Effective Date: August 1, 2021
Welcome to New Kind. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Phone: (267) 797-7094
Address: 1 Letterman Drive, Suite C3500, San Francisco, CA, 94129
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at www.hinewkind.com, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What are the basics of using New Kind?
Virtual Postpartum Doula Services; Role of Postpartum Doula. The Company will engage a doula (the “Doula”) to provide Services to you via text message or phone. The Services shall consist of non-medical, physical, emotional, educational, and family support, and may include: (i) advice and virtual assistance regarding self-care recovery measures, (ii) advice and virtual assistance to you regarding caring and feeding of your new baby (e.g., breastfeeding or bottle-feeding support), (iii) advice and virtual assistance regarding care for both the mother and baby, (iv) advice and virtual assistance regarding general care for newborn babies, including information on comprehending a baby’s cues, infant sleep patterns, soothing techniques, bathing, babywearing, education, sibling support, and partner support.
Limitation of Services. Neither the Company nor the Doula will: (i) physically meet or otherwise interact in person with you, (ii) perform clinical tasks or provide medical care for you such as taking blood pressure, fetal heart checks or vaginal exams, but Doula may advise you to contact your physician, (iii) babysit children or care for adults, (iv) provide transportation, (v) perform any duties that either the Company or Doula determines in its sole discretion are out of scope of Services, or may endanger Doula’s physical well-being, (vi) work on major holidays, such as Thanksgiving, Christmas or New Year’s Day, or (vii) make decisions for you.
Doulas provide education and guidance as part of postpartum and breastfeeding support and do not practice medicine or diagnose and treat postpartum related symptoms. Neither the Company nor any of the Doulas are healthcare providers, doctors, nurses or midwives. Information presented via Doula’s virtual Services is not intended as a substitute for medical advice, diagnosis or treatment. In addition, Doulas do not make specific health claims or promise medical results. Always seek the advice of your physician or other qualified healthcare professional with any questions you have regarding any medical condition or symptom. If you believe you may have a medical emergency, call 911 immediately.
You acknowledge that Doulas will also be providing Services to other customers and personal clients and may not be able to respond immediately to your inquiries.
You hereby agree and acknowledge that: (i) the Company and Doula shall only provide Services to you via text message or phone, (ii) the Services are not risk-free nor is there any guarantee of an emergency-free postpartum experience, and (iii) neither the Company nor Doula will make any decision on your behalf, including, but not limited to, when to seek medical care or the treatment options available to you or your baby.
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
What about messaging?
As part of the Services, you may receive communications through the Services, including messages that New Kind sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want New Kind to send you information regarding your account or transactions with us, which may include New Kind using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from New Kind, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from New Kind. You agree to indemnify and hold New Kind harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not use or interact with the Services in a manner that:
infringes or violates the intellectual property rights or any other rights of anyone else (including New Kind);violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by New Kind;is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;jeopardizes the security of your New Kind User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);attempts, in any manner, to obtain the password, account, or other security information from any other user;violates the security of any computer network, or cracks any passwords or security encryption codes;runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);“crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);copies or stores any significant portion of the Content; ordecompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including New Kind’s) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that New Kind owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by New Kind. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that New Kind is not responsible for such risks.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that New Kind shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that New Kind is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release New Kind, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Will New Kind ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
We may charge a fee for using the Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
a. Paid Services. The Company shall provide Services to you in accordance with the pricing set forth on our Pricing Page <LINK>. Please note that any payment terms presented to you in the process of using or signing up for the Services are deemed part of this Agreement.
c. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. Any agreement you have with your payment provider will govern your use of your Payment Method. If we, either directly or through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
d. Recurring Billing. The Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, PLEASE CONTACT INFO@HINEWKIND.COM.
e. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT). CHANGES TO SUCH INFORMATION CAN BE MADE AT BY CONTACTING INFO@HINEWKIND.COM. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF THE SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED THE SERVICES AS SET FORTH ABOVE.
f. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and the Company shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that the Company may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
g. Auto-Renewal for Paid Services. Unless you opt out of auto-renewal, any Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or terminate the Services at any time, please contact email@example.com. If you terminate the Services, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE SERVICE BY CONTACTING INFO@HINEWKIND.COM. THE SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE COMPANY WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
h. Reaffirmation of Authorization. Your non-termination or continued use of the Services reaffirms that the Company is authorized to charge your Payment Method for the Services. The Company may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Services.
New Kind is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. New Kind has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at firstname.lastname@example.org – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What else do I need to know?
Warranty Disclaimer. New Kind and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (New Kind and all such parties together, the “New Kind Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the New Kind Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The New Kind Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY AND EACH DOULA HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability. IN NO EVENT WILL COMPANY OR DOULA BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL, AGGREGATE LIABILITY OF COMPANY AND DOULA, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) FIVE THOUSAND DOLLARS, OR (ii) THE FEES PAID OR PAYABLE TO THE COMPANY HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Indemnity. You agree to indemnify and hold the New Kind Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with New Kind and limits the manner in which you can seek relief from New Kind. Both you and New Kind acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, New Kind’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
a. Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Francisco County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
b. Costs of Arbitration. The Rules will govern payment of all arbitration fees. New Kind will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. New Kind will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
c. Small Claims Court; Infringement. Either you or New Kind may assert claims, if they qualify, in small claims court in San Francisco County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
d. Waiver of Jury Trial. YOU AND NEW KID WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and New Kind are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and New Kind over whether to vacate or enforce an arbitration award, YOU AND NEW KIND WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
e. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor New Kind is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
f. Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Falafel Labs, Inc., 1 Letterman Drive, Suite C3500, San Francisco, CA, 94129 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
g. Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or New Kind to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and New Kind agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco County, California, or the federal district in which that county falls.
h. Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with New Kind.
Miscellaneous. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the New Kind may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and New Kind agree that these Terms are the complete and exclusive statement of the mutual understanding between you and New Kind, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You may not assign, delegate or transfer this Agreement or your rights or obligations hereunder in any way (by operation of law or otherwise) without the Company’s prior written consent. The Company may transfer, assign, or delegate this Agreement and our rights and obligations without consent. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of New Kind, and you do not have any authority of any kind to bind New Kind in any respect whatsoever.
Except as expressly set forth in the section above regarding the arbitration agreement, you and New Kind agree there are no third-party beneficiaries intended under these Terms.