Terms of Service

Effective Date: June 1, 2024

INTRODUCTION

These terms and conditions (the “Terms of Service” or “Terms”) are a legal agreement by and between You, in your individual capacity and on behalf of any entity for which you are an authorized representative (“You” or “User”), and Kobo, Inc. (“Kobo,” “we,” or “us”) (each a “Party” and collectively the “Parties”) that governs Your access to and use of: (a) the Kobo website at kobotoolbox.org, its subdomains, and any other website where these Terms are posted (“Website”); and (b) Kobo’s online hosted services and any related software, applications, mobile applications that Kobo may offer to Users (“Mobile App”), content, functionality, documentation, and/or services (the “KoboToolbox”) (collectively, the “Service(s)”) offered by Kobo.

Please read the Terms of Service carefully before You start to use or access our Services. By explicitly accepting or accessing or using our Services, You accept and agree to be bound and abide by these Terms on behalf of Yourself and any entity that You represent in the context of Your use of the Services. If You are using the Services on behalf of a business or entity, You acknowledge and agree that You have such authority to bind such business or entity and that such business or entity accepts these Terms. If You do not agree to these Terms of Service, You may not access or use any of our Services.

We also make various policies, help centers, and other resources available to You to answer common questions and to set expectations about using our Services. These resources include our Privacy Notice (as referenced in Section 11 below), Inactive Accounts Policy, and other Policies accessible from our Policies site. Please understand that by accessing our Services, You agree that You are subject to these Policies.

SECTION 14 “MUTUAL ARBITRATION PROVISION” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS. THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO: (1) WAIVE YOUR RIGHT TO A JURY TRIAL, AND (2) SUBMIT CLAIMS YOU HAVE AGAINST KOBO TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. Please follow the instructions in the Mutual Arbitration Provision below if You wish to opt out of this provision.

1. ELIGIBILITY

The Services are intended for Users eighteen (18) years old and older. By accessing or using the Services, You represent and warrant that You are at least eighteen (18) years old or the age of majority in Your jurisdiction. If You are under 18 years of age, or under the age at which You may enter into a binding agreement under the applicable law in your jurisdiction, You must obtain Your parent or guardian’s written permission to use the Services. Please have them read these Terms with You.

By using our Services, You or Your parent or guardian represent and warrant that You or Your parent or guardian possess the legal right and ability to enter into these Terms of Service and to use the Services in accordance with these Terms.

2. CHANGES TO TERMS OF SERVICE

We reserve the right to modify and update these Terms of Service at our discretion, at any time and from time to time, and so you should review this page periodically. Revised versions will be posted on the Website with an updated “Last Modified” date indicated at the top of this page. Each revision will specify its Effective Date clearly on the page, which will allow you to be aware of when the changes will take effect. We will also provide reasonable notice of any material changes, as determined at our sole discretion, by emailing our Users prior to the changes becoming effective.

You understand that Your continued use of the Services after any change to these Terms means that You accept and agree to be bound by these Terms of Service, as revised. If You do not accept the revised Terms of Service in their entirety, You may not access or use the Services after the updated “Last Modified” date.

3. USER ACCOUNTS AND SERVICES

User Accounts and Use of Services

Users are required to create a User account to use and access KoboToolbox (“Account”). Using another User’s Account without their explicit permission is strictly prohibited. You are solely responsible for how You use Your Account. and Kobo does not control, endorse, or approve such use of Your Account. You bear full responsibility for any activity that takes place on Your Account, and You must ensure the strength and security of Your Account password. If You become aware of any security breach or unauthorized use of Your Account, You must notify us immediately. You agree that we will not be held liable for any losses resulting from unauthorized use of Your Account by individuals with access to Your Account, including any modifications made to Your Account or changes in Your ability to access Your Account or any stored data. Kobo is not responsible for any human error caused by You or any third party. Kobo is not obligated to prescreen Your use of the Services, and we do not regularly monitor use of the Services. However, we may choose, in our sole discretion, to review Your use of the Services.

Federal Government End Use Provisions

We provide KoboToolbox, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to KoboToolbox include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these Terms, it must negotiate with us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written amendment to these Terms specifically conveying such rights must be executed between the Parties.

Accurate Information

In creating and using Your Account, You agree to: (a) provide true, accurate, current, and complete information about Yourself and any entity for which you are an authorized representative on any registration form required for the Services (such information being the “Registration Data”); (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete; and (c) maintain and promptly update Your Payment Information (as defined in Section 4 below) to keep it true, accurate, current, and complete. If You provide any information that is untrue, inaccurate, not current, or incomplete, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, then we have the right to suspend or terminate Your Account and refuse any and all current or future use of Your Account.

System Requirements

Use of the Services requires a compatible device(s) and internet access and may require obtaining updates or upgrades from time to time. Your ability to access and use the Services may be affected by the performance of these factors. You acknowledge that obtaining and maintaining appropriate devices and having appropriate access to the internet are Your responsibility and that Kobo is not responsible for any charges related to these factors while using our Services.

Modification of the Services

Kobo reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to You. You agree that Kobo will not be liable to You or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.

4. CHARGES AND PAYMENTS

Subscription Plans

Use of KoboToolbox is provided through various subscription plans, available either for free or for a fee (a “Subscription Plan”), which allow Users to access specific features of KoboToolbox. Subscription Plans may be offered for a set subscription period (a “Subscription Term”). The initial Subscription Term and any renewal terms (as provided for in the “Renewals” section below) are together referred to as the “Subscription Term” of your paid Subscription Plan. You agree to abide by the terms and conditions of the Subscription Plan You have selected, as provided on the Website or as otherwise communicated to you in writing.

If You elect to sign up for a paid Subscription Plan, You agree to the pricing and payment terms specified on the Website, or as otherwise posted or communicated to You, as we may update them from time to time.

We may change Subscription Plans by updating fees or terms or offering new services at Kobo’s sole discretion. Any change to a Subscription Plan’s pricing or payment terms will become effective in the billing cycle following notice of such change to You.

Billing and Payment

If You sign up for a paid Subscription Plan, we will collect your payment and billing information (“Payment Information”) to process charges for Your Subscription Plan. By agreeing to these Terms, you hereby authorize Kobo to submit charges using your Payment Information for applicable Subscription Plan fees and any applicable taxes and/or services charges related to Your Subscription Plan (the “Service Fees”). All Service Fees must be paid in United States Dollars.

To the extent permitted by applicable law and subject to our Privacy Notice, You acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage any Payment Information associated with Your Subscription Plan, and You agree to be bound by such vendor or service provider’s Services Agreement.

By providing Your Payment Information to Kobo and authorizing payments with the Payment Information, You represent, warrant, and covenant that: (a) You are legally authorized to provide such information; (b) You are legally authorized to make payments using the Payment Information; (c) if You are an employee or agent of a company or person that controls the Payment Information, that You are authorized by the company or person to use the Payment Information for payment of Service Fees; and (d) such actions do not violate the terms and conditions applicable to Your use of such Payment Information or applicable law. When You authorize a payment, You represent and warrant that there are sufficient funds or credit available to complete the payment using the designated Payment Information.

Because the use of any Payment Information may be limited by applicable law or by written agreement with Your financial institution, Kobo is not liable to any User if Kobo does not complete a transaction as a result of any such limit or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Information. Kobo will make commercially reasonable efforts to resolve such transactions in a manner consistent with these Terms.

Renewals

Your Subscription Plan will continue until canceled by You or by Kobo in accordance with these Terms. Unless and until canceled by You, your paid Subscription Plan will automatically renew on the anniversary of the commencement of your paid Subscription Plan, for terms equal in length to your original Subscription Term. You will automatically be charged for each such renewal using the Payment Information You have provided. By agreeing to these Terms and electing to utilize a paid Subscription Plan, you acknowledge that your paid Subscription Plan has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your paid Subscription Plan.

If you do not want Your paid Subscription Plan to renew, you must cancel it before the end of the Subscription Term via the account settings page on Your Account. A free Subscription Plan may be canceled at any time by deleting Your Account from within your account settings or by sending an email to info@kobotoolbox.org requesting that Kobo delete Your Account.

Changes

If you change your Subscription Plan, a new Subscription Term will begin for such changed Subscription Plan on the date on which such new Subscription Plan becomes effective.

Late Payments

Except for invoiced payments that You have successfully disputed, all late payments shall bear interest of 1% per month after the payment due date. You shall also reimburse Kobo for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

5. TERM AND TERMINATION

Effective Date

These Terms of Service become effective on the date on which You agree to these Terms by accessing or using the Website or registering for an Account through KoboToolbox (as applicable) and will remain in effect until: (a) You stop using the Website; (b) You delete Your Account; and/or (c) Kobo terminates Your Account, with the exception of any section(s) of these Terms that by their nature should survive termination.

Cancellation and Termination

Kobo may terminate your Subscription Plan and/or close your Account at any time without cause and for any reason without notice or liability to You. If we cancel or terminate your paid Subscription Plan, except in the event of your breach of these Terms or failure to pay fees when due, we will grant you a prorated refund for the remaining unused portion of your Subscription Term. If you cancel or terminate your paid Subscription Plan without changing to another paid Subscription Plan or moving to a free Subscription Plan, your right to use KoboToolbox will continue until the end of your then-current Subscription Term and then terminate without further charges. If You request cancellation of your free Subscription Plan by deletion of your Account, Your right to use or access KoboToolbox will immediately terminate.

Notwithstanding the foregoing, if You live in the European Union or Turkey and cancel Your paid Subscription Plan within fourteen (14) days of purchase, You will be eligible for a refund of any payments made for the canceled paid Subscription Plan and, if You request such a refund, Your right to use KoboToolbox will terminate immediately upon cancellation of Your paid Subscription Plan. Subject to the preceding sentence, if You cancel your paid Subscription Plan, unless required by applicable law, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF ANY FEES PAID FOR THE THEN-CURRENT SUBSCRIPTION TERM AT THE TIME OF TERMINATION.

Upon termination or cancellation of Your Subscription Plan without changing to another Subscription Plan or upon deletion of your Account: (a) all licenses and rights granted to You under these Terms related to KoboToolbox shall immediately cease; (b) You shall stop using KoboToolbox; (c) Kobo will have no further obligation to retain Your data (including Your Confidential Information as defined in Section 8); and (d) any section(s) of these Terms that by their nature should survive cancellation or termination will survive.

6. ADDITIONAL TERMS FOR MOBILE APPLICATIONS

Mobile Applications

The Mobile App is available via a compatible mobile device. If You use the Mobile App, You may incur mobile data charges from your wireless provider in connection with the Mobile App, and You agree that You are solely responsible for any such charges. You acknowledge and agree that we may make available updated versions of the Mobile App. You represent and warrant that You are using, and will at all times in the future use, the latest version of the Mobile App on Your mobile device. You agree that these Terms will apply to Your use of and access to any and all such versions of the Mobile App.

App Store Terms

You acknowledge and agree that availability of the Mobile App is dependent on the third-party platform (the “App Store”) from which You download the Mobile App. You acknowledge that these Terms are between You and Kobo and not with an App Store. Each App Store may have its own terms and conditions to which You must agree before downloading the Mobile App from it. You agree to comply with such App Store terms and conditions, and Your right and license to use the Mobile App (as stated in Section 12 below) is conditioned upon Your compliance with those App Store terms and conditions. To the extent that any terms and conditions from the App Store are less restrictive than or otherwise conflict with the terms and conditions set forth in these Terms, the more restrictive or conflicting terms and conditions in these Terms will apply.

7. DONATIONS

If You donate to Kobo, we will collect your payment and billing information (“Donor Payment Information”) to process charges for Your donation. All donations must be paid in United States Dollars. If You donate to Kobo on a recurring basis, by agreeing to these Terms, you hereby authorize Kobo to submit charges using your Donor Payment Information for Your recurring donations. We (or our third-party payment processor) will automatically charge You according to the donation schedule You have selected on our Website until You cancel Your recurring donation. If you wish to cancel recurring donation payments, you must use the link included in your donation confirmation email or contact donate@kobotoolbox.org at least fourteen (14) days before Your next scheduled donation payment.

To the extent permitted by applicable law and subject to our Privacy Notice, You acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage any Donor Payment Information associated with Your donation.

By providing Your Donor Payment Information to Kobo and authorizing payments with the Donor Payment Information, You represent, warrant, and covenant that: (a) You are legally authorized to provide such information; (b) You are legally authorized to make payments using the Donor Payment Information; and (c) such actions do not violate the terms and conditions applicable to Your use of such Donor Payment Information or applicable law. When You authorize a payment, You represent and warrant that there are sufficient funds or credit available to complete the payment using the Donor Payment Information.

Because the use of any Donor Payment Information may be limited by applicable law or by written agreement with Your financial institution, Kobo is not liable to You if Kobo does not complete a transaction as a result of any such limit or if a financial institution fails to honor any credit or debit to or from an account associated with such Donor Payment Information. Kobo will make commercially reasonable efforts to resolve such transactions in a manner consistent with these Terms.

8. PROHIBITED USES

You may use our Services only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Services:

  • In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries, and data privacy or data protection laws related to the collection, use, security, processing, retention, and sharing of personal data or personal information (as such terms are defined by applicable law)).
  • For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
  • To send, knowingly receive, upload, download, use, or re-use any material that does not comply with these Terms of Service.
  • To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
  • To impersonate or attempt to impersonate Kobo, a Kobo team member, another User, another organization, or any other person or entity (including, without limitation, by using email addresses or Account names associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Kobo or Users of the Services, or expose them to liability.
  • For any political purpose or activity, as determined solely by Kobo.

Additionally, You agree not to:

  • Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party's use of the Services, including their ability to engage in real-time activities through the Services.
  • Use any robot, spider, or other automatic device, process, or means to access the Services for any unauthorized purpose, including monitoring or copying any of the material on the Services. This prohibition does not apply to the use of the services through officially provided APIs, which may be subject to separate terms and conditions.
  • Use any device, software, or routine that interferes with the proper working of the Services, including any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the servers on which the Services are stored, or any server, computer, or database connected to the Services.
  • Attack the Services via a denial-of-service attack, a distributed denial-of-service attack, or any similar means.
  • Otherwise attempt to interfere with the proper working of the Services.

9. CONFIDENTIALITY

Definitions

“Confidential Information” of a Party means the confidential or proprietary information or data of that Party, including without limitation: (a) all information clearly identified as confidential or proprietary; (b) Your KoboToolbox survey or questionnaire questions and results; and (c) the Party’s business, operational, financial, technical, and proprietary information. Confidential Information of Kobo includes any code or non-public documentation relating to the Services. Your Confidential Information includes Your Personal Information (defined below), including Personal Information related to respondents or participants in Your surveys or questionnaires. Notwithstanding the above, except Your Personal Information, Confidential Information does not include information that is: (a) developed independently by the receiving Party (including Aggregate Data, defined below); (b) known to the receiving Party before receiving it from the disclosing Party; or (c) publicly available or received from another source without violation of an obligation of confidentiality.

“Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, household, or entity, and includes “personal data,” “personally identifiable information,” “sensitive data,” and analogous terms under Data Privacy Laws. “Data Privacy Laws” means all data privacy, data security, data breach notification, and/or data protection laws, rules, and regulations applicable to the Personal Information provided to Kobo by You or applicable to the processing of such Personal Information by Kobo on Your behalf.

Obligations

Neither Party shall use Confidential Information of the other Party for any purpose other than the purposes described in these Terms. Each Party agrees to safeguard, protect, and keep secret the Confidential Information of the other Party. A receiving Party must promptly notify the disclosing Party in writing of any disclosure or misuse of the disclosing Party’s Confidential Information promptly upon becoming aware of such disclosure or misuse. Notwithstanding the above, a receiving Party may disclose the disclosing Party’s Confidential Information to the extent necessary to comply with a court order or other legal requirement.

Usage Data

Kobo may use data related to Your use of the Services to improve its product and service offerings. Kobo may also use or disclose such usage data in aggregate form, which does not identify You (the “Aggregate Data”), for any purpose permitted by applicable law. Kobo may transfer Aggregate Data to any successor-in-interest under an obligation of confidentiality, as permitted by applicable law.

10. US DEPARTMENT OF THE TREASURY OFFICE OF FOREIGN ASSETS CONTROL CERTIFICATIONS

User represents and warrants that User: (a) does not appear on the U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons (“SDN”) List or, if User is using the Services on behalf of a business or entity that, to the best of User’s knowledge, no director, officer, owner, principal, or employee of such business or entity or any of its subsidiaries appear on the SDN List; and (b) neither User or, to the best of User’s knowledge, any business or entity on whose behalf User is accessing the Services, any of such business or entity’s subsidiaries or, to the best of User’s knowledge, any director, officer, owner, principal, or employee of such business or entity or any of its subsidiaries is the target of any sanctions law or is located, organized, or resident in a country or territory that is, or whose government currently is, the target of countrywide sanctions imposed by OFAC or any U.S. government sanctions authority.

User certifies that User is not: (a) acting on behalf of any person, group, or entity (“Person”) and/or any nation named by any Executive Order of OFAC or otherwise, as a terrorist, “Specially Designated National,” “Blocked Person,” or other banned or blocked Person or nation, pursuant to any law, order, rule, or regulation that is enforced or administered by OFAC or another department of the U.S. government; (b) using or accessing the Services on behalf of, nor instigating or facilitating the use or access to the Services on behalf of, any such Person or nation; and/or (c) contemplating any use of or access to the Services under these Terms that is prohibited by U.S. export controls laws or economic or trade sanctions imposed by OFAC or other U.S. government authorities.

User acknowledges and agrees that User or any business or entity on whose behalf User is accessing the Services will not: (a) sell, export, re-export, or otherwise transfer Kobo products or technology in violation of U.S. export controls laws or economic or trade sanctions imposed by OFAC or any other U.S. government authorities; and/or (b) engage in transactions with parties appearing on the SDN List.

11. PRIVACY NOTICE

In accordance with applicable Data Privacy Laws (as defined in Section 8), Kobo will notify individual Users of its publicly posted Privacy Notice available at https://www.kobotoolbox.org/privacy/ and, as a data processor, may process Personal Information collected directly from individual Users as described in such Privacy Notice.

12. INTELLECTUAL PROPERTY RIGHTS

Kobo Intellectual Property

Subject to Your compliance with these Terms, Kobo grants to You a non-exclusive, non-assignable, and non-sublicensable right and license to access and use (a) KoboToolbox on a software-as-a-service basis, as hosted by Kobo, (b) the Mobile App, and/or (c) the Website (as applicable). The rights granted to You in these Terms are subject to the restrictions in these Terms.

The KoboToolbox name, logo, trademarks, and all related names, logos, product and service names, designs, and slogans are trademarks of Kobo or its affiliates or licensors. All other names, logos, product and service names, designs, and slogans related to the Services are the trademarks of their respective owners. You shall not be entitled to use Kobo’s name or any trade name, trademark, or service mark belonging to Kobo in printed brochures, press releases, or in any other form of advertising for any product, service, or technology without the prior written consent of Kobo.

Services Content

The Services are provided to You as a convenience. Your use of the Services is at Your own risk. Kobo does not warrant or represent that: (a) any materials, documents, recommendations, images, graphics, shareable links, design, audio, video, and any other information authored by or created in connection with the use of the Services (collectively, the “Services Content”) is accurate or complete; (b) the Services Content is up to date or current; (c) Kobo has any obligation to update the Services Content; (d) the Services Content is free from technical inaccuracies or programming or typographical errors; (e) the Services Content is free from changes caused by a third party; (f) Your access to the Services will be free from interruptions, errors, computer viruses, or other harmful components; or (g) any information obtained in response to questions asked through the Services is accurate or complete. All Services Content not authored or created by Kobo reflects solely the views and opinions of the authors thereof. The Services Content should not be construed or relied upon as legal, financial, medical, or technical advice.

Feedback

The Services may now or in the future permit You to upload, post, or otherwise submit to us various forms of content, such as reviews, ratings, feedback, questions, comments, and suggestions about the Services (collectively, “Feedback”). Feedback does not include KoboToolbox survey questions, responses to survey questions, or other survey-specific data collected by or on behalf of You. We do not claim ownership of Your Feedback. However, by submitting any Feedback, You hereby grant (and You represent and warrant that You have the right to grant) to Kobo an irrevocable, non-exclusive, royalty-free, and fully-paid license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit Your Feedback in any manner that Kobo deems appropriate. You will not have or obtain any rights in or to any form, media, or technology incorporating any of Your Feedback. You agree that You will not submit to Kobo any information or ideas that You consider to be confidential or proprietary. You further acknowledge that Kobo will be entitled to unrestricted use of Your Feedback for any purpose whatsoever, commercial or otherwise. You are solely responsible for Your Feedback and assume all risks associated with Your Feedback, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of Feedback that personally identifies You or a third party. Kobo cannot guarantee any confidentiality with respect to any Feedback. We reserve the right (but have no obligation) to review any Feedback and to investigate and/or take appropriate action against You in our sole discretion if You violate these Terms or otherwise create liability for us or any other person.

13. DIGITAL MILLENNIUM COPYRIGHT ACT

Kobo respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws.

Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:

Kobo, Inc.
37 Highland Ave,
Cambridge MA, 02139
United States of America

Email Address: info@kobotoolbox.org

If You believe that Your work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please provide our designated agent with notice in accordance with the requirements of the Act, including: (a) a description of the copyrighted work that You claim has been infringed and the specific materials available on or through the Services that you claim to be infringing and where such materials are located; (b) a description of the location of the original or an authorized copy of the copyrighted work; (c) Your address, telephone number, and email address; (d) a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by You, made under penalty of perjury, that the information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf; and (f) an electronic or physical signature of the owner of the copyright or a person authorized to act on behalf of the owner of the copyright’s interest.

14. MUTUAL ARBITRATION PROVISION– PLEASE READ.

YOU AND KOBO MUTUALLY AGREE TO RESOLVE ANY JUSTICIABLE DISPUTES, PAST, PRESENT OR FUTURE, BETWEEN THE PARTIES, OR BETWEEN OR AMONG YOU AND ANY OF KOBO EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, OR ASSIGNS, EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION INSTEAD OF A COURT OR JURY TRIAL. Except as it otherwise applies, this Mutual Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16), or if the Federal Arbitration Act does not apply, then the arbitration law of the State of Massachusetts, and shall apply to any and all claims arising out of or relating to these Terms or Your use of the Services (including without limitation the scope, enforceability, validity, or conscionability of this Mutual Arbitration Provision) whether arising under federal, state, or local statutory and/or common law.

Notice of Disputes

If either Party initiates arbitration, the initiating Party must notify the other Party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the Party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by You must be delivered to:

Kobo, Inc.
37 Highland Ave,
Cambridge MA, 02139
United States of America

And Email Address: info@kobotoolbox.org

Delegation Clause

Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision, including, without limitation, any claim that all or any part of this Mutual Arbitration Provision is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues, including issues relating to whether these Terms are applicable, unconscionable, or illusory and any defense to arbitration, including, without limitation, waiver, delay, laches, or estoppel. However, only a court of competent jurisdiction, and not an arbitrator, shall have the exclusive authority to resolve any and all disputes arising out of or relating to the Class Action Waiver, including, but not limited to, any claim that all or part of the Class Action Waiver is unenforceable, unconscionable, illegal, void, or voidable. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND KOBO ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS MUTUAL ARBITRATION PROVISION. This Mutual Arbitration Provision is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Mutual Arbitration Provision are expressly excluded from the requirement to arbitrate.

Arbitration Procedures

The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, but will not be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. Unless You and Kobo agree otherwise, any arbitration hearings will take place in the county (or parish) where You are receiving Services. If the value of Your claim is USD $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, by telephone, or by an in-person hearing. If the value of Your claim exceeds USD $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. The arbitrator may consider, but is not bound by, rulings in other arbitrations between Kobo and You. The arbitrator can award the same individualized damages and relief that a court can award. Judgment on the award may be entered by any court having jurisdiction.

No Class Arbitration

The arbitrator may award 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. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND KOBO 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 GROUP LITIGATION OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or group proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

Class Action Waiver – PLEASE READ

YOU AND KOBO MUTUALLY AGREE THAT BY ENTERING INTO THIS MUTUAL ARBITRATION PROVISION, BOTH PARTIES WAIVE THEIR RIGHT TO HAVE ANY DISPUTE OR CLAIM BROUGHT, HEARD, OR ARBITRATED AS A CLASS ACTION OR COLLECTIVE ACTION, AND AN ARBITRATOR SHALL NOT HAVE ANY AUTHORITY TO HEAR OR ARBITRATE ANY CLASS OR COLLECTIVE ACTION (“CLASS ACTION WAIVER”). Notwithstanding any other clause contained in this Mutual Arbitration Provision or the AAA Rules, any claim in court or arbitration that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by the court and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class and/or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. Kobo may lawfully seek enforcement of this Mutual Arbitration Provision and the Class Action Waiver and seek dismissal of such class or collective actions or claims. The Class Action Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.

Private Attorney General Action Waiver – PLEASE READ

THIS MUTUAL ARBITRATION PROVISION AFFECTS YOUR ABILITY TO BRING OR PARTICIPATE IN PRIVATE ATTORNEY GENERAL REPRESENTATIVE ACTIONS UNDER CALIFORNIA LAW. BOTH YOU AND KOBO AGREE TO BRING ANY DISPUTE IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A PRIVATE ATTORNEY GENERAL REPRESENTATIVE BASIS ON BEHALF OF OTHERS. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD, OR ARBITRATED AS A PRIVATE ATTORNEY GENERAL REPRESENTATIVE ACTION OR AS A MEMBER IN ANY SUCH PRIVATE ATTORNEY GENERAL PROCEEDING (“PRIVATE ATTORNEY GENERAL WAIVER”). Notwithstanding any other clause contained in this Mutual Arbitration Provision or the AAA Rules, any claim in court or arbitration that all or part of this Private Attorney General Waiver is unenforceable, unconscionable, void, or voidable may be determined only by the court and not by an arbitrator. In any case in which (1) the dispute is filed as a private attorney general action and (2) there is a final judicial determination that all or part of the Private Attorney General Waiver is unenforceable, the private attorney general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Private Attorney General Waiver that is enforceable shall be enforced in arbitration. Kobo may lawfully seek enforcement of this Mutual Arbitration Provision and the Private Attorney General Waiver and seek dismissal of such private attorney general representative actions or claims. The Private Attorney General Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.

Your Right to Opt Out of this Mutual Arbitration Provision – PLEASE READ

ACCEPTANCE OF THIS MUTUAL ARBITRATION PROVISION IS NOT A MANDATORY CONDITION OF YOUR RELATIONSHIP WITH KOBO, AND THEREFORE YOU MAY SUBMIT A STATEMENT NOTIFYING KOBO THAT YOU WISH TO OPT OUT AND NOT BE SUBJECT TO THIS MUTUAL ARBITRATION PROVISION. In order to opt out of the Mutual Arbitration Provision, You must notify Kobo by sending or hand delivering to: Kobo, Inc. ATTN: Legal, 37 Highland Ave, Cambridge MA, 02139, United States of America; email Address: info@kobotoolbox.org, a written notice signed and dated by You stating that You are opting out of the Mutual Arbitration Provision. In order to be effective, Your opt out notice must be provided within thirty (30) days of You creating Your Account with Kobo or first using the Services.

Additionally, for existing users at the time these updated terms initially become effective, your opt-out notice must be submitted within thirty (30) days following this initial update's effective date.

You will not be subject to retaliation as a consequence of a decision to opt out, and if You opt out You may pursue available claims and remedies in a court of law (but not arbitration). Should You not opt out within 30 days of creating Your Account with Kobo or first using the Services, continuing Your relationship with Kobo constitutes mutual acceptance by You and Kobo of the Mutual Arbitration Provision. If You opt out of the Mutual Arbitration Provision, You and Kobo will continue to be mutually bound by all other terms of these Terms. The right to opt out described in this paragraph applies only to the Mutual Arbitration Provision and not any other provision of these Terms.

Severability

Except as otherwise provided in the Mutual Arbitration Provision, in the event that any portion of this Mutual Arbitration Provision is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed, and the remainder of the Mutual Arbitration Provision shall be given full force and effect.

Future Changes to this Mutual Arbitration Provision

If Kobo makes any changes to the Mutual Arbitration Provision of these Terms (other than a change to the address at which Kobo will receive notices of dispute, opt-out notices, or rejections of future changes to the Mutual Arbitration Provision), You may reject any such change by sending us written notice within 30 calendar days of the change to: info@kobotoolbox.org. It is not necessary to send us a rejection of a future change to the Mutual Arbitration Provision of these Terms if You had properly opted out of the arbitration and group litigation waiver provisions in this Section 14 within the first 30 calendar days after You first accepted these Terms. If You have not properly opted out of the arbitration and group litigation waiver provisions in this Section 14, by rejecting a future change, You are agreeing that You will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes You did not reject.

15. WARRANTY DISCLAIMER

When using the Services, information will be transmitted in such a way that may be beyond our control. As such, we make no warranty concerning the delay, failure, interruption, or corruption of any data, content, Feedback, or other information transmitted in connection with the use of the Services. WE PROVIDE THE SERVICES "AS IS" AND “AS AVAILABLE” WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ACCESSIBLE WITHOUT INTERRUPTION OR THAT THE SERVICES, ANY CONTENT FROM THE SERVICES, OR THE SERVER THAT MAKES THE SERVICES AVAILABLE, ARE OR WILL BE FREE FROM ERRORS, DEFECTS, DESIGN FLAWS, OMISSIONS, VIRUSES, OR OTHER HARMFUL COMPONENTS. KOBO IS NOT RESPONSIBLE FOR THE DELETION OF OR FAILURE TO STORE ANY MESSAGES, OTHER COMMUNICATIONS, OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICES, OR FOR ANY LOSS OF INFORMATION DUE TO MALFUNCTION OR DESTRUCTION OF DATA, SERVERS, OR OTHER CATASTROPHIC EVENTS.

16. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KOBO BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES) ARISING OUT OF OR IN CONNECTION WITH ANY USE OF, THE INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICES. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE PORTIONS OF THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL WE BE LIABLE OR RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ERRORS IN PRICING OR AVAILABILITY OF SERVICES AND PRODUCTS. IN NO EVENT WILL KOBO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT THAT YOU HAVE PAID KOBO IN THE LAST SIX (6) MONTHS. THE FORGOING LIMITATIONS OF LIABILITY WILL APPLY EVEN IF ANY WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.

17. INDEMNIFICATION

You are responsible for maintaining the confidentiality of Your username(s), password(s), and Your Account(s), as well as all activities that occur under Your Account(s). You agree to indemnify, defend, and hold Kobo and its officers, directors, employees, agents, affiliates, representatives, and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities, and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of any breach by You of these Terms or any claims arising from Your use of the Services and/or Your Account(s). You will use Your best efforts to cooperate with Kobo in the defense of any claim. Kobo reserves the right, at its own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by You.

18. GOVERNING LAW; VENUE

These Terms of Service and any claim arising out of these Terms will be governed by and construed in accordance with the laws of the State of Massachusetts, without regard to any conflict of laws principles. You agree and hereby submit to the exclusive personal jurisdiction and venue of the state and federal courts in Boston, Massachusetts, with respect to such matters.

19. LOCAL LAWS

Kobo makes no representation that the Services are appropriate or available for use in jurisdictions outside the United States. Access to the Services from jurisdictions where such access is illegal is prohibited. If You choose to access the Services from other jurisdictions, You do so at Your own risk and are responsible for compliance with applicable local laws. The Services may be subject to United States export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any United States technical data acquired from or through the Services, or any products utilizing such data, in violation of any United States export laws or regulations.

20. WAIVER AND SEVERABILITY

No waiver by Kobo of any term or condition set out in these Terms of Service will be deemed a further or continuing waiver of that term or condition or a waiver of any other term or condition, and any failure of Kobo to assert a right or provision under these Terms of Service will not constitute a waiver of that right or provision.

If any provision of these Terms of Service is held by an arbitrator, court, or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, then that provision will be eliminated or limited to the minimum extent such that the remaining provisions of these Terms of Service will continue in full force and effect.

21. ADDITIONAL REMEDIES

You acknowledge that Your conduct that is inconsistent with these Terms may cause Kobo irreparable damage for which remedies other than monetary relief may be inadequate. In such instances, You agree that we may seek injunctive or other equitable relief seeking to restrain such conduct without the necessity of proving actual harm or posting a bond.

22. FORCE MAJEURE

Kobo will not be responsible for delays or failure of performance resulting from acts beyond its reasonable control. Such acts shall include, and not be limited to, acts of God, riots, acts of war, failures of internet or other communication systems, power outages, terrorism, epidemics, pandemics, new governmental regulations issued after the Effective Date, flood, fire, earthquake, or other disasters.

23. ENTIRE AGREEMENT

These Terms of Service constitute the sole and entire agreement between You and Kobo and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, to the extent they relate in any way to the Services.

24. CONTACT INFORMATION

For questions or concerns related to these Terms, please contact us at: info@kobotoolbox.org.