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Last updated: October 31, 2019
By accessing or using the Site or the Services, you agree that these Terms shall apply to your access and use of the Site and Services and that you shall be bound by the Terms set forth herein.
If you don’t agree, then you may not access or use the Site or the Services. If you are accessing and using the Site or Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
CHANGES TO THESE TERMS OR THE SERVICES
We can change these Terms at any time. If we do so, we’ll let you know either by posting the changed Terms on the Site or through other communications. We’ll also update the “Last Updated Date” at the top of these Terms. It’s important that you review the changed Terms, because if you continue to access and use the Site or the Services after we’ve provided notice of the change, you’re telling us that you agree to be bound by the changed Terms. If you don’t agree to be bound by the changed Terms, then you’re not permitted to access or use the Site or the Services anymore. We’re always striving to make the Site and Services better, and, because they’re evolving over time, we may change or discontinue all or any part of the Site or Services, at any time and without notice, at our discretion.
USING THE SERVICES
You are not permitted to access or use the Services unless you are eighteen (18) years old or older.
In order to recieve certain Services, you may need to create an account with a username and password (an “Account”).
It’s important that you provide us with accurate and complete information, and you promise to keep your Account information up to date. If you don’t, we may have to suspend or terminate your Account. You agree not to share your password and you’ll let us know if you become aware of any unauthorized use of your Account. You are responsible for all activities that occur under your Account.
You may be able to authorize additional users to use your account (“Authorized Users”). You are responsible for the conduct of any Authorized Users on your Account.
You are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable license for you and your Authorized Users to access and use the Site and Services in accordance with these Terms. No other intellectual property rights of any kind are granted by Kintaba to you as a function of these Terms.
As between you and Kintaba, Kintaba owns all rights in and to the Site and Services. Kintaba retains all rights to all works (including source code, object code, user interfaces, documentation, or other works), algorithms, data, inventions, discoveries, ideas, designs, trade secrets, tangible or intangible, embodied in the Services or the Site, or created or reduced to practice in performance of the Services, including without limitation all copyrights, patent rights, trade secret rights, trademark rights, moral rights, and other intellectual property rights to and in the Site and the Services in the United States and all other countries, including the right to pursue patents, utility models, or industrial design applications in the United States and all other countries. Kintaba does not transfer any rights to any portion of the Site or the Services to you or any third party, and delivery of any Services to you shall not constitute any transfer of rights.
The Kintaba name, the Kintaba logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Kintaba or its affiliates or licensors. You must not use such marks without the prior written permission of Kintaba.
You will be responsible to pay the total purchase price for your access and use of the Services as set forth on the Site or in other communications to you by Kintaba. Such prices may include or be subject to additional applicable tariffs, customs, duties, or taxes (including any value-added taxes).
USER CONTENT AND DATA
“User Content and Data” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information, or other materials, or data that is posted, generated, provided, or otherwise made available by you for your use on the Site or the Services.
Kintaba does not claim any ownership rights in any User Content Data and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content and Data. You grant Kintaba a limited license in your User Content and Data solely for the purpose of providing the Services to you. No other rights in User Content and Data are granted by you to Kintaba as a function of these terms.
You are solely responsible for all your User Content and Data. You represent and warrant that you own all your User Content and Data, or you have all rights that are necessary to grant us the license rights in your User Content and Data under these Terms. You also represent and warrant that neither your User Content and Data, nor your use and provision of your User Content and Data, nor any use of your User Content and Data by Kintaba on or through the Site or Services will infringe, misappropriate, or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
We welcome your input for improvements to the Site and Services. If you decide to provide ideas, comments, suggestions or other feedback to us (whether written, verbal, or in any other format) in connection with the Site, Services, or these Terms (“Feedback”), you acknowledge and agree that we have no obligation (whether of confidentiality, compensation, or otherwise) with respect to such Feedback and we will be free to use and exploit such Feedback in any manner without restriction of any kind. You agree that all Feedback will be the sole and exclusive property of Kintaba. You hereby agree to irrevocably transfer and assign to Kintaba all of your rights, title, and interest in and to all Feedback, including all intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain our intellectual property rights and other legal protections for the Feedback. Further, you acknowledge and agree that Kintaba may currently, or in the future, be developing information and materials internally, or receiving information and materials from other parties, that are similar to your Feedback or User Content. Nothing in these Terms will be construed as a representation or agreement that we will not develop or have developed, distribute, market or promote applications, services, products, or concepts that are similar to and/or compete with the applications, services, products, or concepts contemplated by or embodied in any Feedback or your User Content and Data.
You agree that you’ll only use the Site and Services in a manner that is consistent with the requirements set forth below. If you don’t, we may choose to suspend or terminate your Account and your access to and ability to use the Services. In connection with your use of the Site and Services, you agree that you won’t:
• Use the Site or 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 US or other countries);
• copy, store, or otherwise access any information contained on/in the Site or Service for purposes not expressly permitted by these Terms or that would violate any laws;
• interfere with or damage the Site or Services including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
• use the Site or Services to collect or process any personal information in a manner that would violate any applicable data privacy laws or regulations, including without limitation, the European Union’s General Data Privacy Regulation (GDPR) and the California Consumer Privacy Act (CCPA);
• register an Account under a false name or use an invalid or unauthorized credit card. You may not offer to purchase under a false name, impersonate any participant, or use another participant’s password(s) or engage in any other fraudulent conduct or conduct intended to interfere with the orderly conduct of business on the Site or Services;
• post, upload, publish, submit, or transmit any User Content and Data that: (a) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy in any jurisdiction in the world; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) is fraudulent, false, misleading, or deceptive; (d) is defamatory, obscene, pornographic, vulgar, or offensive; (e) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; or (f) is violent or threatening or promotes violence or actions that are threatening to any other person.
THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, KINTABA EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, CONTRACT, OR ANY OTHER BASIS. KINTABA MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
LIMITATION OF LIABILITY:
YOU ACKNOWLEDGE AND AGREE THAT, AS BETWEEN YOU AND KINTABA, TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU ASSUME THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE AND SERVICES.
KINTABA WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE ,OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KINTABA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Indemnification of you by Kintaba
Kintaba will defend and hold you harmless from and against any and all third party claims, actions, suits, proceedings, and demands (“Claims”) alleging that the use of the Site or Services as permitted under the Terms infringes or misappropriates a third party’s intellectual property rights, and will indemnify you for all reasonable attorney’s fees incurred and damages and other costs arising from such a Claim against you; provided, however, that we will have no liability if a Claim arises from or is related to (a) User Content and Data, (b) any use of the Services with unauthorized third-party products or services; and (c) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). You must provide us with prompt written notice of any Claim and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and your exclusive remedy against us and Kintaba or any its affiliates for, any Claim.
Indemnification of Kintaba by you
You will defend and hold harmless Kintaba, its affiliates, and each of their investors, directors, officers, employees, attorneys, and agents (collectively, the “Kintaba Indemnified Parties”) from and against any and all third party Claims arising from or related to your or any of your Authorized Users’ violation of the Terms, and will indemnify the Kintaba Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs arising from such a Claim. We must provide you with prompt written notice of any such Claim and allow you the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting your defense and settlement of such matter. This section states your sole liability with respect to, and the Kintaba Indemnified Parties’ exclusive remedy against you for, any Claim.
Limitations on Indemnifications
Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
GOVERNING LAW; VENUE
These Terms will be governed by and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of laws. Any and all disputes arising from or related to these Terms shall be adjudicated in the state or federal courts of New York, New York, and you and Kintaba each hereby consent and submit to the exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
You may not assign or transfer these Terms, by operation of law or otherwise, without Kintaba’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be void ab initio. Kintaba may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by Kintaba under these Terms, including those regarding modifications to these Terms, will be given: (i) via email or through your Account; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
KINTABA’s failure to enforce any right or provision of these Terms will not be considered a waiver of future enforcement of that right or provision or of any other right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Kintaba. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.