1.1 Choice of Applicable Law. Your relationship is with Kimbodo, Inc., a United States (California) originated company, and you agree to be bound by the laws of California and the laws of the United States of America (USA).
1.3 Some Services may also be overseen by additional or different terms (the “Additional Terms”). Without limitation, any Additional Terms for the following Services are incorporated into the General Terms by reference.
1.4 If there is any legal conflict between the General Terms and the Additional Terms, then the Additional Terms take precedence in regards to that Service. The General Terms, and any applicable Additional Terms, and all other information incorporated by reference in these General Terms are referred to as the “Terms”.
2. Definitions. Unless otherwise defined, capitalized terms used throughout these General Terms have the meanings stated below:
2.1 “Account Information” refers to the information you provide to Kimbodo when you register for the platform service, including your Kimbodo ID and log-in credentials.
2.2 “Intellectual Property Rights” means copyright, intellectual rights, moral rights, trademark, trade dress, patent, trade secret, unfair competition, and any other intellectual and proprietary legal rights.
2.3 “Law” means any applicable statute, law, regulation, or generally accepted practices or guidelines in any area or jurisdiction, such as the laws regarding the export of data or software to and from the United States (USA), or other applicable countries.
2.4 “Make Available” refers to email, submit, post, transmit, upload, or otherwise make available through your use of the platform Services.
2.5 “Marks” means the trademarks, images, logos and service marks displayed on the platform Services.
2.6 “Materials” means any materials supplied by Kimbodo and all user Content, including, without limitation, any (a) information, data, documents, images, photographs, text, graphics, audio, videos, or webcasts, (b) products, and (c) Software.
2.7 “Service Materials” means Materials other than Your Content.
2.8 “Shared Content” means the User Content that you or other Users share via the platform Services.
2.9 “Software” means Kimbodo platform software code and related documentation, including without limitation, any mobile, social and tablet applications related to the Services, content files, uploads, drivers, patches, downloads, browsers, text, designs or fonts.
2.10 “User” means a user (registered or not) of the platform Service.
2.11 “User Content” means (a) Your Content and (b) Shared Content uploaded by other Users.
2.12 “Your Content” means any Materials you Make Available through your use of the platform Services.
2.13 “Your Shared Content” means Your Content that you choose to turn into Shared Content.
3. Acceptance of Terms.
3.1 You may not leverage/use/register for the platform Services if you do not agree to these legally binding Terms. You may accept/agree to the Terms (a) by selecting “I agree” to these Terms, (b) by using the Services in any way, such as downloading or uploading any Materials made available via the Services by Kimbodo, you, or other Users, (c) by browsing the Services.
3.2 You may not use the platform Services if (a) you are prohibited by Law from receiving or using the Services, (b) are intending to use Kimbodo materials and services not for their intended purposes, (c) you are not fully able and competent to enter into a legally binding contract with Kimbodo, such as if you are not of legal age or have not obtained guardian/parental consent. In particular, unless expressly stated otherwise in the Additional Terms for any given Kimbodo related Service, you affirm and agree that you are over the age of 18 and acknowledge that these Services were not intended for children under the age of 18.
3.3 Kimbodo may require you to provide consent to the updated Terms before further use of the platform Services is permitted. Otherwise, your continual use of any Kimbodo related Service constitutes your acceptance of the changes.
5.1 Platform Services and Kimbodo Materials. The Services and Materials, and their selection, placement and arrangement, are protected by Kimbodo’s Intellectual Property Rights. Except as implicitly expressed in the Terms, Kimbodo and its licensors/partners do not grant any express or implied rights to use the platform Services and Materials. All rights, title and interest in the Service and Materials, in all languages, formats, variations and media (worldwide), are and will continue to always be, the exclusive legal property of Kimbodo. Nothing in these Terms shall be construed to transmit or transmute any license or right, by implication, estoppel or otherwise, under copyright, trademark or other intellectual property rights, to you or any other third party.
5.2 Trademarks. The Trademarks are the property of Kimbodo (or Kimbodo’s parent company upon being acquired). You are not permitted to use any Marks without the prior express written consent of Kimbodo, or the rights holder. Kimbodo name and the Kimbodo logo are trademarks of Kimbodo, Inc. For an up to date and current list of Kimbodo’s legal Marks, as well as certain third party Marks, please contact Kimbodo.
5.3 Your Content. If you are a registered corporate/individual User, then you own all right, title, and ownership of Your Content. If you are using and accessing the platform Services and Materials through an account purchased/paid for by another party (such as an employer or a client), then the person/entity/business who purchased/paid for the account retains all right, title, and ownership to Your Content. For example, if you are using Services provided by your employer, then your employer (not you) owns Your Content.
6. Use of Platform Services and Materials.
6.1 If you comply with the terms and conditions of this Agreement, Kimbodo grants to you a non-exclusive, non-transferable, revocable right to access and use the Services, to Make Available Your Content to the Service, and to use the Service Materials in connection with the Services, subject to the following conditions:
- You may not change, add to, alter, copy, modify, or re-transmit the Service Materials without Kimbodo’s express written consent;
- You may not lease, sublease, white label, license, rent, or sell the Service Materials or the right to use and access the platform Services;
- You may not remove, change, modify, obscure, or alter any text, copyright, or other proprietary notices contained in Service Materials; and
- You may not copy, match or imitate part or all of the design, layout, or ‘look-and-feel’ of the Service, which are protected by Kimbodo’s Intellectual Property Rights.
6.2 You agree to use the Services and the Materials only as intended by Kimbodo and as permitted by the Terms and any Law.
6.3 You acknowledge and expressly agree that the platform Services and Materials may be available to you only if you have paid the requisite fee/subscription due, and/or have provided certain Account Information.
6.4 Kimbodo undertakes and leverages certain reasonable (industry standard) efforts to help make the platform Services available 24 hours a day, 7 days a week for its registered users. However, there will be some instances when the platform Service will be interrupted or unavailable for maintenance, upgrades, updates, patches and repairs, or as a result of failure of telecommunications links and equipment that are beyond our control. Kimbodo will take reasonable steps to minimize such disruptions, to the extent it is within our reasonable control. Certain platform Services may not be available in all languages.
6.5 Kimbodo may modify, delete or discontinue, temporarily or permanently, the platform Services or Materials, or any aspect thereof, with or without notice. As a User, You agree that Kimbodo shall not be liable to you or anyone else if we so choose to do so.
(a) Subscription Fees. Certain Services require Users to purchase/pay for a subscription or membership in order to access all or part of the platform Services. Subscription and License Fees are always non-refundable, except as otherwise stated in specific subscription terms applicable to a Kimbodo related Service. Subscription Fees and dues may change at the end of your subscription period. Subscription terms are available at Kimbodo payment terms . com
(b) You, as a registered User, are responsible for paying all taxes/tariffs levied in connection with your use of the platform Services. Your credit card company or bank may impose on you other fees, such as foreign exchange fees, in association with your payment of the Subscription Fees. Your ability to access the Services may require payment of third-party fees (such as telephone toll charges, mobile carrier fees, ISP, data plan, etc.). Kimbodo has no connection to, or responsibility for these fees, fines or taxes.
(c) Collection of Subscription Fee. You agree that in the event Kimbodo is unable to collect the Subscription Fees/dues owed by you to Kimbodo for the Services rendered, Kimbodo may take the legal steps it decides are required in order to collect such Subscription Fees & debts from you. You will be responsible for all related costs and expenses incurred by Kimbodo in connection with such collection activities.
7. Account Information; Personal URL.
7.1 You agree that your personal Account Information will always be complete, accurate and up-to-date. It is your responsibility to keep your account password or log-in credentials confidential at all times. You are solely responsible to Kimbodo for all activity that happens with your Kimbodo Account. If you are made aware of any unauthorized access of your account or Account Information, or any other breach of security, you agree to notify Kimbodo by contacting Support at http://www.Kimbodo.com/support/contact/. Kimbodo may require that users change Account Information or certain parts of Account Information at any time and for any reason. Unless Kimbodo expressly allows you the right to create and manage Kimbodo IDs as an account administrator for a company or unless expressly permitted in the Additional Terms, you may not use another person’s Account Information.
7.2 As part of registering for the Kimbodo Service, Kimbodo may require you to create a unique URL, such as your_name_here.Kimbodo.com. Such unique URLs may be used solely with the platform Service, only for so long as you maintain a paid for and valid account and shall not be used for any other purpose. Kimbodo may revoke your right to access that URL for any reason deemed appropriate by Kimbodo in its sole discretion by giving you at least twenty one days prior notice of such revocation, except in the event that your URL, or content therein, is determined by Kimbodo in its sole discretion to contain infringing or illegal content or content that otherwise violates the Terms. In such event, Kimbodo reserves the right to revoke your right to use your unique URL immediately without notice. Additionally, Kimbodo owns and retains all right, title and interest in and to the use of “Kimbodo,” and other Kimbodo related property in association with a user’s unique URL. Upon termination for any reason, Kimbodo may permit another user to use the unique URL previously selected by you.
8. User Conduct.
8.1 You agree not to access or attempt to access the platform Services by any means other than the desktop interface provided by Kimbodo or circumvent any access or use restrictions put into place to prevent certain unauthorized uses of the platform Services.
8.2 You agree not to use, or to encourage or permit others to use, the Services to:
- Make Available any Material that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, obscene, child-pornographic, lewd, profane, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
- Stalk, intimidate and/or harass another person or user;
- Incite others to commit violence;
- Harm minors in any way;
- Make Available any Material that you do not have a right to Make Available under any Law or contractual or fiduciary relationship;
- Make Available any Material that infringes any Intellectual Property Right or other proprietary right of any party;
- Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Forge headers or otherwise manipulate identifiers to disguise the origin of any of Materials posted on or transmitted through the Services;
- Use the platform Services or Materials such that it will mislead a User into believing that they are interacting directly with Kimbodo;
- Engage in any chain letters, spam, scam contests, junk email, pyramid schemes, surveys or other duplicative or unsolicited messages (commercial or otherwise);
- Use any Kimbodo domain name as a pseudonymous return email address;
- Make Available any Material that contains software/firmware viruses or any other computer code, files or programs aimed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
- Access or use the platform Services in any way that could damage, disable, overburden or impair any Kimbodo server or the networks connected to any Kimbodo server;
- Intentionally or unintentionally interfere with or disrupt the platform Services or violate any related Laws regarding the access to or use of the Services, violate any requirements, procedures, policies or regulations of networks connected to the platform Services, or engage in any activity prohibited by these Terms;
- Disrupt or interfere with the security of, or otherwise cause harm to, the platform Services, Materials, systems resources, accounts, passwords, servers or networks connected to or accessible through the Services or any affiliated or linked sites;
- Disrupt, interfere with, or inhibit any other User from using the Services or Materials, or other affiliated or linked sites, Services or Materials;
- Access or attempt to access any Material that you are not authorized to access or through any means not intentionally made available through the Services;
- Market any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless expressly allowed to do so by Kimbodo;
- Reproduce, sell, trade, resell or exploit for any commercial purpose, any portion of the Services or any Materials, use of any Service or Materials, or access to any Service or Materials;
- Use any data mining, screen-scrapers, robots, or similar data aggregation and extraction methods in connection with the platform Services or Materials;
- Host, on a subscription basis or otherwise, the platform Services without Kimbodo’s consent, including any related application, (i) to permit a third party to use the Services to create, transmit, or protect any content, or (ii) to conduct conferences or online meeting services for a third party;
- Defraud, defame, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; or
- Collect or store data about other users in connection with the prohibited conduct and activities set forth in Section 8.2.
9. Your Content.
9.1 Storage. Kimbodo may provide online storage for Users’ Content, subject to Section 9.2 below and any Additional Terms that further define the scope of such storage. Unless otherwise stated in any Additional Terms or a separate agreement between you and Kimbodo, Kimbodo has (a) no obligation to save Your Content and (b) no responsibility or liability for the deletion or accuracy of any Materials, including Your Content, the failure to save, transmit or receive submission of Materials, or the security, privacy, protection, storage or transmission of other communications originating with or involving use of the platform Services.
9.2 You expressly agree that Kimbodo retains the right to implement limits on the use of the Materials, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Kimbodo in its sole discretion.
9.3 You agree that you, not Kimbodo, are completely responsible for all of Your Content that you Make Available to the public, whether publicly posted or privately submitted. You assume any and all risks associated with the use of Your Content, including any reference to its accuracy, completeness or truthfulness.
9.4 Settings Related to Use and Access of User Content:
(a) Certain platform Services may allow you to select the level at which such Services restrict access to Your Content. You are completely responsible for applying the requisite level of access to Your Content. If you do not make a selection, the system will default to its most permissive setting.
(b) Kimbodo may allow other registered Users to comment on Your Shared Content unless you disable the commenting feature.
(c) Kimbodo may allow you to import your contacts into the platform Services. For example, Kimbodo may provide the tools to help you upload the email aliases of your contacts. If you supply Kimbodo with your password to sync those contacts, Kimbodo will not save the password after you have uploaded the contact information.
9.5 Licenses to Your Content. Kimbodo mandates certain licenses from you with respect to Your Shared Content in order to use and enable the platform Services. Accordingly, you grant the licenses to Your Shared Content as stated below:
(a) For Your Shared Content that’s Made Available in a public forum, you grant Kimbodo a worldwide, royalty-free, non-exclusive, transferable, and sublicensable license to adapt, display, distribute, modify, perform, publish, reproduce, translate, and use Your Shared Content for the reason of operating and improving the platform Services and enabling your use of the platform Services. You may revoke this license and terminate Kimbodo’s rights to share at any time by making the content no longer shared.
(b) For Your Shared Content that’s Made Available in a public forum or shared privately with other Users of your choosing, you grant those other Users a worldwide, royalty-free, non-exclusive, transferrable, and sublicensable license to display, distribute, perform, and reproduce Your Content, subject to Section 10 of these Terms of Service. If you join or participate in a group that allows for sharing of Your Content within the group, then you also grant the Users within the group a license to change and modify Your Content that you have decided to share with the group. If you do not want to allow other Users these rights, then don’t share Your Content with other Users.
(c) For the Content that is shared privately with other Users of your choosing, you grant Kimbodo a worldwide, royalty-free, non-exclusive, transferrable, and sublicensable, license to distribute, modify, publish, reproduce, translate, and use Your Content for the purpose of operating and improving the Services and enabling your use of the Services. You may remove this license and end Kimbodo’s rights at any time by eliminating Your Content from the platform Service; provided that you agree that Kimbodo may keep and use copies of Your Content for “backup” purposes as pursuant to Section 15 (Investigations).
(d) You may also grant Kimbodo a specific or nonspecific license pursuant to any Additional Terms.
9.6 You acknowledge and accept that the platform Services are automated (e.g., Your Content is uploaded using various software tools) and that Kimbodo personnel will not read, access, view, or listen to any of Your Content, except as reasonably necessary to perform the automated Services, including but not limited to the following: (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, or technical issues; (c) as deemed necessary or advisable by Kimbodo in good faith to conform to legal requirements or comply with legal process; or (d) enforce these Terms, including investigation of potential violations hereof, as further described in Section 15 (Investigations).
10. Shared Content.
10.1 License to Shared Content. Kimbodo grants you a worldwide, royalty-free, and non-exclusive license to distribute, display, download, perform, and reproduce any Shared Content, subject to the restrictions stated in Section 10. In regards to Shared Content Made Available in a group allowing for content sharing, Kimbodo also grants users the license to adapt and modify the Shared Content. The license granted in this Section 10.1 is further limited to your personal, internal, and non-commercial purpose only.
10.2 It is your sole responsibility to understand what limitations, if any, are placed on your Shared Content. Kimbodo cannot and does not watch or control what others do with the Shared Content, nor can Kimbodo prevent them from adding to, modifying or adapting the Shared Content.
10.3 You agree that Kimbodo has no liability should other Users use, modify, destroy, corrupt, copy or distribute your Shared Content in violation of the limitations that you may impose on its use.
10.4 Shared Content may include personal information (such as email addresses) to ease your ability to share Your Content. It is your responsibility for any and all personal information that you or other Users published and submitted in connection with the platform Services. You must follow all data protection and privacy laws and rules that apply to the personal information of other Users.
10.5 These platform Services may allow you to comment on other Shared Contents. These Comments are not anonymous and may be viewed by other Users. Your comments may be deleted by you, other User, or Kimbodo.
10.6 If you are invited by a registered user of the platform Service to engage in shared digital content editing or viewing, and you do not wish to receive email from the user or do not wish to participate, you are required to contact the person who invited you to update, correct or delete the information they provided about you.
10.7 In general, even though Kimbodo might delete an account you hold with us in these types of shared editing or viewing areas, we may continue to keep information regarding your past actions with respect to content reviews or sharing initiated by others.
10.8 Upon removal of Your Content from the platform Service or upon making your Shared Content un-shared, Kimbodo shall have a reasonable amount of time to cease use, distribution and/or display of Your Content. However, you accept and agree that Kimbodo shall have the right, but not the obligation to keep “backup” copies of Your Content or use Your Content pursuant to Section 15 (Investigations).
11. Use of Software.
11.2 Kimbodo may provide mobile, social and tablet applications through third parties that interact with the platform Service and Kimbodo products. You (the users) are responsible for procuring and maintaining any equipment or additional services needed to access mobile, social and tablet applications and you are responsible for all applicable taxes, tariffs and fees incurred while accessing such applications (such as fees from your mobile carrier, overage charges, etc.)
11.3 If there is no license agreement that goes along with the Software that is available for download, the download and use of the Software will be overseen by the terms of this Section: Kimbodo grants you a personal, worldwide, revocable, limited, non-transferable, non-sublicensable, non-assignable, non-exclusive license to use the Software features in the manner allowed by the Terms. For clarification, you shall not distribute, lease, rent, sell, white label or sublicense the Software. You agree that you will not decompile, reverse engineer or otherwise attempt to discover the source code of the platform Software. You will not assign your rights to use the Software, grant a security interest in or over your rights to use the Software features, or otherwise transfer any part of your rights to use the Software. For clarity, your use of the Software is also subject to the disclaimers and limitations in Sections 13 and 14 below and your compliance with the export control provisions of Section 22.
11.4 The platform Software may automatically download and install updates from Kimbodo. These updates are designed to better improve, further enhance and further develop the platform Services and may take the form of fixes, enhanced functionality, new Software modules and new versions. You agree to receive such updates (and permit Kimbodo to deliver these to you with or without your knowledge) as part of your use of the Services.
12. Your Warranty, Indemnification, Obligation, and Waiver.
12.1 You expressly represent and warrant that: (a) you personally own the Intellectual Property Rights, or have obtained all necessary licenses and permissions, to use Your Content with the Services or as otherwise permitted by these Terms; (b) you possess the rights required to grant the license and sublicenses outlined in the Terms; (c) you have gained consent from any and all persons described in Your Content to use Your Content as set forth in these Terms, including distribution, public display, public performance and reproduction of Your Content; and (d) Your Content does not violate or trespass on any intellectual property right or other proprietary right, including right of publicity or privacy, of any person, organization, company or entity, or other third party.
12.2 You agree to completely indemnify and hold Kimbodo and its subsidiaries, affiliates, officers, agents, partners, employees, co-branders or other partners, and licensors harmless from any legal claim or demand, including attorneys’ fees, due to or arising out of Your Content, your use of the platform Services or Materials, your relative connection to the platform Services and Materials, your use and access of personal information of other registered Users, the actions of any member of your public and private group, your access to or use of Sites or the Linked Sites and your connections therewith, any claim that Your Content caused damage to another party, any business connections between you and anyone else advertising or promoting via the platform Services or Materials, your violation of these Terms, or your violation of any rights of another, including any Intellectual Property Rights.
12.3 You acknowledge and expressly agree that by accessing or using the platform Services or Materials, you may be exposed to Materials (including Shared Group Content) from other users that you may consider off-color, offensive, indecent or otherwise objectionable, and agree to accept that risk.
13. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT AS PERMITTED BY APPLICABLE LAWS:
13.1. THE PLATFORM, SITE, SERVICES AND MATERIALS ARE PROVIDED BY KIMBODO “AS IS,” WITHOUT A WARRANTY OF ANY FORM, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, Kimbodo MAKES NO WARRANTY THAT (A) THE SITE, SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS AT ALL TIMES, OR WILL BE ALWAYS AVAILABLE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (B) THE RESULTS THAT MAY BE GATHERED FROM THE USE OF THE PLATFORM, SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (C) THE QUALITY OF THE PLATFORM, SERVICES OR MATERIALS WILL MEET YOUR STANDARDS AND EXPECTATIONS; OR THAT (D) ANY ERRORS OR DEFECTS IN THE PLATFORM, SERVICES OR MATERIALS WILL BE FIXED. NO ADVICE OR INFORMATION, WHETHER SPOKEN OR WRITTEN, OBTAINED BY YOU FROM Kimbodo OR THROUGH OR FROM USE OF THESE PLATFORM SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
13.2. SPECIFICALLY, Kimbodo DISCLAIMS ANY AND ALL LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF OR PARTICIPATION IN ANY SERVICES AND YOUR USE OF THE MATERIALS. ANY MATERIAL DOWNLOADED, MADE PUBLICLY AVAILABLE, OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN INDIVIDUAL DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER HARDWARE OR SYSTEM OR LOSS OF PERSONAL DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. Kimbodo ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR EFFECT THAT IS DOWNLOADED TO YOUR COMPUTER FROM ANY OF THE PLATFORM SERVICES.
13.3. Kimbodo DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES ACCESSIBLE THROUGH KIMBODO LINKED SITES. Kimbodo MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT, AND SHALL NOT BE HELD LEGALLY LIABLE FOR, ANY SUCH THIRD PARTIES, THEIR MATERIALS, PRODUCTS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
13.4. MANAGERS, HOSTS, PARTICIPANTS, MODERATORS AND OTHER THIRD PARTIES ARE NOT KIMBODO SPOKESPERSONS, AND THEIR VIEWS DO NOT REFLECT THOSE OF Kimbodo, INC. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAWS, Kimbodo WILL HAVE NO LEGAL LIABILITY RELATED TO USER CONTENT ARISING UNDER ALL APPLICABLE INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY OR OTHER LAWS. Kimbodo DISCLAIMS ALL LIABILITY IN REGARDS TO THE USE, MISUSE, LOSS, DELETION, MODIFICATION OR UNAVAILABILITY OF ANY USER CONTENT.
13.5. Kimbodo WILL NOT BE HELD LEGALLY LIABLE FOR ANY LOSS THAT YOU MAY HAVE AS A RESULT OF SOMEONE ELSE USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN RELATION WITH THE PLATFORM OR ANY SERVICES OR MATERIALS, EITHER WITH OR WITHOUT YOUR EXPLICIT KNOWLEDGE.
14. Limitation of Liability.
14.1 IN NO EVENT WILL KIMBODO, ITS OFFICERS, CONTRACTORS, CONSULTANTS, DIRECTORS, EMPLOYEES, PARTNERS, CONSITUENTS, LICENSORS, OR SUPPLIERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF KIMBODO HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, OR BASED ON ANY LEGAL THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ORIGINATING OUT OF OR IN CONNECTION TO YOUR USE OF OR ACCESS TO THE PLATFORM, SERVICES OR MATERIALS. NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE KIMBODO’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF KIMBODO OR ITS EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY.
14.2 KIMBODO’S COMBINED LIABILITY AND THAT OF ITS PARTNERS, AFFILIATES, LICENSORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS LEGAL AGREEMENT SHALL BE LIMITED TO $100 OR THE AGGREGATE AMOUNT PAID BY YOU FOR ACCESS TO THE SERVICE DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF KIMBODO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14.3 THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 14 APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW IN YOUR JURISDICTION. SOME LEGAL JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY DIRECTLY TO YOU.
15.1 Kimbodo, at its sole discretion, may (but has no obligation to) monitor or review the Services and Materials at any time. Kimbodo shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if it violates the Terms or any applicable Law.
15.2 Although Kimbodo does not generally monitor all User activity occurring in connection with the Services or Materials, if Kimbodo becomes aware or is made aware of any possible violations by you of any provision of these Terms, Kimbodo reserves the right to investigate such violations, and Kimbodo may, at its sole discretion, immediately terminate your rights to access the platform, including your right to use the Services, or Materials or change, alter or remove Your Content or Account Information, in total or in part, without any notice to you. If, as a result of such investigation, Kimbodo believes that criminal activity has taken place, Kimbodo reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable Law, Kimbodo is entitled to retain and/or disclose any information or Materials, including Your Content or Account Information (or elements thereof), in Kimbodo’s possession in connection with your use of the platform Services to (a) comply with applicable Law, legal process or governmental request; (b) enforce the Terms; (c) respond to any legal claims that Your Content violates the Terms or rights of variousc third parties; (d) respond to your submissions for customer services; or (e) protect the rights, property or personal safety of Kimbodo, its Users, employees or third parties, including the public at large, as Kimbodo in its sole discretion believes to be necessary or appropriate.
You have no obligation to provide Kimbodo with ideas, suggestions or proposals (“Feedback”). However, if you submit Feedback to Kimbodo, we may use it for any purpose without any compensation to you.
17. Advertising and Your Content.
You agree that Kimbodo may display advertisements next to Your Content, and you agree that you are not entitled to any sort of related compensation. The manner, mode and extent of advertising or other revenue generating models pursued by Kimbodo on or in conjunction with the Services and/or Your Content are subject to change without specific notice to you.
18. Links to Other Sites.
The platform Services and Materials may include links that will take you webpages or services not owned/operated by Kimbodo. Whether the link was provided by Kimbodo as a courtesy, or whether it was posted by a Kimbodo user, Kimbodo has no control over non-Kimbodo websites or services. You agree that we are not responsible for the availability or contents of any web site or service we do not own and operate.
19.1 Termination by You. You may cease using the platform Service at any time. You may end Kimbodo’s right to distribute, publicly perform and/or publicly display Your Shared Content by making it no longer shared. You may terminate the remainder of Kimbodo’s rights by removing Your Content from the platform Service, either by removing/deleting it manually, or by contacting Customer Service to have your subscription cancelled, if applicable, and content erased. To terminate your Service Account contact Support at http://www.Kimbodo.com/support/contact/. Any fees/dues paid by you prior to your termination are not refundable. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges.
19.2 Termination by Kimbodo. Subject to Additional Terms for certain Services (such as ones where you pay for access to these Services), Kimbodo may at any time terminate our agreement with you (or any individual Additional Terms) if:
(a) You have breached a provision of these Terms (or have acted in a manner that clearly demonstrates you do not intend to, or are unable to, comply with these Terms);
(b) Kimbodo is required to do so by applicable Law (for example, where the provision of the Services or Materials to you is, or becomes, illegal);
(c) The supplying of the platform Services to you by Kimbodo is, in Kimbodo’s opinion, no longer commercially viable;
(d) Kimbodo has elected to discontinue the platform Services or Materials (or any part thereof); or
(e) There has been an overly extended period of inactivity in your account.
19.3 Termination or Suspension of Services. Kimbodo may also terminate or suspend all, or a portion of your account and/or access to the Services for any reason (subject to Additional Terms for certain Services). Except as may be described in any Additional Terms applicable to a particular Service, termination of your account may include: (a) removal of access to all offerings within the platform Services; (b) deletion of Your Content and personal Account Information, including your personal information, log-in ID and password, and all related information, files and Materials associated with or inside your account (or any part thereof); and (c) barring of further use of the platform Services.
19.4 You expressly and implicitly agree that all terminations for cause shall be made in Kimbodo’s sole discretion and that Kimbodo shall not be held liable to you or any third party for any termination of your account (and accompanying deletion of your Account Information), or access to the Services and Materials, including Your Content.
19.5 Upon expiration or termination of these Terms, you shall promptly discontinue use of the platform Services and Materials. Any of Kimbodo’s disclaimers or limitations of damages of liabilities hereunder and Sections 8-10, 12-17, 19, 23, and 24 will survive any termination or expiration of the Terms.
19.6 Upon termination of your use of the platform Service by you or by Kimbodo for any other reason other than for cause, Kimbodo will make reasonable effort to notify you at least thirty (30) days prior to the termination, at the email address you provide Kimbodo as part of your registration, with instructions on how to retrieve Your Content prior to such termination.
20. International Users.
20.1 Kimbodo Services can be accessed from locations around the world and may contain references to Services and Materials that are not available in your location. These references do not imply that Kimbodo intends to announce such Services or Materials in your specific location.
20.2 The platform Services are controlled, operated and administered by Kimbodo, Inc. from its offices within the United States of America. Kimbodo makes no express representation that the Services or Materials are appropriate or available for consumption outside of the United States. Kimbodo expressly reserves the right to restrict access to the Services or Materials by certain international users. If you access the platform Services from a location outside the United States, then you are responsible for compliance with all applicable local Laws.
21. Notification of Copyright Infringement.
21.1 Kimbodo respects and adheres to all Intellectual Property Rights of others and expects its users to follow suit. Kimbodo will quickly respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”) and its response to such notices may include removing or suspending access to the allegedly infringing digital content, terminating the accounts of repeat offenders, and/or making good-faith attempts to get in contact with the user who posted the questionable content so that he/she may, where appropriate, provide a counter-notification.
21.2 If you under the impression that your content has been used or duplicated in a way that may be deemed as copyright infringement and the infringement is hosted on the platform Services, on websites linked to or from the platform Services, or in connection with the platform Services or Materials, please provide, as described by the the DMCA, written notification via USPS mail or via fax (not via e-mail or phone) of claimed copyright infringement to Kimbodo’s Copyright Agent (contact information below), which must contain all of the following:
(a) A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;
(b) A description of the copyrighted work(s) that you believe have been infringed and identification of what content is claimed to be infringing and which you want to be removed or access to which is to be suspended;
(c) An accurate description of where the content that you claim is infringing is located on the platform Services;
(d) Pertinent information sufficient to allow Kimbodo to contact you, such as your physical address, phone number and e-mail address;
(e) A detailed statement by you that you have a reason that the use of the content identified in your notice in the manner complained of is not authorized by the copyright owner, its agent or the law; and
(f) A detailed statement by you that the information in your notice to Kimbodo is accurate and, under penalty of perjury, that you are the lawful copyright owner or are duly authorized to act on the copyright owner’s behalf.
Before you send such a notification to Kimbodo, please dutifully and carefully consider whether or not the use of alleged copyrighted material at issue is protected by the “fair use” doctrine, as you will be financially liable for costs and attorneys’ fees should you file a takedown notice where there is no actual infringing use. If you are still unsure whether a use of your copyrighted material is indeed infringement, please contact an attorney.
21.3 If you think your access to your specific content was suspended or deleted by Kimbodo as a result of an incorrect or invalid copyright infringement notice, please send, pursuant to the DMCA, written notification via regular mail or via fax (not via e-mail or phone) to Kimbodo’s Copyright Agent (contact information below), which must contain all of the following:
(a) A physical or electronic signature of the user/subscriber;
(b) Exact identification of the digital material that was removed from the platform Services and the location of the Service on which the material was located before it was removed;
(c) A written statement under penalty of perjury that you possess a good faith belief that the material was deleted or suspended as a result of mistake or misidentification of the material to be removed or disabled;
(d) Detailed information sufficient to allow Kimbodo to contact you, such as your physical address, telephone number and e-mail address; and
(e) A written statement that you agree to jurisdiction of the Federal District court for the district where you reside (or of San Diego County, California if you reside outside of the United States) and that you will accept service of process from the person who provided notification under DMCA subsection (c)(1)(C) or an agent of such person.
Before you file a counter-notification, please carefully and dutifully consider whether or not the use of the alleged copyrighted material at issue is in fact infringing, as you will be liable for costs and attorneys’ fees in the event that a court determines your counter-notification misrepresented that the material was removed by mistake.You may wish to consult publicly available reference materials such as those found at www.chillingeffects.org.
21.4 Kimbodo’s Copyright Agent for notice of claims of copyright infringement can be reached at:
3138 A Canon St.
San Diego, CA 92107
By fax: (888) 293-5820
By email: copyright@Kimbodo.com
By telephone: (800) 293-4496
The responding Kimbodo Copyright Agent will not remove the content from the platform Services in response to phone or email notifications regarding allegedly infringing content, since a valid DMCA notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please send these notifications by fax or ordinary mail only and as further described by this Section. The Kimbodo Copyright Agent should only be contacted if you know that your content has been used or copied in a way that constitutes a copyright infringement and that such infringement is occurring on the platform Services or in connection with the Services or Materials. All other inquiries directed to the Copyright Agent will not be responded to.
22. Export Control Laws.
You expressly acknowledge that the platform Services, and Materials are bound to the U.S. export control and sanctions laws (including the Export Administration Regulations) (“Export Controls”) and that you will legally comply with the Export Controls. You will not export or re-export/lease the platform Software or Materials, directly or indirectly, to, or use the platform Services in connection with: (a) any countries that are subject to U.S. export restrictions (including, but not limited to, Cuba, Iran, North Korea, Sudan, and Syria), (b) any end user whom you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems, or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. Also, you are solely responsible for obeying any local laws in your jurisdiction which may impact its right to import, export or use the platform Services, Software or Materials. If Kimbodo has knowledge that a direct violation has occurred, Kimbodo may be prohibited from providing maintenance and support for the Services, Software, or Materials.
23. Resolution of Disputes.
23.1 Location. You expressly agree that any claim or dispute you may have against Kimbodo must be resolved by a court located in San Diego, California, United States of America except as otherwise agreed by the parties, or as set forth Section 23.2 below. You agree to submit to the personal jurisdiction of the courts located in San Diego County, California, United States of America when California laws applies, for the purpose of litigating such claims or disputes. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.
23.2 ADR. For any claim (excluding claims for injunctive or other equitable relief) for less than $10,000, the party requesting relief may elect to resolve the dispute in a cost-efficient manner through binding non-appearance-based arbitration. In the event a party selects arbitration, it shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties involved. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online, and/or be based solely on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
23.3 All claims you bring against Kimbodo must be resolved in accordance with this section. All claims filed or brought contrary to this section shall be construed as incorrectly filed. Should you file a claim contrary to this section, Kimbodo may recover related attorneys’ fees and costs up to U.S. $100,000, provided that Kimbodo has notified you in writing of the improperly filed claim and you have not properly withdraw the claim.
24.1 English Version. Only the English version of this agreement will be the version used when interpreting or construing this agreement.
24.2 Notice to Kimbodo. Any notice provided to Kimbodo pursuant to these Terms should be sent to 3138 #A Canon St. San Diego, CA 92107, Attention: General Counsel.
24.3 Notice to You. Kimbodo may provide you with notices, including those regarding changes to the Terms, by email, regular mail, text message, postings on or within the Services, or other reasonable means now known or hereafter developed.
24.4 Entire Agreement. These Terms constitute the entire agreement between Kimbodo and you with respect to your access to or use of the platform Services and Materials and supersede any prior agreements between you and Kimbodo on such subject matter.
24.5 Non-Assignment. You may not assign or otherwise transfer the Terms, or any right granted hereunder, without Kimbodo’s express written consent.
24.6 Severability. If for any reason a court of competent legal jurisdiction finds any provision of the Terms, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties as reflected by that provision, and the remainder of the Terms shall continue in full force and effect.
24.9 You are solely and primarily responsible for your familiarity, knowledge of and compliance with any laws that may prohibit you from participating in or using any part of the Services.