Revised: 25 November 2019

These Terms and Conditions of Service (“Terms”) govern your use of the Kymdan (Australia) Pty Ltd (“Kymdan”) website (“Site”), and also Kymdan products you may purchase (“Products”), any Kymdan mobile application, application programming interfaces, and other services offered by Kymdan, as well as services offered through third parties integrating Kymdan functionality (“Services”). Kymdan (“we” or “us”) provides the Site, Products and Services. “You” refers to you as a user of the Site, Products or Services.

BY USING THE SITE OR SERVICES, OR PURCHASING KYMDAN PRODUCTS, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. PLEASE READ THEM CAREFULLY. IF YOU DO NOT ACCEPT THESE TERMS YOU MUST REFRAIN FROM USING THE SITE. THESE TERMS MUST BE READ IN CONJUNCTION WITH ANY OTHER APPLICABLE TERMS AND/OR POLICIES GOVERNING THE USE OF THIS SITE.

1. Eligibility

You must be at least 18 years old to use the Site or the Services or to purchase Products.

Should we suffer any damage or other losses as a result of a transaction entered into by a minor using our Site, we reserve the right to seek compensation for such losses from the parents or guardians of the minor who caused any transactions to be entered into via our Site.

2. Terms of Sale

Offers to Purchase, Sale and Shipping: The Site describes Products for which Kymdan invites you to make an offer of purchase. The description or depiction of Products on the Site does not constitute an offer by Kymdan to sell, and Products may or may not be available for sale when you submit an offer to purchase. If the items are available, and if Kymdan accepts your offer to purchase (following the passing of our internal validation procedures, for the purpose of preventing credit card or payment fraud), a sale contract will arise when Kymdan accepts your offer via website www.kymdan.com.au.

When your offer is accepted, the price you are charged for your purchase (an “Order”) will, unless otherwise expressly stated by Kymdan, include applicable shipping and processing charges and fees (“Fees”). Fees cover the relevant costs of processing your Order; costs of handling and packing any products; and costs of delivering or providing the purchased products and services to you, including insurance during shipping.

After Kymdan has received payment, Kymdan will arrange for a shipping company to deliver them to you.

The products are of Vietnamese origin, manufactured in Vietnam using components and materials from various countries. Kymdan does not guarantee dates of delivery. It will provide an estimated delivery date when your Order is placed, but it makes no promise of date of delivery and will have no liability in the event delivery is delayed for any reason, with or without any fault on the part of the shipping company or others.

Caution: For safety reasons, we only use a door-to-door delivery method for our products.

Title to and risk in the products will pass to you upon the later of: (a) payment in full has been received by us; and (b) delivery from us.

GST

All purchases within Australia will be subject to GST under A New Tax System (Goods and Services Tax) Act 1999.

Inaccuracy and Availability Disclaimer: We make every effort to ensure that product descriptions on our Site are accurate. From time to time, there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your Order). If you do not wish to continue with your Order after pricing or other information has been corrected, please contact us right away and we will work with you to cancel or return your Order.

Details contained on this Site relating to goods or services have been prepared in accordance with Australian law and may not satisfy the laws of any other country. We do not warrant that details on this Site concerning those goods or services will satisfy the laws of any other country. It is your responsibility to determine whether these details satisfy the laws of the jurisdiction where you reside (if that jurisdiction is outside Australia) and if the details do not satisfy the laws of your jurisdiction, you may not order any goods or services from this Site.

We attempt to keep stock of most items listed on our Site. However, we give no undertaking as to the availability of products displayed or advertised on this Site.

Return Policy: You are allowed to return or exchange a Kymdan mattress (Deluxe, Special Deluxe Pillow Top, Special Deluxe Pillow Top Soft, Special Deluxe Pillow Top Cloud, Special Deluxe Pillow Top Royal) provided you have not misused the mattress and pay for shipping and you ship the mattress using UPS or other commercial carrier of comparable reputation and standing within 30 days of receipt to Kymdan Store in Australia. Upon receipt of the mattress our company will confirm that the mattress has not been misused. If we confirm this, we will then exchange it for a new mattress if that was your request, or instead process a refund if you have requested a refund. The amount of the refund will be the original purchase price reduced by 30% to reflect restocking costs and your initial handling or use of the mattress, minus any shipping charge for the return of the mattress that you have not already paid, minus the cash value of any promotional gifts that you received for purchasing the mattress. No exchanges or returns will be accepted after 30 days have passed following your receipt of the mattress.

We do not accept returns of mattress covers or pillows.

LIMITED WARRANTY – REFUND OR REPLACEMENT OF MATTRESSES ONLY, LESS CHARGES:

MATTRESSES (Deluxe, Special Deluxe Pillow Top, Special Deluxe Pillow Top Soft, Special Deluxe Pillow Top Cloud, Special Deluxe Pillow Top Royal) – 15 YEARS FROM ORIGINAL PURCHASE: If you find and report to Kymdan at contactus@kymdan.com within 15 years from the original date of purchase of a Kymdan mattress that the mattress has flattened, stiffened, hardened, crumbled or decayed with no misuse on your part, and the claimed defect is confirmed by Kymdan, then Kymdan will replace the mattress provided you pay a usage charge to reflect the period of use based upon the current retail price at the time you report the defect and the number of months left on the warranty, subject to a minimum usage charge of 20% of the then current retail price plus delivery charges. 

Flattened, stiffened, hardened, crumbled or decayed means that the mattress can no longer return to its original shape immediately after standing, sitting or laying on the mattress for an extended period

The mattress warranty will be invalidated if:

• The mattress is used on a base not recommended or approved by Kymdan for the mattress purchased.
• The mattress is used on a slatted base which has slats more than 3cm (1.18 inches).
• The mattress is used on any type of damaged or unsupportive base.

Kymdan Mattresses (Deluxe, Special Deluxe Pillow Top, Special Deluxe Pillow Top Soft, Special Deluxe Pillow Top Cloud, Special Deluxe Pillow Top Royal) ARE NOT COVERED UNDER WARRANTY for:

• The latex foam of the mattress turns yellow (this color change is a normal characteristic of natural latex).
• Use or maintenance of that did not comply with the User Guide instructions provided in the warranty certificate (see user guide instructions).
• Damage due to any other misuse, including but not limited to:
  • Being exposed to sunlight (due to the deterioration effect of sunlight’s ultraviolet light on natural latex).
  • Soiling or odours from food, liquids or dirt.
  • Damage due to application of excessive forces of 200kg/dm² in any form.
  • Damage due to exposure to heat sources including, but not limited to irons, hot-air hair dryers, heaters, heated blankets, etc.

This mattress warranty is also invalidated if Kymdan finds that the mattress has been misused or used in any other manner that is not

When a mattress is replaced, the new mattress will have a warranty period that is the unexpired warranty period of the original purchase.

Kymdan reserves the right to refuse service when any reported defect is due to causes other than faulty materials or workmanship, or if the item is soiled or in an insanitary condition.

When repairing or replacing items under this warranty, Kymdan reserves the right to substitute alternative materials, or models, should the original no longer be available and cannot undertake to match items not under complaint, with any substitute fabric used.

WARRANTY POLICY FOR KYMDAN BEDS: 10-YEAR WARRANTY

. The entire frame, even damages caused by termites or poor-quality wood.

. The painted wood surface and upholstery (if any) are not covered under warranty.

. Bedside Tables: 10-year warranty

. The glass panel (if any) is not covered under warranty.

WARRANTY POLICY FOR KYMDAN LOUNGE SUITES: 10-YEAR WARRANTY

. The entire frame, even damages caused by termites or poor-quality wood.

. Upholstery material is not covered under warranty.

* Coffee Tables, Armchairs and Ottomans: 10-year warranty

. The entire frame, even damages caused by termites or poor-quality wood.

. The painted wood surface and upholstery (if any) are not covered under warranty.

. The glass panel (if any) is not covered under warranty.

* Seat pads are not covered under warranty.

KYMDAN MAKES NO WARRANTY FOR

Smaller custom sized mattress with width ≤ 60cm or length ≤ 140cm, manufactured according to customer requirements.

Any pillow types (Kymdan Pillows, Kymdan SoftTouch Bolsters, Kymdan LumbarLatex Travel Pillow, Kymdan LumbarLatex Support Pillow)

Kymdan Mattress Covers

Kymdan Bed sheets

Kymdan Mattress Protectors

Kymdan Towels

Kymdan Pillow Covers

Warranty Limitations; Disclaimer and Limitations on Our Liability

YOU USE THE KYMDAN PRODUCTS, WEBSITE AND SERVICES AT YOUR OWN RISK. EXCEPT AS STATED ABOVE ALLOWING CERTAIN REPLACEMENTS OR REFUNDS, THE PRODUCTS, SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR SERVICES. OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE OR SERVICES.

YOU UNDERSTAND AND AGREE THAT ANY PRODUCTS YOU MAY PURCHASE ANDMATERIAL OR INFORMATION YOU MAY DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE USE OF THE SITE OR FROM OUR COMPANY IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR COMPANY OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE DIRECT OR INDIRECT LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR RELATING TO THE SITE, PRODUCTS OR SERVICES, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.

KYMDAN MATTRESSES AND PILLOWS ARE DESIGNED FOR USE BY ADULTS. TO AVOID ACCIDENTAL INJURY OR DEATH OR SUFFOCATION YOU SHOULD NOT USE THEM FOR INFANTS OR TODDLERS. SEE ALSO CLAUSES 12, 13 AND 14 BELOW.

KYMDAN MATTRESSES AND PILLOWS CONTAIN LATEX, RAYON, COTTON AND POLYESTER AND SHOULD NOT BE USED BY PEOPLE ALLERGIC OR SENSITIVE TO LATEX, RAYON, COTTON OR POLYESTER. KYMDAN MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND CONCERNING THE SUITABILITY OF ITS MATTRESSES OR PILLOWS FOR USE BY INDIVIDUALS WITH LATEX, RAYON, COTTON OR POLYESTER ALLERGY OR SENSITIVITY, AND KYMDAN WILL HAVE NO LIABILITY WHATSOEVER IN THE EVENT OF AN IRRITATION, REACTION OR OTHER CONDITION CONCERNING LATEX, RAYON, COTTON OR POLYESTER. SEE ALSO CLAUSES 12, 13 AND 14 BELOW.

KYMDAN MATTRESSES AND PILLOWS ARE NOT MEDICAL DEVICES AND ARE NOT DESIGNED FOR PEOPLE WITH BACK HEAD, NECK OR BACK INJURIES, COND ITIONS OR DISEASES. IF YOU HAVE SUCH AN INJURY, CONDITION OR DISEASE, YOU SHOULD SEEK THE ADVICE OF A MEDICAL PROFESSIONAL CONCERNING WHAT TYPE OF MATTRESS OR PILLOW YOU SHOULD USE. KYMDAN MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND CONCERNING THE SUITABILITY OF ITS MATTRESSES OR PILLOWS FOR USE BY INDIVIDUALS WITH INJURIES, CONDITIONS OR DISEASES AND WILL HAVE NO LIABILITY WHATSOEVER IN THE EVENT OF SUCH INJURY, CONDITION OR DISEASE. SEE ALSO CLAUSES 12, 13 AND 14 BELOW.

Special Offers: Occasionally we will offer special promotions to our customers that we refer to as “special offers.” This can include a gift with purchase, manufacturer offers, or other promotional activity associated with a product purchase. These offers may be for a limited time only.

General Disclaimer:

• The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law guarantee certain conditions, warranties and undertakings, and give you other legal rights, in relation to the quality and fitness for purpose of consumer goods sold in Australia. Nothing in these online Terms modifies, restricts or exclude the conditions, warranties, guarantees and undertakings, liabilities and other legal rights, protected by the Australian Consumer Law and other laws to the extent that such modification, restriction or exclusion would render these Terms or any provision of these Terms to be void, illegal or unenforceable. Except as expressly set out in these online Terms and in the Australian Consumer Law to the extent that they cannot be excluded, restricted or modified:
  • we make no warranties or other representations to you under these online Terms. Our liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.
  • we do not accept responsibility for any loss or damage, however caused (including through negligence), which you may directly or indirectly suffer in connection with your use of this Site or any linked website, nor do we accept any responsibility for any such loss arising out of your use of or reliance on information contained in or accessed through this Site;
  • we do not accept liability to you in respect of any loss or damage (including indirect, special or consequential loss or damage) which may be suffered or incurred by you or which may arise directly or indirectly in respect of goods or services supplied pursuant to or in any way connected with this Site or respect of any failure or omission on our part to comply with our obligations as set out in these Terms.
• Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. Our liability for breach of a guarantee conferred by the Australian Consumer Law in respect of goods or services supplied under these Terms which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, other than those conferred by sections 51 to 53 of that law, is limited (a) in the case of goods, to any one of the following as determined by us: (i)the replacement of the goods or the supply of equivalent goods, or (ii) the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; (b) in the case of services, to any one of the following as determined by us: (i) the supply of the services again, or (ii) the payment of the cost of having the services supplied again.
• We make no express warranties in relation to the suitability for any purpose of goods or materials supplied to you.
• For the purposes of this clause 2, "Australian Consumer Law" means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.

3. Additional Terms

Some of our Services have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using that Service, you agree to the Additional Terms.

4. Acceptable Use of the Site and Services

You are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account. Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Site or Services, you may not:

• violate any law or regulation;
• violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
• post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
• send unsolicited or unauthorized advertising or commercial communications, such as spam;
• engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site or Services;
• transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
• stalk, harass, or harm another individual;
• impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
• use any means to scrape or crawl any Web pages contained in the Site;
• attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Site or Services;
• attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site or Services; or
• advocate, encourage, or assist any third party in doing any of the foregoing.

5. User Content

The Site and some of our Services allow you to upload, submit, store, send, or receive content and data (“User Content”). You retain ownership of any intellectual property rights that you hold in that User Content. In other words, you own your personal data.

When you upload, submit, store, send, or receive User Content to or through the Site or Services, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Services), publicly perform, publicly display, and distribute your User Content. This license is for the limited purpose of operating, promoting, and improving the Site and Services, and to develop new Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Site and Services. In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Site or Services.

You promise that:

• you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and
• your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third

We may refuse to accept or transmit User Content for any reason. We may remove User Content from the Site or Services for any reason.

6. Ownership

Other than User Content, we own or license all right, title, and interest in and to (a) the Site and Services, including all software, text, media, and other content available on the Site and Services (“Our Content”); and (b) our trademarks, logos, and brand elements (“Marks”). The Site and Services, Our Content, and Marks are all protected under Australian and international laws. You should assume that all of the content made available to you through this Site is owned or licensed by us and is protected by copyright or other proprietary rights. The look and feel of the Site and Services are copyright © Kymdan. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from Kymdan.

Nothing contained on this Site is to be interpreted by you as a recommendation or consent to use any information on this Site in a manner which infringes our intellectual property rights or the intellectual property rights of any other person, company or entity. We make no representations or warranties that your use of the information on this Site will not infringe such intellectual property rights.

You may view this Site and its contents for personal and non-commercial use only, and subject to the Copyright Act 1968 (Cth) and similar legislation, you must not in any form or by any means:

• reproduce, modify, distribute, store, transmit, publish or display within another Site or create derivative works from any part of this Site; or
• commercialise any information contained from any part of the Site,

without our prior written permission or, in the case of third party material, from the owner of the copyright in that material.

7. Copyright and Intellectual Property Policy

We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the Copyright Act 1968 (Cth). If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:

• Your address, telephone number, and email address.
• A description of the copyrighted work that you claim has been infringed.
• A description of where the alleged infringing material is located.
• A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
• A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright

          Copyright Agent:

          Kymdan (Australia) Pty Ltd Customer Service Department, reachable at contactus@kymdan.com.

Copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid.

If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:

• Your physical or electronic signature;
• Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of in the Federal Court, and a statement that you will accept service of process from the person who provided notification of the alleged

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.

After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.

8. Privacy

Your privacy is very important to us. Our Privacy Policy explains how we collect, use, protect, and when we share personal information and other data with others. You are responsible for maintaining the confidentiality of your account information, including your username and password. You are responsible for all activities that occur under your account and you agree to notify us immediately of any unauthorized access or use of your account. We are not responsible or liable for any damage or loss related to any unauthorized access or use of your account.

9. Links

The Site and Services may contain links to other websites and online resources. We are not required to maintain or update external sites. A link to a third party’s website does not mean that we endorse it or that we are affiliated with it. We make no warranties and accept no responsibility or liability for any damage or loss related to the use of any third-party website. You should always read the terms and conditions and privacy policy of a third-party website before using it.

10. Changes to the Site or Services

We enhance and update the Site and Services often. We may change or discontinue the Site or Services at any time, with or without notice to you.

11. Termination

We reserve the right to not provide the Site or Services to any person. We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion. If you violate any of these Terms, your permission to use the Site and Services automatically terminates.

12. Indemnification

YOU AGREE TO INDEMNIFY AND HOLD HARMLESS OUR COMPANY AND ITS AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, PROCEEDINGS, DEMANDS, LOSSES, DAMAGES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND LEGAL COSTS) OF ANY KIND OR NATURE, ARISING FROM OR RELATING TO, ANY ACTUAL OR ALLEGED BREACH OF THESE TERMS BY YOU OR ANYONE USING YOUR ACCOUNT. IF WE ASSUME THE DEFENSE OF SUCH A MATTER, YOU WILL REASONABLY COOPERATE WITH US IN SUCH DEFENSE.

13. Arbitration Agreement & Waiver of Certain Rights

You and Kymdan agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and Kymdan hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and Kymdan relating to these Terms, the Products or the Offerings (each a “Claim”), including any Claim based upon tort, or for personal injury or death or any damages or equitable or legal relief, shall be submitted for binding arbitration in New South Wales, Australia in accordance with the Resolution Institute Arbitration Rules ("Arbitration Rules") (as updated from time to time). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.

You further agree that Kymdan’s Vietnamese parent company, Saigon-Kymdan Rubber Stock Company (“Saigon-Kymdan”), is an intended third party beneficiary of this Section 13 and shall be entitled to compel your compliance with this Section 13, including arbitration with Saigon-Kymdan of any and all controversies, claims, counterclaims or other disputes relating to these Terms, the Products or the Offerings under the same rules and on the same terms and conditions as described in this Section 13. Kymdan confirms that it has been authorized by Saigon-Kymdan to act as its agent for the limited purpose of agreeing to this Section 13 and binding Saigon-Kymdan to this Section 13, including arbitration of any and all controversies, claims, counterclaims or other disputes relating to these Terms, the Products or the Offerings under the rules and on the terms and conditions as described in this Section 13. Kymdan is not an agent of Saigon-Kymdan for any purpose other than binding Saigon-Kymdan to this Section 13.

Neither you nor Kymdan, nor Saigon-Kymdan may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be resolved on a class or representative basis.

If any provision of this Section 13 is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 13 shall continue in full force and effect. No waiver of any provision of this Section 13 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms. This Section 13 will survive the termination of your relationship with Kymdan.

THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN ARBITRATION RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR KYMDAN WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.

14. Other Provisions

Under no circumstances will we be held liable for any delay or failure in to comply with these Terms where such failure is due in whole or in part to any acts of nature or other causes beyond our reasonable control. These Terms will be governed by and construed in accordance with the laws of the State of New South Wales in Australia, without giving effect to any conflict of laws rulesor provisions. You agree to submit to the exclusive jurisdiction of the courts of that jurisdiction. This provision shall not limit or reduce the requirement to submit all Claims to binding arbitration as specified in clause 13.

If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.

The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.

We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.

Changes to these Terms: From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Site. Amendment will be effective immediately upon notification on this Site. You should check these Terms regularly for such changes. Your continued use of this Site following such notification will represent an agreement by you to be bound by these Terms as amended.

PLEASE PRINT A COPY OF THESE TERMS FOR YOU RECORDS AND PLEASE CHECK THE SITE FREQUENTLY FOR ANY CHANGES TO THESE TERMS.