Last Updated: June 10, 2023
KE makes the KE website that links to this Agreement (the “Site”) and any mobile applications it may make available (the “App”) (the App and the Site, collectively, the “Platform”) available for your use subject to the terms and conditions in this Agreement. In addition, any products or services you purchase through your use of the Platform (the “Products”) will also be governed by the terms and conditions in this Agreement.
1. Revisions to this Agreement
We may revise and update this Agreement from time to time and will post the updated Agreement to the Platform. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of this Platform will constitute your agreement to any new provisions within the revised Agreement.
2. Your License to Access the Platform
All written content prepared and posted by KE and the Platform design, layout, look, appearance, and graphics on the Platform, as well as the trademarks, service marks, and logos contained on the Platform (“KE Content”) are owned by or licensed to KE and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. KE reserves all rights not expressly granted in, and to, the Platform and the KE Content.
Except as otherwise provided in this Agreement, no part of the Platform and no Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use without our prior express written consent.
On the condition that you comply with all your obligations under this Agreement, KE grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Platform. Any use of the Platform in excess of this license is strictly prohibited and constitutes a violation of this Agreement which may result in the termination of your right to access and use the Platform.
Your access to the Platform is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any content or services we provide on the Platform without notice.
3. Restrictions on Your Use of the Platform
You agree that when using the Platform you will not:
1. Delete, modify, or attempt to change or alter any of the KE Content or notices on the Platform;
2. Introduce into the Platform any virus, rogue program, time bomb, drop dead device, ransomware, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Platform or to otherwise harm other users, KE Content, or any third parties, or perform any such actions;
3. Use the Platform to commit fraud or conduct other unlawful activities;
4. Access or attempt to access any other person’s account, personal information, or content without permission;
5. Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Platform is based;
6. Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Platform for any reason;
7. Run a Mail list, Listserv, any form of auto-responder or “spam” on the Platform, any processes that run or are activated while you are not logged into the Platform or that otherwise interfere with the proper working of the Platform, including placing an unreasonable load on the Platform’s infrastructure);
8. Use any KE Content made available through the Platform in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
9. Submit any content or communications through or relating to the Platform that violates any rights of a third party including copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
10. Submit any content or communications through the Platform that is unlawful, harmful, hateful, threatening, abusive, violent, profane, discriminatory, prejudicial, disparaging, fraudulent, inaccurate, misleading, dangerous, offensive, indecent, harassing, threatening, intimidating, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or otherwise objectionable;
11. Decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Platform;
12. Connect to or access any KE computer system or network without authorization;
13. Use the information in the Platform to create or sell a similar service; or
14. Use the Platform for the purpose of soliciting, selling, or offering services, merchandise, or products.
KE may suspend or terminate, in whole or in part, your access to the Platform if you violate the terms and conditions set forth in this Section.
4. Your Content and Suggestions
The Platform includes features that involve information that you upload, submit, or send through the Platform (“Your Content”). This section provides the terms and conditions governing your use of such features.
A. License to Your Content. By submitting Your Content to the Platform, you grant KE a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, create derivative works of, adapt, display, and perform Your Content. You represent and warrant that you have the necessary rights to Your Content including the right to assign or grant a license to your rights in this Agreement. Please do not submit Your Content to the Platform if do not wish to grant us the rights set forth in this Section 4(A).
B. Your Suggestions. We welcome your comments regarding the Platform, KE Content, and our products. In addition to the license you grant to us in Section 4(A) for Your Content, if you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials to us in connection with or related to the Platform and KE’s products including any related technology, whether you send such information or materials to us through the Platform or through a separate communication channel, you grant us a non-exclusive, perpetual, royalty-free, irrevocable right to use, disclose, reproduce, modify, license, transfer, and otherwise distribute, and exploit any such information or materials in any manner. Please do not send us such information or materials if you do not wish to grant us the rights set forth in this Section 4(B).
C. Your Responsibility for Your Content. Your Content is your sole responsibility. Under no circumstances will we be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content. KE further reserves the right to monitor, delete, or modify any of Your Content that it deems offensive, inappropriate, advertising, illegal, off-topic or otherwise violates this Agreement. In addition, please do not submit sensitive personal information, including protection health information, to the Platform.
5. Third Party Websites
The Platform may include or provide links to other websites on the Internet that we do not control. These other websites may provide opinions, recommendations, or other information from various individuals, organizations, or companies. We are not responsible for the nature, quality, or accuracy of the content or opinions expressed on such websites, and we do not investigate, monitor, or check them for quality, accuracy, or completeness. Inclusion of any linked website on the Platform does not imply or express an approval or endorsement of the linked website by us or of any of the content, opinions, treatments, information, medical advice, products, or services provided on these websites even if we receive a referral fee in connection with your use of such third-party websites.
6. Your Privacy
7. Your Customer Accounts; Product Purchases
You may be required to create a customer account on the Platform in order to purchase Products. You are responsible for protecting your Platform account log-in credentials from unauthorized access and use. Any activity that occurs under your account will be Your responsibility. You must promptly notify KE by email at email@example.com of any known or suspected unauthorized use(s) of your account. You are responsible for complying with all applicable laws and regulations regarding online conduct in connection with your customer account, and KE may terminate your account access in the event you violate the terms of this Agreement. KE will presume, and you warrant, that you are 18 years or older and any information received from or about you through your access to or use of the Platform including through your customer account is accurate, complete, and authorized by you.
KE reserves the right to limit or prohibit sales to resellers or other parties who purchase the Products with the intention of reselling to others. Please contact firstname.lastname@example.org for wholesale information.
9. Returns and Refunds
Product orders must be cancelled within twelve (12) hours of order placement and prior to shipment to avoid fees. If, for any reason, you are not 100% satisfied with your purchase, please email us at email@example.com within thirty (30) days of the delivery date to request a refund or exchange for its purchase price. You will be required to return the Product to KE Fuels, LLC, PO Box 1350, Winter Park, CO 80482-1350 and will be responsible for all associated shipping costs and fees. You must provide proof of purchase. Please wrap the box securely, and indicate Your reason for the return or exchange on Your packing slip. There must be no more than two (2) units missing of any purchased SKU from the order, and the remainder of the returned units must be unopened for KE to consider offering a refund or honoring an exchange. Once KE receives the returned Product, KE will, in its sole discretion and within 30 days of receipt of the returned Product, refund the payment to the original payment source or exchange the Product. Excessive or abusive cancellations, returns, or refund requests may void our policy and guarantees on future orders.
10. Promotions, Discounts, and Contests
From time to time we may provide you the opportunity to participate in promotions, sweepstakes, or other opportunities to obtain discounts. Such promotional events may be subject to additional terms and conditions.
11. Disclaimer of Warranties
THE PLATFORM IS PROVIDED “AS IS”. WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (i) YOUR USE OR THE RESULTS OF YOUR USE OF THE PLATFORM; (ii) ANY ADVICE YOU GLEAN FROM THE PLATFORM WHETHER PROVIDED BY US OR A THIRD PARTY; OR (iii) ANY OTHER KE CONTENT AVAILABLE THROUGH THE PLATFORM. NOTHING IN THIS PLATFORM IS INTENDED OR SHOULD BE CONSTRUED AS MEDICAL ADVICE. ANY KE CONTENT CONTAINED IN THE PLATFORM IS FOR CONSUMER INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. INDIVIDUALS SHOULD CONSULT A MEDICAL PROFESSIONAL FOR INDIVIDUAL HEALTHCARE RECOMMENDATIONS. PRODUCT INGREDIENTS ARE AS DESCRIBED ON THE APPLICABLE PRODUCT LABEL. THE ALLERGEN INFORMATION PROVIDED ON THE PLATFORM IS FOR YOUR INFORMATIONAL PURPOSES ONLY. YOU CONSUME KE PRODUCTS AT YOUR OWN RISK.
WE DO NOT PROMISE THAT THE PLATFORM WILL BE UNINTERRUPTED, THAT THE PLATFORM WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADDITIONAL STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US, AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY COMMUNICATION OR CONTENT.
12. Limitation of Liability
We are not responsible for any damages to you or anyone filing suit on your behalf for any reason.
KE AND ITS LICENSORS, PARENTS, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNEES, OR SUCCESSORS-IN-INTEREST WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS, DEMANDS, LOST PROFITS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE RELATING TO THIS AGREEMENT, YOUR USE OF THE PLATFORM OR ANY INFORMATION YOU OBTAIN ON IT OR ANY OTHER INTERACTION WITH THE PLATFORM. YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF KE.
YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE PLATFORM WILL BE TO STOP USING THE PLATFORM.
IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF KE, ITS SUPPLIERS, LICENSORS, PARENT, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ASSIGNEES OR SUCCESSORS-IN-INTEREST FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT, INCLUDING, NEGLIGENCE OR STRICT LIABILITY, OR OTHERWISE, AND YOUR SOLE REMEDY SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE THOUSAND U.S. DOLLARS ($1000.00 USD) or your direct provable damages.
IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST KE.
YOU WILL HOLD HARMLESS, INDEMNIFY, AND DEFEND KE, ITS SUBSIDIARIES, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES (COLLECTIVELY, “KE PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS INCLUDING ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES, AND REASONABLE ATTORNEYS’ FEES ARISING THEREFROM RELATING TO ANY ACTION OR PROCEEDING BROUGHT BY A THIRD PARTY AGAINST ANY ONE OR MORE OF THE KE PARTIES (I) ALLEGING INJURY, DAMAGE, OR LOSS RESULTING FROM YOUR USE OF THE PLATFORM; (II) ALLEGING THAT CONTENT YOU SUBMITTED THROUGH OR RELATING TO THE PLATFORM INFRINGES A COPYRIGHT, PATENT, OR TRADEMARK OR MISAPPROPRIATES A TRADE SECRET OF A THIRD-PARTY; (III) RELATED TO ANY ACT OR OMISSION BY YOU WHICH IS A BREACH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; AND (IV) YOUR USE OF INFORMATION OBTAINED THROUGH THE PLATFORM.
You will have the right to defend and compromise such claim at your expense for the benefit of the KE Parties; provided, however, you will not have the right to obligate the KE Parties in any respect in connection with any such settlement without the prior written consent of the indemnified party. Notwithstanding the foregoing, if you fail to assume your obligation to defend, the KE Parties may do so to protect their interests, and you will reimburse all costs incurred by the KE Parties in connection with such defense.
14. Choice of Law
This Agreement and the rights of the Parties hereunder will be governed by and construed in accordance with the Laws of the State of Colorado, exclusive of conflict or choice of law rules. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive Law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
15. Dispute Resolution
1. Binding Mutual Arbitration. Any dispute, claim, or controversy in connection with, arising out of, or relating to membership in the Program, this Agreement, or the breach, termination, enforcement, interpretation or validity of this Agreement, including, but not limited to, the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), will be determined by arbitration in the State of Colorado before a single arbitrator. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with AAA Consumer Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction. This provision will not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
2. Conduct of Arbitration. The arbitration will be commenced by the claimant party filing a demand for arbitration with the administrator of AAA and serving the demand on the opposing party. Within thirty (30) calendar days of the date the demand for arbitration is filed, the Parties will select an arbitrator by following the AAA Consumer Arbitration Rules’ appointment procedures. Except as may be required by law, neither Party nor the arbitrator may disclose the existence, content, or results of any arbitration under this Agreement without the prior written consent of both Parties. The arbitrator’s award will be in writing accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based.
3. Costs. The arbitrator will determine how the costs and expenses of the arbitration will be allocated between the Parties and may award attorneys’ fees.
4. Limitation of Liability. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits or any punitive or exemplary damages.
5. Arbitration is on an Individual Basis Only; Class Action Waiver. The parties agree to arbitrate solely on an individual basis and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the arbitrator’s power to rule on his or her own jurisdiction and the validity or enforceability of the agreement to arbitrate, the arbitrator has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of this Section will remain in force.
16. Digital Millennium Copyright Act Procedure
KE investigates notices of copyright infringement and takes appropriate actions under the Digital Millennium Copyright Act (“DMCA”), Title 17, United States Code, Section 512(c), as follows:
· For purposes of providing written notice under the DMCA, KE has designated an agent with the United States Copyright Office (“Copyright Agent”). All written notification, pursuant to the DMCA, must be submitted to the designated Copyright Agent at the following address:
KE Fuels, LLC
P.O. Box 553
Winter Park, CO 80482-0553
· If you are a copyright owner or agent thereof and believe that third-party submitted content or materials, including videos, photographs, and digital images (“Third-Party Submission”), available through this Platform infringes upon your copyrights, you may submit written notification, pursuant to the DMCA, to KE’s Copyright Agent, identified above. To be effective, the written notification must include:
o A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
o Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
o Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
o Information reasonably sufficient to permit the service provider to contact the complaining party, including an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
o A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
o A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
· If you believe that your Third-Party Submission, which was removed or to which access was disabled, is not infringing or that you have authorization from the copyright owner, the copyright owner’s agent, or authority under the law to publish or use the Third-Party Submission, you may submit a written counter-notice, pursuant to the DMCA, to KE’s Copyright Agent identified above. To be effective, the written counter-notice must include:
o Your physical or electronic signature;
o 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 to it was disabled;
o A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
o Your name, address, electronic mail address (if available), and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located or State of Colorado if your address is outside of the United States and that you will accept service of process from the person or the person’s agent who provided notification of the alleged copyright infringement.
· If a counter-notice is received by KE’s Copyright Agent, KE may send a copy of the counter-notice to the original complaining party (or agent thereof) informing that person that KE may replace the removed Third-Party Submission or cease disabling it in ten (10) business days. Unless the copyright owner (or agent thereof) files an action seeking a court order against the provider of the Third-Party Submission, the removed Third-Party Submission may be replaced or access to it restored in ten (10) to 14 business days or more after receipt of the counter-notice at KE’s sole discretion.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing or that material or activity was removed or disabled by mistake or identification will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider such as or including KE who is injured by such misrepresentation as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing or in replacing the removed material or ceasing to disable access to it. Accordingly, if you are uncertain whether Third-Party Submission infringes your or others’ copyrights, please consult with a copyright attorney prior to making a notice under the DMCA.
17. Miscellaneous Terms
1. Complete Agreement. This Agreement constitutes the entire agreement between you and KE relating to your use of, and access to, this Platform and supersedes any prior or contemporaneous agreements or representations. This Agreement may not be amended except as set forth in Section 1 of this Agreement.
2. Severability. If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible.
3. Headings. Descriptive headings contained in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of this Agreement.
4. No Waivers. Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision.
5. No Assignments and Transfers. No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
6. No Third Party Beneficiaries. Nothing in this Agreement will confer upon any person, other than the parties, any rights, remedies, obligations, or liabilities whatsoever.
7. Notices. You can provide any notices to us under this Agreement by e-mail or mail using the contact information provided in Section 18 below. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing KE with up-to-date contact information which you may do by updating your account information through the Platform or by sending a message to us via the contact information provided in Section 18 below. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
18. Contact Us
If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail firstname.lastname@example.org.
You may also send us mail at the following address:
KE Fuels, LLC
P.O. Box 0553
Winter Park, CO 80482-0553