Terms and Conditions
We donot collect any personally identifiable information (“Personal Information”)from individuals unless specifically provided by the individual. For example,you may voluntarily provide us with Personal Information when you purchaseproducts or services on the Site, provide feedback on our products or services,request any offer or coupon made available on the Site, send questions,solicitations, inquires, critiques or comments to us, apply for a job online,or register for specific online programs, surveys, auctions or othertransactions or activities. You are not required to provide PersonalInformation to access the Site.
PersonalInformation might include: (a) contact information (e.g., name, address, phonenumber, and email address); (b) credit card information (e.g. credit cardnumber); (c) information regarding certain of your preferences related to us orthe Site; and/or (d) information regarding how you became aware of the Site.Personal information also includes information about an individual’sactivities, such as information about his or her activity within the Site, anddemographic information, gender, geographic area, and preferences, when any ofthis information is linked to personal information that identifies thatindividual.
Wemay also collect and store statistics and other non-personal information aboutthe online activities of our visitors on an aggregate basis ("Non-PersonalInformation"). Non-Personal Information is information that wecollect about a group or category of products, services, or users that is notpersonally identifiable or from which individual identities areremoved. It includes non-personal information such as IP Address,browser type, system type, page hits, number of visits, web pages viewed andthe length of visits to the Site. We do not tie Non-Personal Informationto your Personal Information.
Forreasons such as improving your experience at our Site or personalizing our Siteto you (for example, providing better product recommendations or special offersthat we think will interest you), we may supplement the information that youprovide with information from third parties.
ThePersonal Information that you provide will be available to us and KKP, and ourand their agents, representatives and affiliates (collectively, the “ReceivingParties”), as well as our and KKP’s trusted third-party service providers andcontractors (collectively, “Third-Party Providers”). By submittingPersonal Information, you grant to the Receiving Parties and the Third-PartyProviders a license to use such Personal Information for the purposes describedin this section. Personal Information shall be used for thepurposes indicated at the time you voluntarily provide such PersonalInformation. In addition, the Receiving Parties and Third-Party Providersmay also use your Personal Information, alone or in combination with theinformation submitted by other users, to improve the Site’s navigation orinfrastructure, and in internal marketing analyses or reviews.
Wealso might use Non-Personal Information to improve your experience on the Siteand to enhance the Site. By using the Site, you grant the Receiving Parties andany Third Party Provider a perpetual, irrevocable, worldwide, royalty-free,sublicensable (through multiple tiers) license to use, reproduce, cache, store,modify, publicly perform, publicly display, distribute and transmit suchNon-Personal Information for any purpose, and waive any moral rights andpublicity rights in such Non-Personal Information.
We take every reasonable precaution to protect your Personal Information fromloss, misuse, and unauthorized access, disclosure, alteration, or destruction.Please note, that no data security measures can be guaranteed to be completelyeffective and we cannot guaranty the safety or security of yourinformation. You understand that your use of the Site and submission ofinformation to us is at your own risk.
Limits on Our Abilities
Pleasecarefully review this Agreement before accessing or using the Site or theServices. By accessing or using the Site or any of the Services, you accept andagree to be legally bound by this Agreement, as it may be amended orsupplemented from time to time by us (as further described below). Further,certain areas of the Site, including, without limitation, access to product orservice ordering services, may require registration and/or be subject toadditional terms and conditions of use; and we will provide you with notice ofsuch additional terms and conditions on your registration.
Inaddition, offers or coupons made available on the Site might be subject toadditional terms and conditions provided in conjunction with the offer orcoupon. We will provide these terms and conditions to you or post them onthe offers or coupons to which they apply.
2. WeMay Discontinue the Site or the Services at Any Time. We reserve theright, at any time and from time to time, to modify or discontinue, temporarilyor permanently, the Site or the Services, with or without notice to you. Thisincludes the right to modify, discontinue or remove any content, postings,links, pages, services, or other materials at any time and for any reason. Youagree that we will not be liable to you for any modification, generalsuspension or discontinuance of the Site or the Services. We may refuse or restrictanyone from access to any or all of the Site or the Services at any time.
3. Weare an Independent Contractor of KKP. You understand and agree that: althoughKKP may host, develop, maintain or operate the Site on our behalf, we are anindependent contractor operating as a separate legal entity under a franchiseagreement with KKP. You recognize that KKP is merely operating as a third partyservice provider providing advertising services to us and is not, by operating,hosting, maintaining or developing the Site, our partner, joint venturor,principal, employer, employee or agent. We do not have any right to speak foror on behalf of KKP, or to bind KKP to any contracts or obligations. KKP is notresponsible for any of our acts or omissions.
4.Acceptable Use of the Site or the Services. In order to use the Site or theServices, you must obtain access to the World Wide Web directly or throughdevices that access web-based content and pay any and all service fees, if any,associated with such access. In addition, you agree not to: (1) useor access the Site or the Services for any purpose that is unlawful orprohibited by this Agreement; (2) use or access the Site or the Services in amanner that could damage, disable, overburden, or impair the server hosting theSite or the networks connected to any server hosting the Site; (3) interferewith any third party's use and enjoyment of the Site or the Services; or (4)attempt to gain unauthorized access to information, accounts, computer systemsor networks retained on or connected to any server hosting the Site or theServices through hacking, password mining or any other means.
(a)Individual Use. Except as provided in (b) below, you agree that you are onlyauthorized to visit, view and to retain a single copy of pages of Site solelyfor your own individual, non-commercial use,provided that: (a) you keep intactall legal notices, credits, copyright, and other proprietary notices; (b) youdo not use the materials in a manner that suggests an association with any ofour products, services or brands; (c) you make no modifications to thematerials; and (d) you shall not duplicate, download, publish, modify orotherwise distribute any material on the Site for any purpose other than foryour own individual use unless otherwise specifically authorized by us.
(b)Commercial Use. If you wish to publish, frame, referto or provide information about the Site, the Marks, our copyrighted materialsor any Services on any website, web page, e-mail address or the like operatedby you or your affiliates, or any companies, partnerships, limited liabilitypartnerships or any other legal entities which you have an ownership orinvestment interest in (collectively referred to as “you”), you must firstobtain our prior written permission to do so and enter into an agreement withus on terms designated by us. Contact us at the email address provided inSection 17 of this Agreement if you seek to obtain our written permission toaccess the Site for commercial purposes. By “commercial purposes,” we mean anyactivity by you, on your own behalf or on behalf of any customer, forconsideration.
(c)Links. Unless otherwise notified by us, you may create, post, display, publishor distribute any link from your website (the“Linking Website”) to a page(s) ofthe Site (“Linked Page”),provided that you adhere to the following linking policy: (1) any link to a Linked Page must be a textonly link; (2) the wording of the link’sanchor text and any other accompanying text must refer to the content of theLinked Page that you are linking to and must not contain any Prohibited Text(defined below); (3) the appearance, position and other aspects of the link may notbe such as to damage or dilute the goodwill associated with the Marks; (4) the appearance, position and other attributes of the link maynot create the false appearance that theLinking Website or your organization or entity is sponsored by, affiliated with, orassociated with us; (5)when selected by a user, the link must display the LinkedPage asa full-screen and not within a "frame" on the Linking Website; (6) the Linking Website must not replicate anycontent contained on the Linked Page (or any other page of the Site); (7) theLinking Website must not present misleading or false information about us, theSite, or the Services; (8) neither the Linking Website nor the link may use theMarks without our or our licensors’ prior written permission; (9) the LinkingWebsite must not contain Prohibited Content (defined below); and (10) you agreethat wereserve the right to require you to remove the link atany time upon our request. Inthe event we require you to remove your link,you will promptly remove the link from theLinking Website and cease all linking to the Site.
For purposes of this Agreement, theterm “Prohibited Text” includes, but is not limited to, text that is obscene,defamatory, libelous, slanderous, lewd, violent, illegal, offensive,disparaging or includes inappropriate words, abbreviations, language, signs,symbols, references, content or other statements. For purposes of thisAgreement, the term “Prohibited Content” includes, but is not limited to,content that we, in our sole and absolute discretion, determine violates anyapplicable law, as well as, that which (i) promotes, suggests or encourages (a)gambling, including, without limitation, any content related to online casinos,sports books, bingo or poker, (b) the use of firearms/weapons/ammunition, anyillegal drugs, prostitution, pornography, nudity, profanity, or other adultcontent, violence, or the use of alcohol or tobacco products, or (c) the takingup of arms against any person, government or entity, or otherwise challenge orseek to overthrow any government, or (ii) otherwise contains (a) content thatinfringes upon, or otherwise violates, the rights of any third party, includingcopyright, trademark, privacy, publicity or other personal or proprietaryrights, (b) any obscene, defamatory, libelous, slanderous, lewd, violent,illegal, offensive, disparaging or inappropriate words, abbreviations,language, signs, symbols, references, content or statements, (c) content thatis deceptive or fraudulent, (d) hate speech, or other discriminatory,disparaging or denigrating content, whether directed at an individual or agroup, and whether based upon race, age, gender, disability, sexualorientation, ethnicity, religion, political orientation, national origin,citizenship, ancestry, marital status, veteran status or mental or physicaldisability or condition, (e) content that disparages, denigrates, or usesadversarial or confrontational tactics to impact a product, service, person,industry, or organization including, but not limited to, us, (f) content theprimary purpose of which is to advance a religious denomination, expandmembership or encourage conversion, or (g) content advancing a particularpolitical party or candidate or supporting lobbying for any particular party orcandidate, or expanding or encouraging a membership or a particular politicalparty, candidate or lobbying effort.
(d)Security, Cracking and Hacking. You shall not violate or attempt to violate thesecurity of the Site or the Services. Accordingly, you shall not: (i) accessdata or materials not intended for you; (ii) log into a server or account whichyou are not authorized to access; (iii) attempt to probe, scan or test thevulnerability of a system or network or to breach security or authenticationmeasures without proper authorization; or (iv) attempt to interfere withservice to any user, host or network, including without limitation, via meansof submitting a virus to the Site or the Services, or overloading, “flooding,”“mailbombing” or “crashing” the Site or the Services. Violations of system ornetwork security may result in civil or criminal liability. We reserve theright to investigate occurrences which may involve such violations and mayinvolve, and cooperate with, law enforcement authorities in prosecuting userswho have participated in such violations. You understand that data andcommunications, including e-mail and other electronic communications, may beaccessed by unauthorized third parties when communicated over the Internet. Youagree that it is your responsibility, and not ours, to obtain and use thirdparty software products that support encryption and other security protocolscompatible with such protocols (if any) that may be used by us from time totime in connection with the Site or the Services.
(e)Spidering. THE USE OF ANY TOOLS, PROGRAMS, ROBOTIC ALGORITHMS OR PRODUCTS TOAUTOMATICALLY DOWNLOAD OR “SPIDER” THE SITE, ANY OF THE PAGES OF THE SITE ORTHE SERVICES INFRINGES ON OUR COPYRIGHTS. DO NOT USE ANY SUCH TOOLS OR PRODUCTSON OR IN CONNECTION WITHTHE SITE OR THE SERVICES.
(f)Termination. We may and will terminate your access to, and use of, the Site andthe Services immediately, if we believe that your conduct fails to conform withthis Agreement. Upon termination of your access to, and use of, the Siteor the Services, all rights granted to you under this Agreement will ceaseimmediately, and you agree that you will immediately discontinue use of theSite and the Services. Without limiting our rights and your limitationsunder this Agreement, if you use, or attempt to use the Site, the Services, theMarks or our copyrighted materials for any purposes other than its intendedpurposes (including without limitation by tampering, hacking, modifying orotherwise corrupting the security or functionality of the Site or theServices), you may also be subject to civil and criminal liability.
(g)You Are Responsible For All of Your Activities and All of The Content You Post.You represent and warrant that any information you post or provide to us bymeans of the Site, including, without limitation, as part of any registrationor application or to gain access to the Site or any Services, is truthful,accurate, not misleading and offered in good faith. Any information disclosedto you via the Site or the Services including, without limitation, any contentin the personalized areas of the Site, may be used only for its intendedpurpose. We expect that you will exercise caution, good sense and properjudgment in using the Site and the Services. You agree NOT to use the Site orthe Services for or in connection with any of the following activities:
(i)Spoofing or otherwise impersonating any person or entity, including, withoutlimitation, any other users or any of our personnel, or falsely stating orotherwise misrepresenting your identity or affiliation in any way, or forgingany TCP/IP packet header or any part of the header information in any e-mail orother posting;
(iii)E-mailing, uploading, or otherwise transmitting or using the Site or theServices in furtherance of the use or distribution of any unlawful, harmful,harassing, defamatory, tortious, libelous, abusive, threatening, vulgar,sexually explicit, obscene, hateful, racially, ethnically or otherwiseobjectionable material of any kind, or any material that is invasive ofanother’s privacy or exploits children, or transmitting any sexually explicitmaterials, including images and other content; and
(iv)Transmitting material that contains viruses, trojan horses, worms, time bombs,cancelbots or other computer programming routines or engines that are intendedto damage, destroy, disrupt or otherwise impair a computer’s functionality orthe operation of our (or anyone else’s) Services, detrimentally interfere with,surreptitiously intercept or expropriate any system, data or information, ortransmit any materials that otherwise violate our rules or policies.
(h)Account Password and User ID. If you are required to become a registered userof the Site or the Services, you must receive or establish one or morepasswords and accounts in the manner we designate. Maintaining theconfidentiality and security of your passwords and accounts is solely yourresponsibility. Accordingly, you shall maintain the security andconfidentiality of your accounts. Do not divulge your password or accountinformation to any third party. You are entirely responsible for all activitiesthat occur on or through your account(s), and you agree to notify usimmediately about any unauthorized use of accounts or any breach of security.You agree that we shall not be responsible for any losses incurred inconnection with any misuse of or failure to secure passwords, nor shall theyhave any responsibility whatsoever for your failure to comply with thisSection.
(i)Review, Comments, and other Content. You may upload mail lists,pictures, logos, digital signatures, and other graphic or textual content; senddirect mail or email solicitations and other communications; and submitsuggestions, ideas, comments, questions, or other information, so long as youcomply with clause (j) below, and the content is not illegal, obscene,threatening, defamatory, injurious to third parties or objectionable and doesnot consist of or contain software viruses, political campaigning, commercialsolicitation, chain letters, or any form of "spam." You mustalways get written permission from all persons named, identified, referred oralluded to, either explicitly or implicitly, in such content and, if required,provide us with such written permission upon our request. This includesgetting permission from parents or guardians if the person is under the age of18. You may not use a false email address, impersonate any person orentity, or otherwise mislead as to the origin of a card or other content. Wereserve the right (but not the obligation) to remove or edit such content, butwe do not regularly review posted content.
(j)Do Not Violate Third Party Intellectual Property Rights. Without limiting anyof our rights or your obligations under this Agreement, you may not, and byusing the Services or the Site you agree not to, use the Services or the Siteto: (i) transmit material that is copyrighted, unless you are the copyrightowner or have obtained the permission of the copyright owner to transmit it;(ii) transmit material that reveals trade secrets, unless you own them or havethe permission of the owner to so transmit them; or (iii) transmit materialthat infringes on any Intellectual Property Rights (as defined below) of othersor violates the privacy or rights of publicity of others. For purposes ofthis Agreement, the term “Intellectual Property Rights” means, collectively,rights under patent, trademark, copyright and trade secret laws, and any otherintellectual property or proprietary rights recognized in any country or jurisdictionworldwide, including, without limitation, moral rights and similar rights.
(k)Ownership. The trademarks, trade names, logos, color schemes, service marks,slogans, and similar means of identifying products or services displayed on theSite, including without limitation, any variation of the term or phrase “KKP®”(collectively, the “Marks”) and other Intellectual Property Rights are our,KKP’s or our licensors’ registered and/or common law marks or otherIntellectual Property Rights. All content and materials on the Site including,without limitation, the Marks, button icons, images, audio clips, and software,copyrights, patents and other Intellectual Property Rights included in theServices or the Site, are our, KKP’s or our licensors’ property and areprotected by United States and international copyright, patent, trademarks, andother proprietary rights and Intellectual Property Rights laws. The compilationof all content on the Site is our exclusive property and is protected by UnitedStates and international copyright laws. All software used on the Site are ourproperty or our licensors’ property and is protected by United States andinternational copyright laws. Except to the minimum extent otherwise expresslypermitted under copyright law, no copying or exploitation of material from theServices or on the Site is permitted without the express written permission ofus and any other applicable copyright owner. You may not copy, reproduce,republish, upload, post, transmit, sell, distribute, transfer or modify any ofthe content, data, information or materials found on the Site, but you maydownload, display and print one (1) copy of the content displayed on the Siteon a single computer for your personal-non-commercial use (see Section 4(a) above).You will not use the Marks or other Site content on any site, website, webpage, portal, or on any form of advertisement which you operate, authorize orcontrol without our express written permission. You may not use the Marks orcopyrighted materials in any search engine descriptions, content, meta-tags,“white lettering”, key words, or other means of directing or influencing webtraffic to any website, web page, portal or e-mail operated, controlled orauthorized by you without our express written permission and your doing soconstitutes a violation of our rights under United States federal and statelaw, and other international laws and is a breach of this Agreement. You willnot adopt or use any names, slogans, trade names, trademarks, service marks,e-mail addresses, URLs, meta-tags, key words, search descriptions or the likethat are the same or are confusingly similar to the Marks. Without our priorwritten consent, you will not submit or maintain any information submitted tosearch engines which incorporates any content from the Site, the Marks, ourcopyrighted materials or any marks that are confusingly similar to the Marks.You may not resell the Services (or any part thereof). You acknowledge that youdo not acquire any ownership or license rights by virtue of downloading theMarks or copyrighted material from the Services or the Site. All rights notexpressly granted under this Agreement are expressly reserved to us. If youbelieve your rights under applicable copyright laws are being infringed, youmay notify us in accordance with the instructions set forth in Section 16hereof.
6.Submissions. If you do post or send us any comments, suggestions,information, ideas, concepts, knowledge, techniques, content, or materials(collectively, “Submissions”), and unless we indicate otherwise, you grant usand KKP, and our and their agents, representatives and licensees (collectively,the “Receiving Parties”), a nonexclusive, royalty-free, perpetual, irrevocable,and fully sublicensable right to use, reproduce, modify, adapt, publish,translate, create derivative works from, distribute, and display theSubmissions, for any purpose, including developing, manufacturing ormarketing products and/or modifying or improving the Site or theServices, throughout the world in any media. You grant the ReceivingParties, and any of the Receiving Parties’ sublicensees, the right to use thename that you submit in connection with such Submissions, if the ReceivingParties choose.
7.Compliance with Laws. You may use the Services and the Site only for lawfulpurposes. The Services and use of the Site are subject to, and you agree thatyou will at all times comply with, all applicable local, state, provincial,national, and international laws, statutes, rules, regulations, ordinances andthe like applicable to the use of the Services and the Site. This obligationincludes your agreement to comply with all applicable laws, regulations, andrules relating to the export of technical and other data from the United States(and from your country if you are not located in the United States) and youragreement not to export or re-export any such data or any other content ormaterials in violation of such laws, rules or regulations without firstobtaining all necessary licenses, consents and approvals therefor, as well asauthorization from us.
8.Your Access to Certain Services. As a convenience and courtesy to you, inaddition to the Services offered to the general user of the Site, we mayprovide you access to certain webpages of the Site for purpose of contractingwith us to sell products or services to you. If we do so, any offers or salesmade in connection with the use of such webpages will be subject to ourpurchase policies and this Agreement. You acknowledge that your electronicsubmissions constitute your agreement and intent to be bound by the agreementsinto which you thereby enter. Pursuant to any applicable statutes, regulations,rules, ordinances or other laws, including, without limitation, the ElectronicSignatures in Global and National Commerce Act, P.L. 106-229 or other similarstatutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS,APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES ANDRECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE. Further, youhereby waive any rights or requirements under any statutes, regulations, rules,ordinances or other laws in any jurisdiction which requires an original signatureor delivery or retention of non-electronic records, or to payments or thegranting of credits by other than electronic means. You may obtain a copy ofthis Agreement by printing it now at no additional cost to you or by contactingus at the email address provided in Section 17 of this Agreement. We maycharge you up to $10 per copy of this Agreement if you request that we send youadditional copies. In addition, you understand that certain Services on theSite such as a general contents page and a current information page (whichprovides information that may include, without limitation, news of interest tousers of the Site, shipper information and other Services) may includematerials and information from third parties, and you acknowledge and agree thatwe have minimal control over such information. Accordingly, we cannotguarantee, represent or warrant that the content contained in the Site isaccurate, appropriate to you, and/or inoffensive (see Section 5).
9. WeMake No Warranties. YOUR USE OF THE SERVICES AND THE SITE IS AT YOUR SOLE RISK.THE SERVICES AND THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THEOPERATION OF THE SITE OR THE SERVICES OR THE INFORMATION CONTAINED ON THESITE. WE DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY ORFITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OF TITLE,NONINFRINGEMENT, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOMFROM COMPUTER VIRUSES. WE DO NOT WARRANT THAT THE SITE OR SERVICES WILL BEAVAILABLE OR OPERATE IN AN UNINTERRUPTED, DELAY OR ERROR-FREE MANNER(INCLUDING, WITHOUT LIMITATION, ANY ERRORS, DELAY OR INTERRUPTIONS DUE TOPROBLEMS WITH COMMUNICATION LINES OR SYSTEMS, ACTS OF GOD OR FAILURE OF ATELECOMMUNICATIONS SERVICE PROVIDER TO PROVIDE CONNECTIVITY), OR THAT ERRORS ORDEFECTS WILL BE CORRECTED, OR THAT THE SERVER THAT MAKES THE SITE OR SERVICESAVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING VIRUSES. IN ADDITION,WE DO NOT WARRANT THAT INFORMATION AVAILABLE ON OR THROUGH THE SITE INCLUDING,WITHOUT LIMITATION, ESTIMATED FEES BASED ON USER-PROVIDED INPUT, ANY SALESTRANSACTIONS PAGE OR SIMILAR SOFTWARE FUNCTION, ARE APPROPRIATE, ACCURATE,COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR AVAILABLE FOR USE INANY PARTICULAR JURISDICTION, AND ACCESSING THEM FROM JURISDICTIONS WHERE THEIRCONTENTS ARE ILLEGAL IS EXPRESSLY PROHIBITED. SOME JURISDICTIONS DO NOTALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO PORTIONS OF THE FOREGOINGDISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGALRIGHTS, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY FROM PROVINCE TOPROVINCE.
10.Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND KKP,AND OUR AND THEIR EMPLOYEES, DIRECTORS, OFFICERS, OWNERS, SUCCESSORS,ASSIGNEES, LICENSEES, AGENTS, VENDORS, CONTRACTORS AND SUPPLIERS (COLLECTIVELY,“INDEMNIFIED PARTIES”) WILL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON UNDERANY CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, IN TORT (INCLUDINGNEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE, FOR ANY DIRECT,INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGESARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF THESERVICES OR ANY ASPECT OF THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FORLOSS OF PROFITS, GOODWILL, USE, DATA, WORK STOPPAGE, ACCURACY OF RESULTS,COMPUTER FAILURE OR MALFUNCTION, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVEBEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES). TO THEEXTENT THE FOREGOING LIMITATION OF LIABILITY IS, IN WHOLE OR IN PART, HELD TOBE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITYOF THE INDEMNIFIED PARTIES FOR ANY REASON AND UPON ANY CAUSE OF ACTION(INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONSIN CONTRACT OR TORT) ARISING OUT OF OR IN ANY WAY RELATED TO THE SITE OR THIS AGREEMENTSHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED UP TO TWO HUNDRED FIFTYDOLLARS ($250). THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ALIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THELIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE,INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM YOUR USE OR YOUR INABILITYTO USE THE SITE OR SERVICES, OR ANY OTHER MATTER ARISING FROM OR RELATING TOTHE SITE OR THE SERVICES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THEEXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES,THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11.Indemnity. You agree to indemnify and hold harmless the Indemnified Parties,and, at our request, to defend the Indemnified Parties from and against anyclaim, demand, cause of action, debt, loss or liability, including reasonableattorneys’ fees, to the extent that such action is based upon, arises out of,or relates to your use (or inability to use) the Services, any aspect of theSite, your breach of this Agreement, or any other activities of yoursaccomplished using the Services or the Site.
12.Order of Precedence. This Agreement governs your use of the Site and access tothe Services. This Agreement does not modify, alter or amend any otheragreement, if any, you have entered or will enter into with us or any of ourrelated or affiliated entities. To the extent that any provision of thisAgreement, or any supplemental agreement offered as part of any registrationfor additional Services on the Site conflicts with any provision of your otheragreements with us or any of our related or affiliated entities, the terms ofthis Agreement shall control.
13.Dispute Resolution. If a dispute arises out of or relates to this Agreement orits breach (with the exception of rights to injunctive or equitable relief withrespect to Intellectual Property Rights and obligations with respect toconfidentiality), then the dispute shall be resolved in binding arbitration inaccordance with the following procedures: (i) the dispute must be resolved byarbitration administered by the International Court of Arbitration, (ii) anyjudgment on the award rendered by the arbitrator(s) may be entered in any courtof competent jurisdiction, (iii) the location of the arbitration shall bewithin 50 miles of our principal place of business, as identified in Section 17of this Agreement, and (iv) any such controversy or claim shall be arbitratedon an individual basis, and shall not be commenced, conducted or consolidatedin with any claim or controversy of any other party. Notwithstanding theforegoing, we may seek injunctive or equitable relief with respect toIntellectual Property Rights and obligations with respect to confidentialitywith respect to Intellectual Property Rights and obligations with respect toconfidentiality, in any court having proper jurisdiction, and you consent toexclusive jurisdiction and venue in such courts.
14.Choice of Law and Forum. Subject to Section 13, by submitting a registration orby accessing or using the Site or the Services, you and we each agree that thesubstantive laws of the State or Province in which we are located, asidentified in Section 17 of this Agreement, will govern with respect to allmatters relating to or arising from this Agreement, or the use of (or inabilityto use) the Site or the Services, and that such laws will apply without regardto principles of conflict of laws. Subject to the dispute resolution proceduresset forth above, you and we agree and hereby submit to the exclusivejurisdiction and venue of the appropriate state, provincial and federal courtslocated within 50 miles of our principal place of business, as identified inSection 17 of this Agreement, with respect to such matters. Regardless of anystatute or law to the contrary, any claim or cause of action arising out of orrelated to the Site or the Services must be filed or otherwise commenced withinone (1) year after such claim or cause of action arose or be foreverbarred.
15.Miscellaneous Terms. Subject to the terms of this Agreement and our otheroperating rules and policies for the Site and the Services, this Agreementconstitutes the entire agreement between you and us with respect to the subjectmatter addressed herein, and governs your use of the Site and the Services,superseding any prior agreements between you and us relating to such subject matter,but this Agreement may be supplemented by any other agreement you enter intowith us pursuant to a registration to access certain features of the Site.Neither the course of conduct between the parties nor trade practices shall actto modify this Agreement. We may assign our rights and duties hereunderto any party without any notice to you. You may not assign this Agreementwithout our prior written consent. The failure of us to exercise orenforce any right or provision of this Agreement shall not constitute a waiverof such right or provision. If any provision of this Agreement is found by acourt of competent jurisdiction to be invalid, the parties nevertheless agreethat the court should endeavor to give effect to the parties’ intentions as reflectedin the provision, and that the other provisions of this Agreement remain infull force and effect. The section headings used in this Agreement are forconvenience only and have no legal or contractual effect.
Withoutlimiting the foregoing, the Services and the Site are not intended for use byor availability to minors. IF YOU ARE NOT LEGALLY AN ADULT UNDER THE LAW WHEREYOU LIVE OR IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE, YOU MAY NOT ACCESS THESITE OR USE THE SERVICES. IF SO, PLEASE IMMEDIATELY DISCONTINUE USE OF THESERVICES AND DO NOT ACCESS THE SITE.
16. CopyrightNotice and Takedown Policy Notice and Procedure for Making Claims of CopyrightInfringement. Pursuant to Title 17, United States Code, Section512(c)(2), notifications of claimed copyright infringement should be sent to usat the address indicated below in Section 17.
WECAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINEMATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESEINCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BYANY COPYRIGHT OWNER, OR OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSOBE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
- an electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed, and a description of the infringing activity including of where the material that you claim is infringing is located on the Site sufficient to allow us to locate the material;
- identification of the location where the original or an authorized copy of the copyrighted work exists, for example the URL of the website where it is posted or the name of the book in which it has been published;
- your address, telephone number, and e-mail address;
- a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
17.Questions, Comments or Concerns. If you have any questions, comments, orconcerns regarding this Agreement, including, without limitation, the PrivacyPolicy, and/or the Site or Services, or are providing notification of claimedcopyright infringement in accordance with Section 16 above, please contact usbelow:
Attention: Tony Cimbron & GuidaAntunes
1030 Speers Road