH YOU MAY SIMULTANEOUSLY WATCH IS LIMITED. Go to the change plan information in the “My Account” page to see the number of devices on which you may simultaneously watch. The number of devices available for use and the simultaneous streams may change from time to time at our discretion.
    4. We continually update the KelbyOne service, including the content library. In addition, we continually test various aspects of our service, including our website, user interfaces, service levels, plans, promotional features, availability of courses, delivery and pricing. We reserve the right to, and by using our service you agree that we may, include you in or exclude you from these tests without notice. We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
    5. You agree to use the KelbyOne service, including all features and functionalities associated therewith, in accordance with all applicable laws, rules and regulations, or other restrictions on use of the service or content therein. You agree not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use (except as explicitly authorized in these Terms of Use) content and information contained on or obtained from or through KelbyOne, without express written permission from KelbyOne and its licensors. You also agree not to: circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the KelbyOne service; use any robot, spider, scraper or other automated means to access KelbyOne; decompile, reverse engineer or disassemble any software or other products or processes accessible through KelbyOne; insert any code or product or manipulate the content of KelbyOne in any way; use any data mining, data gathering or extraction method and attempt to interfere with the proper working of the Website and KelbyOne services. You also agree not to upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with KelbyOne, including any software viruses or any other computer code, files or programs. In addition, you agree not to send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in these Terms of Use.
    6. The availability of courses to watch will change from time to time, and from country to country. The quality of the display of the courses may vary from computer to computer, and device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection. HD and Ultra HD availability is subject to your Internet service and device capabilities. Not all content is available in HD or Ultra HD and not all plans allow you to receive HD or Ultra HD content. A download speed of at least 5.0 Mbps per stream is recommended to receive HD content, which is defined as 720p or better. A download speed of at least 25.0 Mbps per stream is recommended to receive Ultra HD content, which is defined as resolution greater than 1080p. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges. KelbyOne makes no representations or warranties about the quality of your watching experience on your display. The time it takes to begin watching a course will vary based on a number of factors, including your location, available bandwidth at the time, and courses you have selected.
    7. We may terminate or restrict your use of our service, without compensation or notice if you are, or if we suspect that you are (i) in violation of any of these Terms of Use; or (ii) engaged in illegal or improper use of the service.
  10. Passwords & Account Access.
    1. The member who created the KelbyOne account and whose Payment Method is charged is referred to here as the “Account Owner.” The Account Owner has access and control over the KelbyOne account. The Account Owner’s control is exercised through use of the Account Owner’s password and therefore to maintain exclusive control, the Account Owner must treat such information as confidential, and the Account Owner must not disclose it to any other person or entity. The Account Owner agrees to notify KelbyOne immediately of any unauthorized access to or use of your user name or password or any other breach of security. In addition, if the Account Owner wishes to prohibit others from contacting KelbyOne Customer Service and potentially altering the Account Owner’s control, the Account Owner should not reveal the Payment Method details (e.g., last four digits of their credit or debit card, or their email address if they use PayPal) associated with their account. All the information you provide as the Account Owner is correct, current, and complete and the Account Owner is responsible for updating and maintaining the correctness, currentness, and completeness of such information.
    2. In order to provide you with ease of access to your account and to help administer the KelbyOne service, KelbyOne implements technology that enables us to recognize you as the Account Owner and provide you with direct access to your account without requiring you to retype any password or other user identification when you revisit the KelbyOne, which includes accessing via the Website.
    3. You should be mindful of any communication requesting that you submit credit card or other account information. Providing your information in response to these types of communications can result in identity theft. Always access your sensitive account information by going directly to the Website and not through a hyperlink in an email or any other electronic communication, even if it looks official. KelbyOne reserves the right to place any account on hold anytime with or without notification to the member in order to protect itself and its partners from what it believes to be fraudulent activity. KelbyOne is not obligated to credit or discount a membership for holds placed on the account by either a representative of KelbyOne or by the automated processes of KelbyOne.
  11. User Contributions.
    1. The services may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Website.
    2. All User Contributions must comply with the Content Standards set out in these Terms of Use. Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material.
    3. You represent and warrant that:
    1. You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our licensees, successors, and assigns.
    2. All of your User Contributions do and will comply with these Terms of Use.
    3. You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not KelbyOne, has full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
    4. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Website.
  12. Monitoring and Enforcement of User Contributions; Termination.
    1. We have the right to:
      1. Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
      2. Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public or could create liability for KelbyOne.
      3. Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
      4. Take appropriate legal action, including, without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
      5. Terminate or suspend your access to all or part of the Website for any violation of these Terms of Use.
    2. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS KELBYONE AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
    3. However, we do not undertake review of material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
  13. Content Standards.
    1. These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must, in their entirety, comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
    1. Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
    2. Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
    3. Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
    4. Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy (insert privacy policy link).
    5. Be likely to deceive any person.
    6. Promote any illegal activity, or advocate, promote or assist any unlawful act.
    7. Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
    8. Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
    9. Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter or advertising.
    10. Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
  14. Disclaimers of Warranties and Limitations on Liability.
    1. You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. 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 USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
    2. THE KELBYONE SERVICE AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE KELBYONE SERVICE, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. NEITHER KELBYONE NOR ANY PERSON ASSOCIATED WITH KELBYONE MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF KELBYONE SERVICES, SOFTWARE AND CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER KELBYONE NOR ANYONE ASSOCIATED WITH KELBYONE REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES, OR THAT ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. KELBYONE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE KELBYONE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. KELBYONE SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE OF APPLICATIONS, KELBYONE READY DEVICES, AND KELBYONE SOFTWARE (INCLUDING THEIR CONTINUING COMPATIBILITY WITH OUR SERVICE).
    3. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL KELBYONE, OR ITS SUBSIDIARIES OR ANY OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
    4. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
    5. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
  15. Gifts & Promotions. In certain jurisdictions, redemption/gift cards for KelbyOne may be available for purchase at third-party retail outlets and websites, which can be redeemed on our website at http://KelbyOne.com/redeem .The purchase and redemption of gift cards are subject to the redemption terms (http://KelbyOne.com/redeem) From time to time, other types of promotional codes may be available, including those provided as part of a third party promotion. Promotional codes may be redeemed as described in the specifics of the promotion. Gift cards and promotional codes can only be used once, cannot be redeemed for cash, and may be combined with other offers, including a free trial, subject to certain restrictions as determined by KelbyOne in its sole discretion. If you received a promotional code through an offer by a third party, additional conditions may apply.
  16. Intellectual Property.
    1. Copyright. The KelbyOne service, including all content provided on the Website is protected by copyright, trade secret or other intellectual property laws and treaties.
    2. Trademarks. KelbyOne is a registered trademark of KelbyOne, Inc. The KelbyOne name, logo, and all related names, logos, product and service names, designs and slogans are trademarks of the KelbyOne, its affiliates, subsidiaries, or licensors. You must not use such marks without the prior written permission of KelbyOne.
    3. Reporting Claims of Copyright Infringement.
      1. Your physical or electronic signature.
      2. Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
      3. Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
      4. Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
      5. A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
      6. A statement that the information in the written notice is accurate.
      7. A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
      8. Our designated Copyright Agent to receive DMCA Notices is:
        Erik Kuna
        118 Douglas Road East, Oldsmar Florida, 34677
        813-433-5000
        [email protected]
    4. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
    5. Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
    6. Counter-Notification Procedures. If you believe that material you posted on the Website was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent (identified below). Pursuant to the DMCA, the Counter-Notice must include substantially the following:
      1. Your physical or electronic signature.
      2. An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
      3. Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
      4. A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
      5. A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.
      6. Completed Counter-Notices should be sent to:
        Erik Kuna
        118 Douglas Road East, Oldsmar, Florida, 34677
        813-433-5000
        [email protected]

        The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten (10) business days of receiving the copy of your Counter-Notice.

        Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

    7. Repeat Infringers. It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
  17. Governing Law.
    1. For all other KelbyOne members, these Terms of Use shall be governed by and construed in accordance with the laws of the State of Florida, United States of America, without regard to conflict of law provisions.
    2. You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction.
  18. Applications. You may encounter third-party applications (including, without limitation, websites, widgets, software, or other software utilities) (“Application(s)”) that interact with the KelbyOne service. These Applications may import data related to your KelbyOne account and activity and otherwise gather data from you. These Applications are provided solely as a convenience to you, and KelbyOne is not responsible for such Applications. SUCH APPLICATIONS ARE OWNED OR OPERATED BY THIRD PARTIES THAT ARE NOT RELATED TO WITH OR SPONSORED BY KELBYONE AND MAY NOT BE AUTHORIZED FOR USE WITH OUR SERVICE IN ALL COUNTRIES. USE OF AN APPLICATION IS AT YOUR OWN OPTION AND RISK.
  19. Use of Information Submitted. KelbyOne is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (“Feedback”), including responses to questionnaires or through postings to the KelbyOne service, including the Website and user interfaces, worldwide and in perpetuity without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the KelbyOne service. In addition, you agree not to enforce any “moral rights” in and to the Feedback, to the extent permitted by applicable law. Please note KelbyOne does not accept unsolicited materials or ideas for classes or training, and is not responsible for the similarity of any of its content or programming in any media to materials or ideas transmitted to KelbyOne. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against KelbyOne and its affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the material or idea you sent.
  20. Customer Support. To find more information about our service and its features, or if you need assistance with your account, please visit KelbyOne Member Support on your dashboard page under my account (http://KelbyOne.com/Support). In the event of any conflict between these Terms of Use and information provided by Customer Support or other portions of our website, these Terms of Use will control.
  21. Arbitration Agreement.
    1. If you are a KelbyOne member in the United States (including its possessions and territories), you and KelbyOne agree that any dispute, claim or controversy arising out of or relating in any way to the KelbyOne service, these Terms of Use and this Arbitration Agreement and the validity thereof, shall be determined by binding arbitration before the American Arbitration Association or in small claims court. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and KelbyOne are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your KelbyOne membership.
    2. If you elect to seek arbitration or file a small claims court action, you must first send to KelbyOne, by certified mail, a written notice of your claim (“Notice”). The Notice to KelbyOne must be addressed to: General Counsel, KelbyOne, LLC, Inc., 118 Douglas Road East, Oldsmar, Florida 34677 (“Notice Address”). If KelbyOne initiates arbitration, it will send a written Notice to the email address used for your membership account. A Notice, whether sent by you or by KelbyOne, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If KelbyOne and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or KelbyOne may commence an arbitration proceeding or file a claim in small claims court.
    3. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after KelbyOne receives notice at the Notice Address that you have commenced arbitration, KelbyOne will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000, in which event you will be responsible for filing fees.
    4. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. The tribunal shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless KelbyOne and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your residence.
    5. If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of KelbyOne’s last written settlement offer made before an arbitrator was selected (or if KelbyOne did not make a settlement offer before an arbitrator was selected), then KelbyOne will pay you the amount of the award or US$1,000, whichever is greater.
    6. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules.

    7. YOU AND KELBYONE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, the arbitrator shall not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
  22. Indemnification. You agree to defend, indemnify and hold harmless KelbyOne, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Website.
  23. Entire Agreement. The Terms of Use, our Privacy Policy and Terms of Sale, constitute the sole and entire agreement between you and Company with respect to the Website and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Website.
  24. Survival. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.

Last updated: November 12, 2015