Last Updated: October, 2021.
These Terms affect your legal rights, responsibilities and obligations and govern your use of the Service, and are legally binding. If you do not wish to be bound by these Terms and any Additional Terms, do not use the Service and uninstall Service downloads and applications.
In some instances, additional or different terms, posted on the Service, apply to your use of certain parts of the Service (individually and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise
Updates to these Terms and Additional Terms
We may prospectively change these Terms and Additional Terms by posting new or changed terms on the Service as more fully explained in Section 11 below.
1. OWNERSHIP AND YOUR RIGHTS TO USE THE SERVICE AND CONTENT.
A. Ownership. The Service, all of its content (“Content”), and Software (defined below), including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights in any of the foregoing (collectively, “Kinetico IP”), are owned or controlled by Kinetico, our licensors, and certain other third parties. All right, title, and interest in and to the Kinetico IP is the property of Kinetico, our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property rights and unfair competition rights and laws to the fullest extent possible. Kinetico owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
B. Your Rights to Use the Service and Content. Your right to use the Kinetico IP is subject to your strict compliance with these Terms and the Additional Terms. Your right to access and use the Kinetico IP shall automatically terminate upon any violations. These rights are non-exclusive, limited, and revocable by us at any time in our sole discretion without advance notice or liability. As your right to access and use the Service and the content is personal to you, you may not assign nor transfer your right, and any attempt to do so is void. You may, for your personal, lawful use only: (i) access and use any Service features or functionality expressly provided by Kinetico on or through the Service for use by users, subject to these Terms (including, without limitation, functionality to create and/or post Submissions (as defined below)) and any applicable Additional Terms; (ii) download, install and use one copy of any software, including apps, that we make available on or through the Service (“Software”) on your Device in machine-executable object code form only and make one additional copy for back-up purposes; and (iii) display, view, use, and play the Content on a computer, mobile or other internet enabled or permitted device (“Device”) and/or print one copy of the Content (excluding source and object code in raw form or otherwise) as it is displayed to you. If you are accessing or using the Service in your individual capacity as a consumer, the rights granted to you herein are for your non-commercial use only. If you are accessing or using the Service in your capacity as a sole proprietor or on behalf of a business, the rights granted to you herein are for your or your organization’s internal business purposes only, respectively.
C. Rights of Others. In using the Service, you must respect the intellectual property rights of Kinetico and others. Your unauthorized use of Content may violate the rights of others and applicable laws, and may result in your civil and criminal liability. If you believe that your work has been infringed via the Service, see Section 5 below.
D. Reservation of all Rights Not Granted. These Terms and any applicable Additional Terms include only narrow, limited grants of rights to use and access the Service, Content and other Kinetico IP. No other right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED BY Kinetico AND ITS LICENSORS AND OTHER THIRD PARTIES. Any unauthorized use of any Content or the Service for any purpose is prohibited.
If you are accessing or using the Service through Apple, Android, or any other platform, these are Third-Party Services. If you access our Apps via Apple, see below for Additional Terms and conditions that are applicable to you and that are incorporated into the Terms by reference.
TERMS APPLICABLE FOR APPLE IOS.
(i) To the extent that you are accessing the Service through an Apple mobile application, you acknowledge that these Terms are entered into between you and Kinetico and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
(iii) You acknowledge that Kinetico, and not Apple, is responsible for providing the Service and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
(v) To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms and conditions of the Terms, you acknowledge that, solely as between Apple and Kinetico, Kinetico, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Service, or your possession and use of the Service, infringes on a third-party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.
(ix) When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
(x) Your use of real time route guidance on the Service (if any) is at your sole risk. Location data may not be accurate.
2. CONTENT YOU SUBMIT.
B. Representations and Warranties Related to Your Submissions. Each time you submit any Submissions, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any Submissions you submit, and that, as to that Submissions, (a) you are the sole author and owner of the intellectual property rights and other rights to the Submissions, or you have a lawful right to submit the Submissions and grant Kinetico the rights to it that you are granting by these Terms and any applicable Additional Terms, all without any Kinetico obligation to obtain consent of any third party and without creating any obligation or liability of Kinetico; (b) the Submissions are accurate; (c) the Submissions do not and, as to Kinetico’s permitted uses and exploitation set forth in these Terms and any applicable Additional Terms, will not infringe any intellectual property or other right of any third party; and (d) the Submissions will not violate these Terms or any applicable Additional Terms, or cause injury or harm to any person.
C. Appropriate Content and Alerting Us of Violations. We expect Submissions to be appropriate for a general audience, but do not undertake to monitor it, and you consent to potentially encountering content you find offensive or inappropriate. We may include venue and content rules as Additional Terms if we provide certain features that allow you to publicly post certain submissions. If you discover any content that violates these Terms or any applicable Additional Terms, then you may contact us as set forth in the “Contact Kinetico” Section below. For alleged infringements of intellectual property rights, see Section 5 below.
3. SERVICE, CONTENT AND OTHER USE RESTRICTIONS.
A. Service Use Restrictions. You agree that you will not: (i) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party, or are otherwise objectionable to Kinetico; (ii) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service by any means whatsoever or modify any Service source or object code or any Software or other products, services, or processes accessible through any portion of the Service; (iii) access or use the Kinetico IP for purposes of competitive analysis of the Kinetico IP, the development, provision, or use of a competing service or product or any other purpose that is to Kinetico’s detriment or commercial disadvantage; (iv) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Kinetico, other users of the Service, or a third party; (v) interfere with or circumvent any security feature (including any digital rights management mechanism, device or other content protection or access control measure) of the Service or any feature that restricts or enforces limitations on use of or access to the Kinetico IP; (vi) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (vii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (viii) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Service, you: (i) will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) will keep intact all Trademark, copyright, and other Intellectual Property and other notices contained in such Content; (iv) will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) will not make any modifications to such Content (other than to the extent of your specifically permitted use of the Kinetico IP, if applicable); (vi) will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third-party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Kinetico or, in the case of content from a licensor, the owner of the Content; and (vii) will not insert any code or product to manipulate such content in any way that adversely affects any user experience or the Service.
C. Limitations on Software. You understand and agree that (i) by allowing you to download the Software, Kinetico does not transfer title to the Software to you (i.e., you own the medium on which the Software is recorded, but the Software's owner (which may be Kinetico and/or its third-party Software licensor) will retain full and complete title to such Software); (ii) you may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software, except as expressly authorized in these Terms or applicable Additional Terms, without the prior written consent of Kinetico; (iii) you may not assign, rent, lease, or lend the Software to any person or entity and any attempt by you to sublicense, transfer, or assign the Software will be void and of no effect; and (iv) you may not decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law.
D. Send to Friend Features. Subject to any applicable Additional Terms, if the Service includes a “Send to Friend,” social media sharing or similar tool that allows you to initiate and send to one or more of your contacts a communication that includes content, or to post our content to third-party services or your own site or online service, and the tool is operational, use the tool to do so; provided, however, that you do not do so in any manner that violates applicable law or third-party rights or reflects negativity on us, and only send to recipients you have permission to contact.
E. Linking to the Service. You may link to the Service from a website or other online service, so long as: (i) the links only incorporate text, and do not use any Kinetico names, logos, or images; (ii) the links and the content on your website do not suggest any affiliation with Kinetico or cause any other confusion; and (iii) the links and the content on your website do not portray Kinetico or its products or services in a false, misleading, derogatory, or otherwise offensive manner, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party or are otherwise objectionable to Kinetico. Kinetico reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third-party.
F. Availability of Service and Content. Kinetico, in its sole discretion without advance notice or liability, may immediately suspend or terminate the availability of the Service and/or Content (and any elements and features of them), in whole or in part, for any reason, in Kinetico’s sole discretion, and without advance notice or liability.
4. CREATING AN ACCOUNT.
A. Some aspects of the Service may allow you to create a user account. If you register with us or create an account, you are solely responsible and liable for the security and confidentiality of your access credentials and for restricting access to your Device and for all activity under your account. Usernames and passwords must be personal and unique that do not violate the rights of any person or entity, and is not offensive. We may reject the use of any password, username, or email address for any reason in our sole discretion. You are solely responsible for your registration information and for updating and maintaining it. You will immediately notify us at the link in the “Contact Kinetico” Section below of any unauthorized use of your account, password, or username, or any other breach of security, but will remain responsible for any unauthorized use thereafter. You will not sell, transfer, or assign your account or any account rights.
B. Accounts may only be set up by an individual, or authorized representative of the individual that is the subject of the account. We do not review accounts for authenticity, and are not responsible for any unauthorized accounts that may appear on the Service. For any dispute as to account creation or authenticity, we shall have the sole right, but are not obligated, to resolve such dispute as we determine appropriate, without notice.
5. PROCEDURE FOR ALLEGING COPYRIGHT INFRINGEMENT.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright Law. If you believe in good faith that materials available on the Service infringe upon your copyright, then you (or your agent) should send us a notice requesting that we remove the material or block access to it. If you believe in good faith that someone has wrongly submitted a notice to us under this paragraph, then you should send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See https://www.copyright.gov/ for details.
If you believe in good faith that your work has been improperly reproduced on the Service, then please provide us with the following information: (1) your name, address, telephone number, email address; (2) an electronic or physical signature of the copyright owner of the exclusive right or of the person authorized to act on behalf of the owner; (3) 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 the site; (4) the applicable Service and identification or a description of where the alleged infringing material is located within such Service; (5) a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (6) 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.
Notices should be sent to firstname.lastname@example.org. We suggest that you consult with a legal advisor before filing a notice or counter-notice. Please note that there may be penalties for false claims under the DMCA.
6. MOBILE, MESSAGING, AND LOCATION-BASED FEATURES
A. Mobile Features. The Service may offer certain features and services via your mobile Device. Features and services may include the ability to access the Service’s features, upload content to the Service, receive messages from the Service, and download applications to your mobile Device (collectively, “Mobile Features”). You agree to receive communications we may send through Mobile Features for which you are registered. Further, we may collect information related to your use of the Mobile Features. If you have registered via the Service for Mobile Features, then you agree to notify Kinetico of any changes to your mobile contact information (including phone number) and update your accounts on the Service to reflect the changes. If the Service includes push notifications or other mobile communication capability, you hereby approve our delivery of electronic communications directly to your mobile Device. These notifications, including badge, alert or pop-up messages, may be delivered to your Device even when the Service is running in the background. You may have the ability, and it is your responsibility, to adjust the notifications you do, or do not, receive via your Device through your Device and/or App settings. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or wireless Device. Contact your carrier with questions regarding these issues.
B. Text Messages and Emails.
(i) Text Messages. You may be given opportunities to subscribe to various text marketing or other text messaging programs and by doing so, you consent to receive ongoing text alerts (including by auto-dialers) from us related to our various businesses and affiliates, which may include co-promotions with or about other parties, except that if the scope of your consent for a particular subscription is limited that subscription will be so limited. Such consent is not required to purchase any product or service aside from the text subscription itself. For each subscription, text “HELP” for help and text “STOP” to terminate (i.e., opt-out) that subscription. Subsequent or different subscriptions will be unaffected by an opt-out. You consent to receive a text confirming any opt-out as well as non-marketing administrative or transactional messages. For subscriptions to recurring text messages, you may receive up to the number of text messages per month specified in your consent, or to which you later consent. Alerts auto-renew unless otherwise specified when you consented. Except for purchase of premium text programs to which you subscribe for a fee, your consent to receive text messages is not a condition of any purchase, and no purchase is necessary. You understand that we will send mobile text messages using automated technology. If you subscribe to text messages you represent that you are 18 years of age or older, or have obtained parental consent. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Contact your carrier for details. If we are charging a premium rate for text messages, that will be explained in the applicable subscription consent. Not all phones and/or carriers are supported.
(ii) Email Messages. You may cancel or modify our email marketing communications you receive from us by following the instructions contained within our promotional emails. This will not affect subsequent subscriptions and if your opt-out is limited to certain types of emails the opt-out will be so limited. Please note that we reserve the right to send you certain communications relating to your account or use of our Service, such as administrative and service announcements and these transactional account messages may be unaffected if you choose to opt-out from receiving our marketing communications.
7. SALE OF PRODUCTS; TERMS OF SALE
We strive to accurately describe our products or services offered on the Service; however, we do not warrant that such specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free. As permitted by applicable law, Kinetico shall have the right to refuse or cancel any orders in its sole discretion. Your orders are offers to purchase subject to our acceptance, which we may reject or cancel subject to refund. Some parts of the Services allow you to purchase products. Our Terms of Sale apply whenever you purchase Products (as defined in the Terms of Sale). The Terms of Sale are Additional Terms to these Terms. Other Additional Terms may apply.
8. ARBITRATION AND DISPUTE TERMS.
A. Forum Selection/Jurisdiction. Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Service or any other Kinetico products or services, Content, or any other Kinetico IP, Submissions, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in Cuyahoga County, Ohio. Each party submits to personal jurisdiction and venue in Cuyahoga County, Ohio for any and all purposes. For avoidance of doubt, any IP Disputes or General Disputes (each defined below) shall each be considered a Dispute.
B. Pre-Arbitration Notification. Kinetico and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that Kinetico need not do so in circumstances where its claims of intellectual property rights are concerned (“IP Disputes,” with all other Disputes referred to as “General Disputes”). The party making a claim – whether you or Kinetico – shall send a letter to the other side briefly summarizing the claim and the request for relief. If Kinetico is making a claim, the letter shall be sent, via email, to the email address listed in your Kinetico account, if applicable. If no such information exists or if such information is not current, then we have no notification or delay obligations under this Section 8.B. If you are making a claim, the letter shall be sent to 10845 Kinsman Road, Newbury, Ohio 44065 (Attn: Legal Department). If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section 8. Either you or Kinetico, however, may seek provisional remedies (such as preliminary injunctive relief, subject to Section 8.D) before the expiration of this sixty (60)-day period.
C. Arbitration of Claims. All actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Section, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in Cuyahoga County, Ohio, before a single arbitrator. If the matter in dispute is between Kinetico and a consumer, the matter shall be submitted to JAMS in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. We may have the right to pay the JAMS fees if required for arbitration to be enforceable. If you are a consumer you have the right to an in-person hearing. The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers. The fact that there is a Dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The parties may engage in the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in Cuyahoga County, Ohio or, if sought by Kinetico, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to the Cuyahoga County, Ohio or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award.
D. Limitation on Injunctive Relief. AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY KINETICO PARTY (DEFINED BELOW) (INCLUDING YOUR LICENSED SUBMISSIONS) OR A LICENSOR OF ANY KINETICO PARTY.
E. Governing Law. These Terms and any applicable Additional Terms, and any Disputes or any other claim brought by you against Kinetico or by Kinetico against you pursuant to this Section 8, or otherwise related to the Service or other Kinetico products or services, Content, or any other Kinetico IP, or Submissions will be governed by, construed, and resolved in accordance with, the laws of the State of Ohio, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction. This Section 8 shall be governed solely by the Federal Arbitration Act, 9 U.S.C. §1, et seq., and not by the law of any state, and is enforceable pursuant to its terms on a self-executing basis. You and Kinetico agree that we intend that this Section 8 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 8 can only be amended by mutual agreement. Either party may seek enforcement of this Section 8 in any court of competent jurisdiction. The arbitrator shall determine any and all challenges to the arbitrability of a claim.
F. Class Action Waiver. As permitted by applicable law, both you and Kinetico waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Section 8 is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.
G. Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
H. Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims court, subject to Section 8.F.
I. The provisions of this Section 8 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 8 shall remain in full force and effect notwithstanding any termination of your use of the Service or these Terms.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
A. AS PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICE, OTHER KINETICO PRODUCTS OR SERVICES, CONTENT, AND ANY OTHER KINETICO IP, AND SUBMISSIONS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. To the fullest extent permissible by applicable law, Kinetico and their direct and indirect parents, subsidiaries, affiliates, and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Kinetico Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, in connection with, or otherwise directly or indirectly related to, without limitation, the Service, other Kinetico products or services, Content, and any other Kinetico IP, or Submissions, except as set forth in Section 9.C, below.
B. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN, OR IN APPLICABLE ADDITIONAL TERMS, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, KINETICO PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
C. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (i) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY KINETICO PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY KINETICO PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (ii) KINETICO PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY KINETICO PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (iii) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST KINETICO PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
10. LIMITATIONS OF OUR LIABILITY.
A. AS PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY KINETICO PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, in connection with, or otherwise directly or indirectly related to, without limitation, the Service or any other Kinetico products or services, Content, and any other Kinetico IP, or Submissions, except to the extent not waivable under applicable law for direct damages for personal injury caused by a physical product manufactured, sold or provided by Kinetico
B. The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if Kinetico Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
C. AS PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KINETICO PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE OR ANY OTHER KINETICO PRODUCTS OR SERVICES, CONTENT, AND ANY OTHER KINETICO IP, OR SUBMISSIONS AND YOUR RIGHTS UNDER THESE TERMS OR ANY ADDITIONAL TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID KINETICO IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S).
D. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (i) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY KINETICO PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY KINETICO PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (ii) KINETICO PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY KINETICO PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (iii) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST KINETICO PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
11. UPDATES TO TERMS.
It is your responsibility to review the posted Terms and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission). EACH TIME YOU SIGN IN TO OR OTHERWISE ACCESS OR USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. In the event any notice to you of new, revised, or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You can reject any new, revised or additional terms by discontinuing use of the Service.
12. GENERAL PROVISIONS.
A. Kinetico’s Consent or Approval. As to any provision in these Terms or any applicable Additional Terms that grants Kinetico a right of consent or approval, or permits Kinetico to exercise a right in its “sole discretion,” Kinetico may exercise that right in its sole and absolute discretion. No Kinetico consent or approval may be deemed to have been granted by Kinetico without being in writing and signed by an officer of Kinetico.
C. Operation of Service; Availability of Products and Services; International Issues. Kinetico controls and operates the Service from the U.S.A., and makes no representation that the Service is appropriate or available for use beyond the U.S.A. If you use the Service from other locations, you are doing so on your own initiative and responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.
D. Export Controls. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by U.S. law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
E. Severability; Interpretation. If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the applicable Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. To the extent permitted by applicable law, you agree to waive and will waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
G. Assignment. Kinetico may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Kinetico.
H. Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Kinetico in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy; and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
I. Notices; Questions; Customer Service. You agree that we may give you notices or otherwise respond to you by mail or to your email (if we have it on file) or in any other manner reasonably elected by us. All legal notices to us must be sent to: 10845 Kinsman Road, Newbury, Ohio 44065 USA, Attention: Legal Department. If you have a question regarding the Service, you may contact Kinetico Customer Support at the link provided in the “Contact Kinetico” Section below. You acknowledge that we have no obligation to provide you with customer support of any kind and that customer service personnel cannot change or waive Terms or applicable Additional Terms.
13. CONTACT KINETICO.