Last updated: 4-23-18
THESE TERMS AND CONDITIONS (THE “AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU AND KII CORPORATION, AND ITS AFFILIATES, INCLUDING KII, INC. (“US,” “OUR” OR “WE”), THE OWNER AND OPERATOR OF OUR WEBSITE (THE “SITE”), THE SOFTWARE WE PROVIDE (THE “SOFTWARE”) AND ALL RELATED SERVICES (COLLECTIVELY, THE “SERVICE”). THIS AGREEMENT APPLIES TO ALL VISITORS OR USERS OF THE SITE (THE “VISITORS”), AND ALL CUSTOMERS WHO USE THE SERVICE (THE “CUSTOMERS”).
THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND SERVICE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THIS SITE AND SERVICE.
1. MODIFICATIONS AND CHANGES
1.1 Changes. We reserve the right at any time and without prior notice, to:
1.1.1 Add to, change or remove any part, term or condition of this Agreement;
1.1.2 Change the Site or Service, including by eliminating, modifying or discontinuing any content on or feature of the Site or Service, restricting the hours of its availability or limiting the amount of use permitted; or
1.1.3 Change any fees or charges for use of the Site or Service, including instituting new or increased fees or charges for the use of the Site or Service or any feature thereof.
1.2 Notice. We will notify you of changes to this Agreement by changing the “Last Updated” date above, or by providing notice by any other means, including posting a notice that this Agreement has changed on the Site or Service. Your continued use of the Site or Service after such notice constitutes your acceptance of such changes.
2. YOUR ACCOUNT
2.1 Registration. To access certain areas of the Site, and to use the Service, you must register with us through the method designated by us. You may not share your user name and password with any other person or persons.
2.2 Account Security. You are entirely responsible for all activities that occur under your account(s) and for maintaining the confidentiality of your username(s), password(s), and your account(s). In addition, you agree to take adequate measures to safeguard your information and account, including exiting from your account at the end of each session. We are not liable for any loss that you may incur as a result of any unauthorized use of your account and password.
2.3 Account Information. You understand and hereby acknowledge that you have no ownership rights in your account, and that if you cancel your account (or your account is terminated by us in accordance with this Agreement), we may delete and remove all of your account information from any public area of the Site and from the Service, including but not limited to any application data stored on our servers, including cloud servers (the same shall apply hereinafter). Information may continue to be stored on our servers or retained by third parties as cached copies for the convenience of those entities, but will not be accessible to all Visitors and Customers including you after termination of your account.
3. FEES AND PAYMENT
Some Services require payment of fees for use. In consideration of the Service, you will pay us fees indicated by us and shown on this Site or by other methods, pursuant to the payment method designated by us. If you do not pay the fees, including the case of failure of electronic withdrawal, we may suspend or terminate your use of the Service. Also, if you fail to pay the fees due and payable, including the case of failure of electronic withdrawal, you shall be liable for payment of a default penalty at the rate of 14.6% per annum or the highest rate permitted by the applicable governing law, whichever is the lower, on all late payments. To the fullest extent permitted by law, you hereby agree that no refund is available and that even if we refund at our own discretion, such refund will only be in the form of credit for the Service.
4. PERSONAL INFORMATION
4.1 Accurate Information. You hereby agree to provide and maintain true, accurate, current, and complete information about you and your company, where applicable, as prompted by our registration processes or as required for the use of the Site or Service, or any portion thereof. You hereby acknowledge that, if you provide any information that does not satisfy this provision, or we have reasonable grounds to suspect as much, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site or Service.
4.2 Use of Your Information. You also agree that we may store and use any personal information that you provide to us for use in accordance with the Privacy Policies, including but not limited to processing your request or order, billing you for the Service (including charging fees to your credit card), providing the Site or Service, and as otherwise permitted or required under applicable law. Please refer to our Privacy Policies http://en.kii.com/privacy, which is incorporated by reference into this Agreement, for more information regarding our collection, use, disclosure and storage of your personal information.
4.3 Privacy Policies. You hereby expressly agree that we may use your personal information in accordance with the terms of the Privacy Policies.
5. LIMITED LICENSE
5.1 Site Information. The term “Site Information” means all information, text, pictures, sound, graphics, scripts, photos, software, designs, design rights, video, data, sounds, music, interactive features, content and the like that is displayed on the Site or Service and any and all other proprietary rights contained therein, including, without limitation, the trademarks, service marks, logos, patent rights, copyrights, other proprietary material, marks or rights, know-how, concept, methods, techniques, ideas and all other intellectual property rights and rights of a similar character whether registered or capable of registration. Site Information does not include the content generated by the Customer (the “Customer-Generated Content”).
5.2 Ownership. You hereby expressly acknowledge that we or our licensors own all legal right, title and interest in the Site Information. We reserve all rights not expressly granted in and to the Site, Service and Site Information.
5.3 Reservation of Rights. Any rights not expressly granted in these terms are reserved.
6. CUSTOMER-GENERATED CONTENT
6.1 Liability/Acceptable Use Policy. You shall also be solely responsible for any Customer-Generated Content you submit and the consequences of posting or publishing such. With respect to any Customer-Generated Content you submit, you agree you will not: (i) submit any content that is copyrighted, protected by trade secret or otherwise subject to any third party intellectual property rights or proprietary rights, including any privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner of such rights to post such content and to grant us all of the license rights and other rights granted herein; (ii) upload, post, e-mail or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (iii) use the Site or Service to harm minors in any way; (iv) impersonate any person or entity, including but not limited to, a representative of us, or falsely state or otherwise misrepresent your affiliation with a person or entity; (v) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted to or through the Site or Service; (vi) upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation; (vii) upload, post, e-mail or otherwise transmit any content that contains computer viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or NASDAQ, and any regulations having the force of law; and (ix) collect or store personal data about other Visitors, other Customers or users who use applications hosted on our servers (the “Users”).
6.2 Removal of Content. While we are not obligated to do so, we reserve the right to refuse or remove any Customer-Generated Content from the Site or Service that we reasonably consider to violate this Agreement or to otherwise be illegal or objectionable. Further, if we deem appropriate in our sole discretion, we reserve the right to preserve a record of any Customer-Generated Content that we reasonably believe may to be illegally posted or to otherwise violate the law or the rights of a third party, and to turn all or a portion thereof over to law enforcement officials.
6.3 Site Monitoring. You hereby acknowledge and agree that we have the right, but not the obligation, to monitor the Site or Service, the Site Information and any Customer-Generated Content that you or any third party transmit or post, to alter or remove any such materials, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Site or Service properly, to protect ourselves, our sponsors, other Visitors, other Customers, and Users, and to comply with legal obligations or governmental requests. We also reserve the right to, without advance notice, suspend, block or deny any Visitor or Customer access to the Site, Service or Site Information when in our sole discretion we believe the Customer has violated any of the terms of this Agreement.
7. CODE OF CONDUCT; IMPROPER USE OF SITE OR SERVICE
7.1 Use of the Site or Service. While using the Site or Service (including in connection with any Customer-Generated Content), you will not, and will not induce any third party to: (i) use the Site, Service or any of the Site Information in a way that is unlawful, harms us, any other Visitor, any other Customer or User, or otherwise violates the rights of any party; (ii) use the Site, Service or any of the Site Information in a way that could overburden, or impair the Site or Service (or the networks or systems connected to such); (iii) attempt to disable or circumvent any security mechanisms used by the Site, Service or Site Information, or otherwise attempt to gain unauthorized access to any portion or feature of the Site, Service or Site Information or any other systems or networks connected to the Site or Service, or to any server of us or our third party service providers, by hacking, password “mining”, or any other illegal means; (iv) use any device, software, instrumentality or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or Service, or with any other person’s use of the Site or Service; (v) breach any security measures implemented on the Site or Service or in the Site Information; (vi) track or seek to trace any information on any other person who visits the Site or uses the Service; (vii) use the Site, Service or Site Information for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; or (viii) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to, the Site, Service or Site Information, or otherwise made available to you in connection with the Site, Service or Site Information; or (ix) use the Site, Service or Site Information in any manner that otherwise violates this Agreement.
7.2 Intellectual Property Rights. We respect the intellectual property of others, and we ask you and all Customers to do the same. It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of Visitors or Customers who repeatedly infringe the copyrights or other intellectual property rights of us or others.
7.3 Cooperation with Law Enforcement. We shall fully co-operate with any law enforcement authorities or court order requesting or directing us to disclose the identity or locate anyone who uses the Site or Service in violation of any applicable laws or this Agreement.
8. DMCA NOTICE (IF THE LAWS OF THE UNITED STATES IS APPLICABLE)
8.1 Notice of Infringement. If you are a copyright owner or an agent thereof and believe any Site Information or Customer-Generated Content infringes upon your copyrights, you may submit a notification of claimed infringement under the Digital Millennium Copyright Act (“DMCA”) by providing notice to our Designated Copyright Agent (“Designated Copyright Agent”) containing the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of a copyright that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
8.2 Copyright Agent. Our Designated Copyright Agent to receive notifications of claimed infringement is:
Kii Copyright Agent
1900 S Norfolk Street, Suite 350
San Mateo, CA 94403
Please send only DMCA notices to our Designated Copyright Agent. If you fail to comply with all of the above requirements of this Section 8, your DMCA notice may not be valid.
9.1 No Guarantee. While we endeavour to ensure that the Site and Service continue to be available, we can not guarantee that the Site or Service shall operate or be available in an uninterrupted manner. We shall not be liable if for any reason the Site or Service is unavailable at any time or for any period.
9.2 Downtime or Outage. Access to the Site or Service may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond our control.
9.3 Reporting Errors. You may report Site problems and errors by email to http://en.kii.com/company/contact.
10. LINKS TO THIRD-PARTY WEBSITES
10.1 Links to Third-party Websites. Links to third party websites on the Site or Service are provided solely for your convenience. If you use these links, you leave the Site or Service and may be subject to the terms and conditions of the third party websites. We have not reviewed these third party websites and do not control and are not responsible for these websites or their content or availability. We therefore do not endorse or make any representations about, any material or content found within or any results that may be obtained by using, them. If you decide to access any of the third party websites linked to the Site or Service, you do so entirely at your own risk.
11. COMPLIANCE WITH LAW
11.1 General Compliance. You shall obey all federal, state, and local laws, regulations and rules that apply to your activities when you use the Site or Service. We reserve the right to terminate your account and to prevent your use of the Site or Service if your account is used to engage in illegal activity or to violate this Agreement.
11.2 Export Laws. The Service may be subject to United States export controls, and export controls of other jurisdictions. By using Service or content of the Site or downloading any the Software, you warrant that you are not located in any country, or exporting the Software to any person or place, to which the United States, the European Union, Japan, China or any other jurisdiction has embargoed goods. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or Software subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Service any content, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this Section shall survive termination of this Agreement.
12.1 Software Development Kit License. The software development kit (“SDK”) provided on the Site is licensed to you subject to this Agreement and the following:
12.1.1 We hereby grant you a non-exclusive, non-assignable and non-transferrable license to download, install and use the SDK for the sole purpose of integrating the Software functionality into your applications (“Prescribed Purpose”).
12.1.2 You agree that we own all legal right, title and interest in and to the SDK, including any intellectual property rights that subsist in the SDK.
12.1.3 Nothing in this Agreement gives you a right to use any of the Site Information prescribed in Article 5.1.
12.1.4 We reserve all rights not expressly granted to you.
12.2 Use of the Software Development Kit. You shall not do the following for purposes other than the prescribed purpose:
12.2.1 create derivative works based on the SDK or any part or component thereof;
12.2.2 reproduce the SDK in whole or in part;
12.2.3 sell, assign, license, disclose, or otherwise transfer or make available the SDK in whole or in part to any third party;
12.2.4 alter, modify, adapt, translate, decompile, or attempt to reverse engineer the SDK or any part of component thereof, subject to applicable law which permits such activity notwithstanding this contractual prohibition;
12.2.5 remove, obscure, or alter any proprietary rights notices (including without limitation copyright and trademark notices) or marks that may be affixed to or contained within the SDK.
12.3 Other Obligations and Limitations Regarding the Software-enabled Mobile Apps. You hereby agree to use the SDK and develop applications only for the Prescribed Purpose and to use the SDK in a manner that is permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You hereby warrant and represent that any applications you develop using the SDK will not infringe the intellectual property right of any third parties. You further agree and acknowledge that:
12.3.1 the SDK is provided to you “as-is”, without any conditions, warranties or other terms of any kind. To the maximum extent permitted by law, we provide you with the SDK on the basis that we excludes all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill);
12.3.2 the form and nature of the SDK that we provide may change without prior notice to you and that future versions of the SDK may be incompatible with applications developed on previous versions of the SDK;
12.3.3 we may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to you or to users generally at our sole discretion, without prior notice to you;
12.3.4 you will not engage in any activity with the SDK, including the development or distribution of an application, that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of us or any third party;
12.3.5 you are solely responsible for (and that we have no responsibility to you or to any third party for) any data, content, or resources that you create, transmit or display through the Site and/or applications for the Services, and for the consequences of your actions (including any loss or damage which we may suffer) by doing so; and
12.3.6 you are responsible for maintaining the confidentiality of any developer credentials that may be issued to you by us or which you may choose yourself and that you will be solely responsible for all applications that are developed under your developer credentials.
12.4 Our License to Customer Applications.
12.4.1 We agree that it obtains no right, title or interest from you under these terms in or to any applications that you develop using the SDK, including any intellectual property rights that subsist in those applications, unless otherwise provided in these terms or you have signed an agreement with us to grant such rights to us.
12.5.1 If you create the Software-enabled applications for general public users, you will protect the privacy and legal rights of your Users in accordance with all applicable privacy laws and the Privacy Policies, which you should review carefully http://en.kii.com/privacy. You must make your Users aware what sort of information will be available to your application, and you must provide legally adequate privacy notice and protection for your Users.
12.5.2 Users must acknowledge and consent to the collection of personal information or device identifying information before being permitted to use the application.
12.5.4 You must notify Users of any material changes to your collection, use or disclosure practices prior to making the change.
12.5.5 You must implement commercially reasonable procedures to protect personal information within your control form unauthorized access, use, alternation, disclosure, or distribution.
12.5.6 You must use reasonable encryption methods for transmission of information across wireless networks, and storage of information if the inappropriate use of disclosure of that information could cause financial, physical, or reputational harm to an individual.
12.5.7 You shall take commercially reasonable steps when collecting, creating, maintaining, using, disclosing or distributing personal information or device identifying information to assure that the information is sufficiently accurate, complete, relevant, and timely for the purposes for which such information is to be used.
12.5.9 In the event of a data security breach or similar term as defined under any applicable law, you are responsible for providing all notices that may be required by law.
12.6 Children’s Online Privacy Protection Act (TO THE EXTENT THE LAWS OF THE UNITED STATES IS APPLICABLE)
12.6.1 COPPA. You acknowledge that the Children’s Online Privacy Protection Act, 15 U.S.C. §§ 6501–6508, and the rules promulgated pursuant to such by the U.S. Federal Trade Commission (collectively, “COPPA”) govern the collection of personal information, as defined in Federal Trade Commission (“FTC”) rules, from children under 13 years old, as well as the subsequent use and disclosure of such information, by operators of websites and mobile apps targeted to such children or that knowingly collect personal information from such children.
12.6.2 Warranty. You represent and warrant that your application and any associated websites are and will be at all times fully compliant with the current version of the FTC’s COPPA rules. You further acknowledge that your internal practices with respect to the collection, use and disclosure of the personal information of children are fully compliant with COPPA and all applicable privacy laws.
12.7 Health Insurance Portability and Accountability Act (TO THE EXTENT THE LAWS OF THE UNITED STATES IS APPLICABLE)
12.7.1 HIPAA. You represent and warrant that your application and any associated websites will not collect protected health information, as defined by the Health Insurance Portability and Accountability Act, 45 C.F.R 160 et seq, and the rules promulgated pursuant to such by the Department of Health and Human Services.
12.8 Financial Services Modernization Act of 1999 (Gramm–Leach–Bliley Act) (TO THE EXTENT THE LAWS OF THE UNITED STATES IS APPLICABLE)
12.8.1 GLBA. You represent and warrant that you are not a financial institution as defined by the Financial Services Modernization Act of 1999, and the rules promulgated pursuant to such by the U.S. Federal Trade Commission (collectively, “GLBA”).
12.8.2 Warranty. You further represent and warrant that your application and any associated websites will not collect non-public personal information as defined by GLBA, and the rules promulgated pursuant to such by the U.S. Federal Trade Commission.
12.9 GDPR. You represent and warrant that your applications and IoT devices will not collect personal data of EEA persons, as defined in the European Union (EU) General Data Protection Regulations (GDPR), unless you have a separate contract with Kii in respect of the GDPR.
You shall not violate or attempt to violate the security of the Site or Service. 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 investigating or prosecuting Visitors, Customers, and Users who have participated in such violations.
14. WARRANTY DISCLAIMER
YOUR USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. ALL SITE INFORMATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, OF ANY KIND. YOUR USE OF THE SITE, THE SERVICE AND THE SITE INFORMATION IS ENTIRELY AT YOUR OWN DISCRETION AND RISK, AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, THE SERVICE AND THE SITE INFORMATION.
WE, ON BEHALF OF OURSELVES AND OUR PARENT, SUBSIDIARIES, AFFILIATES, LICENSORS, DISTRIBUTORS, AGENTS, REPRESENTATIVES, AND THIRD-PARTY SERVICES PROVIDERS, INCLUDING ANY RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND SUPPLIERS THEREOF, AND ANY OF THE FOREGOING ENTITIES’ RESPECTIVE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, PARTNERS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “KII PARTIES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR NONMISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION CONTENT, OR SYSTEM INTEGRATION. WE(A) DO NOT WARRANT THAT THE SITE WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED; (B) DO NOT REPRESENT OR WARRANT THAT THE SITE, SERVICE, OR ANY CONTENTS THEREIN, WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED, TIMELY, ERROR-FREE OR COMPLETELY SECURE MANNER, OR THAT ERRORS OR DEFECTS WILL BE CORRECTED; (C) DO NOT REPRESENT OR WARRANT THAT THE SITE, SERVICE OR ANY CONTENTS THEREOF WILL MEET YOUR REQUIREMENTS; AND (D) DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, SERVICE OR ANY CONTENT THEREIN, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
Some jurisdictions may not allow the exclusion or limitation of implied warranties or conditions, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. In such event, our warranties and conditions with respect to the Site and Service will be limited to the greatest extent permitted by applicable law in such jurisdiction.
15. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL THE KII PARTIES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE OR ANY CONTENT OR SERVICES THEREIN, EVEN IF A KII PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF A KII PARTY IS FOUND TO BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGE OR LOSS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE, OR ANY CONTENT OR SERVICES THEREIN, THE RELEVANT KII PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID US FOR YOUR USE OF THE SITE, SERVICE AND ANY CONTENT THEREIN; OR (B) THE SUM OF ONE HUNDRED US DOLLARS (USD $100).
To the maximum extent permitted by law, under no circumstances will we be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within any third party hyperlinked sites.
Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential, or other damages, so the above limitations or exclusions may not apply to you. In such event, our liability for such damages with respect to the Site and Service will be limited to the greatest extent permitted by applicable law in such jurisdiction.
You agree to indemnify, defend and hold harmless, us, our affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers to the Site or Service from and against any and all claims or liability, including costs and attorneys fees, arising from or in connection with your violation of this Agreement and your use of the site or Service. We reserve the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
17. RIGHT OF ACCESS
In order to use the Site or Service you must be at least 13 years of age or older. You affirm that you are either: (a) at the age of majority under the applicable law and are fully able and competent to enter into and comply with the terms and conditions of this Agreement; or (b) if you are at the age of minor under the applicable law but at least 13 years old, that you have your parent’s permission to enter into this Agreement and are fully able to comply with the terms and conditions of this Agreement.
You agree that we, in our sole discretion, may terminate your use of the Site or Service, and remove and discard your Customer-Generated Content, for any reason, if we believe that you have or may have violated or acted inconsistently with the letter and spirit of this Agreement. We may also in our sole discretion and at any time discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site or Service, under any provision of this Agreement, may be effected without prior notice to you, and acknowledge and agree that we may bar any further access to the Site or Service. Further, you agree that we shall not be liable to you or any third-party for any termination of access to the Site or Service.
In the event that we discontinue the Site or Service, we may, at our sole discretion, either (i) continue to provide to you the Service for the period for which you have already paid, or (ii) provide you with a refund on a pro-rata basis.
19. LIMITED TIME TO BRING CLAIM
Where permitted by law, you and we agree that any cause of action arising out of or related to the Site or any Site Information must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
20. WAIVER, AND SEVERABILITY.
If any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible, and the other provisions contained herein will remain in full force and effect. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. Nothing in this Agreement shall be construed as creating or constituting a partnership, joint venture, agency or other like relationship between you and us or any of the Kii Parties.
The failure of us to insist upon performance of any of the terms and conditions of this Agreement, or the waiver of any breach of, or the decision to not exercise any of its rights under, any of the terms or conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, or any other terms and conditions of this Agreement. Any waiver must be in writing and signed by us.
21. JURISDICTION, VENUE: WAIVER OF JURY TRIAL
This Agreement and all claims or issues regarding the Site or Service shall be governed according to the laws of (i) the State of California, in the USA, if the server mainly used for the Service which is designated by subscribers to the Service upon subscription and accepted by us (the “Designated Server”) is located in the USA (ii) Hong Kong, if the Designated Server is located in Mainland China, Hong Kong and/or Macau (“China”), and (iii) for any and all other cases, Japan, except in each case for the conflict or choice-of-law principles thereof.
Any disputes that may arise concerning the formation, interpretation or performance of this Agreement shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce in force on the date, in (i) California, the USA, if the Designated Server is located in the USA and you are a US citizen or a US entity, (ii) Hong Kong, if the Designated Server is located in China and you are a Chinese citizen or a Chinese entity, and (iii) Tokyo, Japan, for any and all other cases.
If the above arbitration clause is not enforceable, except in those cases where contractual attribution of jurisdiction is not enforceable on the Visitor or Customer as a consumer, any disputes that may arise concerning the formation, interpretation or performance of this Agreement, shall be brought in the courts of (i) California, the USA, if the Designated Server is located in the United States and you are a US citizen or a US entity, (ii) Hong Kong, if the Designated Server is located in China and you are a Chinese citizen or a Chinese entity, and (iii) Tokyo, Japan, for any and all other cases.
TO THE EXTENT NOT OTHERWISE PROHIBITED BY APPLICABLE LAW, THE PARTIES HERETO AGREE TO WAIVE TRIAL BY JURY WITH RESPECT TO ANY MATTERS ARISING UNDER OR RELATING TO THIS AGREEMENT WHICH ARE NOT RESOLVED BY ARBITRATION.
22. CONTACT US
Any questions or comments about the Site or Service should be directed to us at http://en.kii.com/company/contact.