Terms & Conditions
We do not 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 purchase products 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 other transactions or activities. You are not required to provide Personal Information to access the Site.
Personal Information might include: (a) contact information (e.g., name, address, phone number, and email address); (b) credit card information (e.g. credit card number); (c) information regarding certain of your preferences related to us or the Site; and/or (d) information regarding how you became aware of the Site. Personal information also includes information about an individual’s activities, such as information about his or her activity within the Site, and demographic information, gender, geographic area, and preferences, when any of this information is linked to personal information that identifies that individual.
We may also collect and store statistics and other non-personal information about the online activities of our visitors on an aggregate basis ("Non-Personal Information"). Non-Personal Information is information that we collect about a group or category of products, services, or users that is not personally identifiable or from which individual identities are removed. It includes non-personal information such as IP Address, browser type, system type, page hits, number of visits, web pages viewed and the length of visits to the Site. We do not tie Non-Personal Information to your Personal Information.
For reasons such as improving your experience at our Site or personalizing our Site to you (for example, providing better product recommendations or special offers that we think will interest you), we may supplement the information that you provide with information from third parties.
The Personal Information that you provide will be available to us and KKP, and our and their agents, representatives and affiliates (collectively, the “Receiving Parties”), as well as our and KKP’s trusted third-party service providers and contractors (collectively, “Third-Party Providers”). By submitting Personal Information, you grant to the Receiving Parties and the Third-Party Providers a license to use such Personal Information for the purposes described in this section. Personal Information shall be used for the purposes indicated at the time you voluntarily provide such Personal Information. In addition, the Receiving Parties and Third-Party Providers may also use your Personal Information, alone or in combination with the information submitted by other users, to improve the Site’s navigation or infrastructure, and in internal marketing analyses or reviews.
We also might use Non-Personal Information to improve your experience on the Site and to enhance the Site. By using the Site, you grant the Receiving Parties and any 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 such Non-Personal Information for any purpose, and waive any moral rights and publicity rights in such Non-Personal Information.
We take every reasonable precaution to protect your Personal Information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. Please note, that no data security measures can be guaranteed to be completely effective and we cannot guaranty the safety or security of your information. You understand that your use of the Site and submission of information to us is at your own risk.
Limits on Our Abilities
Please carefully review this Agreement before accessing or using the Site or the Services. By accessing or using the Site or any of the Services, you accept and agree to be legally bound by this Agreement, as it may be amended or supplemented from time to time by us (as further described below). Further, certain areas of the Site, including, without limitation, access to product or service ordering services, may require registration and/or be subject to additional terms and conditions of use; and we will provide you with notice of such additional terms and conditions on your registration.
In addition, offers or coupons made available on the Site might be subject to additional terms and conditions provided in conjunction with the offer or coupon. We will provide these terms and conditions to you or post them on the offers or coupons to which they apply.
2. We May Discontinue the Site or the Services at Any Time. We reserve the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, the Site or the Services, with or without notice to you. This includes the right to modify, discontinue or remove any content, postings, links, pages, services, or other materials at any time and for any reason. You agree that we will not be liable to you for any modification, general suspension or discontinuance of the Site or the Services. We may refuse or restrict anyone from access to any or all of the Site or the Services at any time.
3. We are an Independent Contractor of KKP. You understand and agree that: although KKP may host, develop, maintain or operate the Site on our behalf, we are an independent contractor operating as a separate legal entity under a franchise agreement with KKP. You recognize that KKP is merely operating as a third party service 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 for or on behalf of KKP, or to bind KKP to any contracts or obligations. KKP is not responsible for any of our acts or omissions.
4. Acceptable Use of the Site or the Services. In order to use the Site or the Services, you must obtain access to the World Wide Web directly or through devices 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) use or access the Site or the Services for any purpose that is unlawful or prohibited by this Agreement; (2) use or access the Site or the Services in a manner that could damage, disable, overburden, or impair the server hosting the Site or the networks connected to any server hosting the Site; (3) interfere with any third party's use and enjoyment of the Site or the Services; or (4) attempt to gain unauthorized access to information, accounts, computer systems or networks retained on or connected to any server hosting the Site or the Services through hacking, password mining or any other means.
(a) Individual Use. Except as provided in (b) below, you agree that you are only authorized to visit, view and to retain a single copy of pages of Site solely for your own individual, non-commercial use,provided that: (a) you keep intact all legal notices, credits, copyright, and other proprietary notices; (b) you do not use the materials in a manner that suggests an association with any of our products, services or brands; (c) you make no modifications to the materials; and (d) you shall not duplicate, download, publish, modify or otherwise distribute any material on the Site for any purpose other than for your own individual use unless otherwise specifically authorized by us.
(b) Commercial Use. If you wish to publish, frame, refer to or provide information about the Site, the Marks, our copyrighted materials or any Services on any website, web page, e-mail address or the like operated by you or your affiliates, or any companies, partnerships, limited liability partnerships or any other legal entities which you have an ownership or investment interest in (collectively referred to as “you”), you must first obtain our prior written permission to do so and enter into an agreement with us on terms designated by us. Contact us at the email address provided in Section 17 of this Agreement if you seek to obtain our written permission to access the Site for commercial purposes. By “commercial purposes,” we mean any activity by you, on your own behalf or on behalf of any customer, for consideration.
(c) Links. Unless otherwise notified by us, you may create, post, display, publish or distribute any link from your website (the “Linking Website”) to a page(s) of the Site (“Linked Page”), provided that you adhere to the following linking policy: (1) any link to a Linked Page must be a text only link; (2) the wording of the link’s anchor text and any other accompanying text must refer to the content of the Linked 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 not be such as to damage or dilute the goodwill associated with the Marks; (4) the appearance, position and other attributes of the link may not create the false appearance that the Linking Website or your organization or entity is sponsored by, affiliated with, or associated with us; (5) when selected by a user, the link must display the Linked Page as a full-screen and not within a "frame" on the Linking Website; (6) the Linking Website must not replicate any content contained on the Linked Page (or any other page of the Site); (7) the Linking Website must not present misleading or false information about us, the Site, or the Services; (8) neither the Linking Website nor the link may use the Marks without our or our licensors’ prior written permission; (9) the Linking Website must not contain Prohibited Content (defined below); and (10) you agree that we reserve the right to require you to remove the link at any time upon our request. In the event we require you to remove your link, you will promptly remove the link from the Linking Website and cease all linking to the Site.
For purposes of this Agreement, the term “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 this Agreement, the term “Prohibited Content” includes, but is not limited to, content that we, in our sole and absolute discretion, determine violates any applicable 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, any illegal drugs, prostitution, pornography, nudity, profanity, or other adult content, violence, or the use of alcohol or tobacco products, or (c) the taking up of arms against any person, government or entity, or otherwise challenge or seek to overthrow any government, or (ii) otherwise contains (a) content that infringes upon, or otherwise violates, the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights, (b) any obscene, defamatory, libelous, slanderous, lewd, violent, illegal, offensive, disparaging or inappropriate words, abbreviations, language, signs, symbols, references, content or statements, (c) content that is deceptive or fraudulent, (d) hate speech, or other discriminatory, disparaging or denigrating content, whether directed at an individual or a group, and whether based upon race, age, gender, disability, sexual orientation, ethnicity, religion, political orientation, national origin, citizenship, ancestry, marital status, veteran status or mental or physical disability or condition, (e) content that disparages, denigrates, or uses adversarial or confrontational tactics to impact a product, service, person, industry, or organization including, but not limited to, us, (f) content the primary purpose of which is to advance a religious denomination, expand membership or encourage conversion, or (g) content advancing a particular political party or candidate or supporting lobbying for any particular party or candidate, or expanding or encouraging a membership or a particular political party, candidate or lobbying effort.
(d) Security, Cracking and Hacking. You shall not violate or attempt to violate the security of the Site or the Services. Accordingly, you shall not: (i) access data or materials not intended for you; (ii) log into a server or account which you are not authorized to access; (iii) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (iv) attempt to interfere with service to any user, host or network, including without limitation, via means of submitting a virus to the Site or the Services, or overloading, “flooding,” “mailbombing” or “crashing” the Site or the Services. Violations of system or network security may result in civil or criminal liability. We reserve the right to investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You understand that data and communications, including e-mail and other electronic communications, may be accessed by unauthorized third parties when communicated over the Internet. You agree that it is your responsibility, and not ours, to obtain and use third party software products that support encryption and other security protocols compatible with such protocols (if any) that may be used by us from time to time in connection with the Site or the Services.
(e) Spidering. THE USE OF ANY TOOLS, PROGRAMS, ROBOTIC ALGORITHMS OR PRODUCTS TO AUTOMATICALLY DOWNLOAD OR “SPIDER” THE SITE, ANY OF THE PAGES OF THE SITE OR THE SERVICES INFRINGES ON OUR COPYRIGHTS. DO NOT USE ANY SUCH TOOLS OR PRODUCTS ON OR IN CONNECTION WITH THE SITE OR THE SERVICES.
(f) Termination. We may and will terminate your access to, and use of, the Site and the Services immediately, if we believe that your conduct fails to conform with this Agreement. Upon termination of your access to, and use of, the Site or the Services, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately discontinue use of the Site and the Services. Without limiting our rights and your limitations under this Agreement, if you use, or attempt to use the Site, the Services, the Marks or our copyrighted materials for any purposes other than its intended purposes (including without limitation by tampering, hacking, modifying or otherwise corrupting the security or functionality of the Site or the Services), 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 by means of the Site, including, without limitation, as part of any registration or application or to gain access to the Site or any Services, is truthful, accurate, not misleading and offered in good faith. Any information disclosed to you via the Site or the Services including, without limitation, any content in the personalized areas of the Site, may be used only for its intended purpose. We expect that you will exercise caution, good sense and proper judgment in using the Site and the Services. You agree NOT to use the Site or the Services for or in connection with any of the following activities:
(i) Spoofing or otherwise impersonating any person or entity, including, without limitation, any other users or any of our personnel, or falsely stating or otherwise misrepresenting your identity or affiliation in any way, or forging any TCP/IP packet header or any part of the header information in any e-mail or other posting;
(iii) E-mailing, uploading, or otherwise transmitting or using the Site or the Services 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 otherwise objectionable material of any kind, or any material that is invasive of another’s privacy or exploits children, or transmitting any sexually explicit materials, 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 intended to damage, destroy, disrupt or otherwise impair a computer’s functionality or the operation of our (or anyone else’s) Services, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or transmit any materials that otherwise violate our rules or policies.
(h) Account Password and User ID. If you are required to become a registered user of the Site or the Services, you must receive or establish one or more passwords and accounts in the manner we designate. Maintaining the confidentiality and security of your passwords and accounts is solely your responsibility. Accordingly, you shall maintain the security and confidentiality of your accounts. Do not divulge your password or account information to any third party. You are entirely responsible for all activities that occur on or through your account(s), and you agree to notify us immediately about any unauthorized use of accounts or any breach of security. You agree that we shall not be responsible for any losses incurred in connection with any misuse of or failure to secure passwords, nor shall they have any responsibility whatsoever for your failure to comply with this Section.
(i) Review, Comments, and other Content. You may upload mail lists, pictures, logos, digital signatures, and other graphic or textual content; send direct mail or email solicitations and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as you comply with clause (j) below, and the content is not illegal, obscene, threatening, defamatory, injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, or any form of "spam." You must always get written permission from all persons named, identified, referred or alluded to, either explicitly or implicitly, in such content and, if required, provide us with such written permission upon our request. This includes getting permission from parents or guardians if the person is under the age of 18. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. We reserve the right (but not the obligation) to remove or edit such content, but we do not regularly review posted content.
(j) Do Not Violate Third Party Intellectual Property Rights. Without limiting any of our rights or your obligations under this Agreement, you may not, and by using the Services or the Site you agree not to, use the Services or the Site to: (i) transmit material that is copyrighted, unless you are the copyright owner or have obtained the permission of the copyright owner to transmit it; (ii) transmit material that reveals trade secrets, unless you own them or have the permission of the owner to so transmit them; or (iii) transmit material that infringes on any Intellectual Property Rights (as defined below) of others or violates the privacy or rights of publicity of others. For purposes of this Agreement, the term “Intellectual Property Rights” means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, 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 the Site, 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 other Intellectual 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 the Services or the Site, are our, KKP’s or our licensors’ property and are protected by United States and international copyright, patent, trademarks, and other proprietary rights and Intellectual Property Rights laws. The compilation of all content on the Site is our exclusive property and is protected by United States and international copyright laws. All software used on the Site are our property or our licensors’ property and is protected by United States and international copyright laws. Except to the minimum extent otherwise expressly permitted under copyright law, no copying or exploitation of material from the Services or on the Site is permitted without the express written permission of us and any other applicable copyright owner. You may not copy, reproduce, republish, upload, post, transmit, sell, distribute, transfer or modify any of the content, data, information or materials found on the Site, but you may download, display and print one (1) copy of the content displayed on the Site on 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, web page, portal, or on any form of advertisement which you operate, authorize or control without our express written permission. You may not use the Marks or copyrighted materials in any search engine descriptions, content, meta-tags, “white lettering”, key words, or other means of directing or influencing web traffic to any website, web page, portal or e-mail operated, controlled or authorized by you without our express written permission and your doing so constitutes a violation of our rights under United States federal and state law, and other international laws and is a breach of this Agreement. You will not adopt or use any names, slogans, trade names, trademarks, service marks, e-mail addresses, URLs, meta-tags, key words, search descriptions or the like that are the same or are confusingly similar to the Marks. Without our prior written consent, you will not submit or maintain any information submitted to search engines which incorporates any content from the Site, the Marks, our copyrighted materials or any marks that are confusingly similar to the Marks. You may not resell the Services (or any part thereof). You acknowledge that you do not acquire any ownership or license rights by virtue of downloading the Marks or copyrighted material from the Services or the Site. All rights not expressly granted under this Agreement are expressly reserved to us. If you believe your rights under applicable copyright laws are being infringed, you may notify us in accordance with the instructions set forth in Section 16 hereof.
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 us and 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 the Submissions, for any purpose, including developing, manufacturing or marketing products and/or modifying or improving the Site or the Services, throughout the world in any media. You grant the Receiving Parties, and any of the Receiving Parties’ sublicensees, the right to use the name that you submit in connection with such Submissions, if the Receiving Parties choose.
7. Compliance with Laws. You may use the Services and the Site only for lawful purposes. The Services and use of the Site are subject to, and you agree that you will at all times comply with, all applicable local, state, provincial, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to the use of the Services and the Site. This obligation includes your agreement to comply with all applicable laws, regulations, and rules 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 your agreement not to export or re-export any such data or any other content or materials in violation of such laws, rules or regulations without first obtaining all necessary licenses, consents and approvals therefor, as well as authorization from us.
8. Your Access to Certain Services. As a convenience and courtesy to you, in addition to the Services offered to the general user of the Site, we may provide you access to certain webpages of the Site for purpose of contracting with us to sell products or services to you. If we do so, any offers or sales made in connection with the use of such webpages will be subject to our purchase policies and this Agreement. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by the agreements into which you thereby enter. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. You may obtain a copy of this Agreement by printing it now at no additional cost to you or by contacting us at the email address provided in Section 17 of this Agreement. We may charge you up to $10 per copy of this Agreement if you request that we send you additional copies. In addition, you understand that certain Services on the Site such as a general contents page and a current information page (which provides information that may include, without limitation, news of interest to users of the Site, shipper information and other Services) may include materials and information from third parties, and you acknowledge and agree that we have minimal control over such information. Accordingly, we cannot guarantee, represent or warrant that the content contained in the Site is accurate, appropriate to you, and/or inoffensive (see Section 5).
9. We Make 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 THE OPERATION OF THE SITE OR THE SERVICES OR THE INFORMATION CONTAINED ON THE SITE. WE DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OF TITLE, NONINFRINGEMENT, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUSES. WE DO NOT WARRANT THAT THE SITE OR SERVICES WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED, DELAY OR ERROR-FREE MANNER (INCLUDING, WITHOUT LIMITATION, ANY ERRORS, DELAY OR INTERRUPTIONS DUE TO PROBLEMS WITH COMMUNICATION LINES OR SYSTEMS, ACTS OF GOD OR FAILURE OF A TELECOMMUNICATIONS SERVICE PROVIDER TO PROVIDE CONNECTIVITY), OR THAT ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE SERVER THAT MAKES THE SITE OR SERVICES AVAILABLE 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 SALES TRANSACTIONS PAGE OR SIMILAR SOFTWARE FUNCTION, ARE APPROPRIATE, ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION, AND ACCESSING THEM FROM JURISDICTIONS WHERE THEIR CONTENTS ARE ILLEGAL IS EXPRESSLY PROHIBITED. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO PORTIONS OF THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY FROM PROVINCE TO PROVINCE.
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 UNDER ANY CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF THE SERVICES OR ANY ASPECT OF THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES). TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, IN WHOLE OR IN PART, HELD TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF THE INDEMNIFIED PARTIES FOR ANY REASON AND UPON ANY CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONS IN CONTRACT OR TORT) ARISING OUT OF OR IN ANY WAY RELATED TO THE SITE OR THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED UP TO TWO HUNDRED FIFTY DOLLARS ($250). THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM YOUR USE OR YOUR INABILITY TO USE THE SITE OR SERVICES, OR ANY OTHER MATTER ARISING FROM OR RELATING TO THE SITE OR THE SERVICES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION 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 any claim, demand, cause of action, debt, loss or liability, including reasonable attorneys’ 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 the Site, your breach of this Agreement, or any other activities of yours accomplished using the Services or the Site.
12. Order of Precedence. This Agreement governs your use of the Site and access to the Services. This Agreement does not modify, alter or amend any other agreement, if any, you have entered or will enter into with us or any of our related or affiliated entities. To the extent that any provision of this Agreement, or any supplemental agreement offered as part of any registration for additional Services on the Site conflicts with any provision of your other agreements with us or any of our related or affiliated entities, the terms of this Agreement shall control.
13. Dispute Resolution. If a dispute arises out of or relates to this Agreement or its breach (with the exception of rights to injunctive or equitable relief with respect to Intellectual Property Rights and obligations with respect to confidentiality), then the dispute shall be resolved in binding arbitration in accordance with the following procedures: (i) the dispute must be resolved by arbitration administered by the International Court of Arbitration, (ii) any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction, (iii) the location of the arbitration shall be within 50 miles of our principal place of business, as identified in Section 17 of this Agreement, and (iv) any such controversy or claim shall be arbitrated on an individual basis, and shall not be commenced, conducted or consolidated in with any claim or controversy of any other party. Notwithstanding the foregoing, we may seek injunctive or equitable relief with respect to Intellectual Property Rights and obligations with respect to confidentiality with respect to Intellectual Property Rights and obligations with respect to confidentiality, in any court having proper jurisdiction, and you consent to exclusive jurisdiction and venue in such courts.
14. Choice of Law and Forum. Subject to Section 13, by submitting a registration or by accessing or using the Site or the Services, you and we each agree that the substantive laws of the State or Province in which we are located, as identified in Section 17 of this Agreement, will govern with respect to all matters relating to or arising from this Agreement, or the use of (or inability to use) the Site or the Services, and that such laws will apply without regard to principles of conflict of laws. Subject to the dispute resolution procedures set forth above, you and we agree and hereby submit to the exclusive jurisdiction and venue of the appropriate state, provincial and federal courts located within 50 miles of our principal place of business, as identified in Section 17 of this Agreement, with respect to such matters. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Site or the Services must be filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred.
15. Miscellaneous Terms. Subject to the terms of this Agreement and our other operating rules and policies for the Site and the Services, this Agreement constitutes the entire agreement between you and us with respect to the subject matter 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 into with us pursuant to a registration to access certain features of the Site. Neither the course of conduct between the parties nor trade practices shall act to modify this Agreement. We may assign our rights and duties hereunder to any party without any notice to you. You may not assign this Agreement without our prior written consent. The failure of us to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of this Agreement remain in full force and effect. The section headings used in this Agreement are for convenience only and have no legal or contractual effect.
Without limiting the foregoing, the Services and the Site are not intended for use by or availability to minors. IF YOU ARE NOT LEGALLY AN ADULT UNDER THE LAW WHERE YOU LIVE OR IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE, YOU MAY NOT ACCESS THE SITE OR USE THE SERVICES. IF SO, PLEASE IMMEDIATELY DISCONTINUE USE OF THE SERVICES AND DO NOT ACCESS THE SITE.
16. Copyright Notice and Takedown Policy Notice and Procedure for Making Claims of Copyright Infringement. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to us at the address indicated below in Section 17.
WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE 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.
Attention: Sean Lewis
920 Brant Street, Unit 18 & 19