PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. These terms and conditions (“the Terms”) govern your use of the Web site at
Kiniva INC PORTAL
Services include any Kiniva INC Service Plan or Product Plan or Plan Order that you enter into with Kiniva INC through use of the Kiniva INC web portal located at firstname.lastname@example.org (the “Kiniva INC Portal”). These Terms govern and apply to all Kiniva INC plans available through the Kiniva INC Portal, and any use of the Kiniva INC Portal. In the event of any conflict these Terms will prevail and control any Plan Order Form that you submit requesting Services (“Plan Order”).
“Materials” means any web casts, download areas, white papers, press releases, datasheets, FAQs, product information, quick reference guides, or other works of any kind that are made available to download from the Kiniva INC Portal. Materials are the proprietary and copyrighted work of Kiniva INC and/or licensors and its suppliers.
“Software” means a computer program of any kind, whether owned by Kiniva INC or a third party, whether delivered via download, CD, other media, or other delivery method, including client and/or network security software. Elements of the Software are protected under copyright, trade secret, unfair competition, and other laws.
SCOPE OF SERVICES
You may initiate the Services via telephone, via the Site, or other means made available by Kiniva INC. Kiniva INC will use commercially reasonable efforts to answer your technology problem and resolve the same for a fee as set forth in the Site or as quoted on the telephone, as applicable. Kiniva INC may provide certain portions of the Services via control session, online chat or e-mail. We may set forth limits to the technology we can support. Certain Services may have minimum system requirements. Kiniva INC Services includes Services that are available on a one-time basis, for a fee (“Incidental Services”); as well as subscription Services, which entitle you to more than one Service over a period of time, for a recurring fee (“Subscription Services”).
AUTHORIZATION TO ACCESS YOUR COMPUTER; MONITORING OF THE SERVICES
The Services may sometimes not be successful because the problem may be beyond our ability to resolve . If you have purchased an Individual Service from Kiniva INC, then the following warranty applies: if we are not able to answer your question or resolve your technology problem and you have complied with all of your obligations under these Terms, we will not charge you a fee for the Individual Service. If you experience a problem with the resolution we provided and you call us within five (5) days from the day you originally received the Individual Service, we will use commercially reasonable efforts to try to resolve your problem at no additional charge. If those efforts are unsuccessful, we will refund the fees that you paid for the Individual Service. Kiniva INC makes no warranties or representations with respect to advice, guidance, information or other content posted to the Community portion of the Site or otherwise supplied to the Site by any third party, and expressly disclaims all warranties, express or implied, with respect to Community content and other third party content available on the Site.
DISCLAIMER OF WARRANTIES
YOU UNDERSTAND AND AGREE THAT EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ALL ADVICE, CONTENT, AND SOFTWARE) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OF THE SERVICES, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Kiniva INC DOES NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, ERROR FREE, OR SUCCESSFUL IN RESOLVING YOUR QUESTION OR TECHNOLOGY PROBLEM. Kiniva INC MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS, CONTENT OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES SHALL CREATE ANY WARRANTY. ANY CONTENT OR SOFTWARE THAT YOU ACCESS, DOWNLOAD OR USE WITH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM SUCH ACTIVITIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
USE OF SOFTWARE AND TOOLS
Kiniva INC may need to download and/or run software on your Device to help diagnose and resolve your technology problem. Kiniva INC uses several types of software: the first type provides Device system information to Kiniva INC which helps us diagnose and resolve your technology problem, the second type allows Kiniva INC to ly control your Device and modify its settings or software, and the third type generally consists of utilities and other tools to improve Device performance and help resolve your technology problem. You acknowledge and agree that use of all Kiniva INC software and third party software and tools accessed, downloaded or otherwise provided or made available with the Services (collectively “Software”) are subject to the license agreements that may appear or be referenced when you access or download the Software. You may not access, download or use any Software without agreeing to the terms and conditions of the license agreements without modification. You agree that we may download and utilize Software from third party Web sites and accept any applicable license agreements on your behalf. You hereby acknowledge and agree that we may download and install trial versions of Software that will expire and cease to function after a certain period of time (usually thirty days) unless you purchase a license to continue using such Software. You may use the Kiniva INC Software only in connection with the Services and for no other purpose. You agree that we may, but are not obligated to, remove any Software downloaded to your Device during the Services after we have completed or terminated the Services.
ACCEPTABLE USE POLICY (AUP)
GUESTS: LIMITED PERMISSION TO USE OF Kiniva INC PORTAL
Services against any Plan Order will be available once you have made payment for Services according to the requirements of the corresponding Plan Order. Kiniva INC has no obligation to render Services under any Service Plan if the payments as required under any Plan Order have not been so made. As a Guest you may use the Kiniva INC Portal and Materials (defined below) specifically designated as available to guests on the Kiniva INC Portal for the limited purposes of (a) deciding whether to subscribe to the Services provided by Kiniva INC, (b) registering with Kiniva INC and submitting Plan Orders only. The foregoing grant of access is a non-exclusive and is revocable.
Kiniva INC may provide you with the use of e-mail services, addresses, bulletin board services, instant messaging services, chat areas, news groups, forums, communities, personal web pages, calendars, file cabinets and/or other message or communication facilities designed to enable you to communicate with Kiniva INC’s employees and others as appropriate to your Service under a Plan Order (each a “Communication Service” and collectively “Communication Services”). Communications Services shall only be used under an accepted Plan Order, and not for any other purpose. You further consent to receive calls and e-mails from or on behalf of Kiniva INC regarding your Subscription Services, including renewals thereof and other related product or services from Kiniva INC, which may be of interest to you, at the telephone numbers provided in your Subscription Plan, including your wireless number if provided. Please note that the forgoing consent is not a condition of purchase. If you do not wish to receive such calls and e-mails from Kiniva INC, you can indicate your preference by following the instructions included in such communication or by emailing us at email@example.com or you may contact us at 1-208-817-5678 to opt-out.
LIMITED PERMISSION TO USE THE Kiniva INC PORTAL, MATERIALS AND SOFTWARE
As permitted through a Service, you may use Materials and Software (as defined below) posted on the Kiniva INC Portal, or made available in connection with a Plan Order which may be available for additional purposes and or subject to additional restrictions.
GENERAL USE RESTRICTIONS
Any other use of the Kiniva INC Portal, Services, Materials or Software, other than as explicitly permitted by Kiniva INC is prohibited. Rights to execute, copy, modify, display, transmit, distribute, manufacture, use, sale are all reserved to Kiniva INC and its suppliers. Reverse engineering and de-compilation of the Software is strictly prohibited.
You must cooperate with Kiniva INC and promptly respond to our requests for information and comply with our requests to take actions to resolve your technology problem. In order to help resolve your technology issue, you may be required to consent to the downloading and use of Software on your Device and accept all applicable license agreements for the Software. In connection with obtaining Services, you agree that you will: 1. Cooperate with the Kiniva INC Engineer: We will use commercially reasonable efforts to provide the support to you. Our experience shows that most issues can be corrected with close coordination cooperation between you and the engineer. Please listen carefully to the engineer and follow the engineer’s instructions. You must confirm that the following conditions are true: 1.1 The situation giving rise to the question is reproducible on a single system, i.e., one central processing unit with its workstations and other peripherals; 1.2 You must have knowledge regarding the hardware system, any software involved, and in the facts and circumstances surrounding the incident; 1.3 The full system, including software and hardware, is available to you and accessible by you without limit during any telephone discussions with Kiniva INC support personnel. 2. Software/Data Backup: You understand and agree that Kiniva INC shall under no circumstance be responsible for any lost or corrupted software or any kind of data belonging to you on the device being serviced or any external device connected to it in anyway, while performing the Services for you. Kiniva INC strongly recommends that you at all times maintain a complete back up of data and disaster recovery plan. 3. Account, Password, and Security: For you to submit a Plan Order, you must complete the Registration Process by providing us with current, complete and accurate information as prompted by and required under the applicable Registration Form. You also will choose a password and a user name. You are solely and entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account. You hereby agree to notify Kiniva INC immediately of any unauthorized use of your account or any other breach of security. Kiniva INC will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Kiniva INC or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
FEES AND PAYMENT
The applicable fees for the Services you order may be quoted on the telephone and/or may be available on the Site. The fee for the Services will be charged directly on your credit card/debit Card/ Bank Account and you agree to pay the charges applicable to the Services selected by you, as well as any applicable taxes. For Subscription Services, the applicable fees will depend on the type of subscription that you purchase, and the duration of the subscription. A one time, non-refundable set-up fee (“Set up Fee”) applies to all Subscription Services. For Personal and Business Subscriptions, the minimum subscription duration is one (1) months. Unless you have purchased a special or trial offer Subscription Service that specifically provides other terms for cancellation and/or refund, you may cancel any Subscription Service within five (5) days following your purchase of the Subscription Service, by contacting Kiniva INC where after , the fees for the Subscription Service shall not be refunded. By authorizing us to charge your credit card for Subscription Service purchased by you and Set Up Fee, where applicable, you hereby further authorize Kiniva INC to continue to charge your credit card (or a replacement card, if the credit-issuing entity informs Kiniva INC that a replacement card has been issued) for all fees associated with the Subscription Service, including renewals. You must contact Kiniva INC if you wish to renew your Subscription Service; if you do not contact Kiniva INC, the Subscription Service that you selected will not be automatically renewed. If you choose to cancel or not renew your Subscription Service, you must notify us of your intent to cancel. The cancellation or the non-renewable, as the case may be, shall be effective from the next billing period immediately following your notice to cancel your Subscription Services. You will continue to have the benefits of your Subscription Service until the end of your current billing period. Except as otherwise set forth in these terms and conditions, if you terminate your Subscription Service before completing its term or Kiniva INC terminates it for your violation of these Terms, then you agree to pay Kiniva INC, the early termination fee as set forth in the Service Plan you have chosen.
The Services may not always be available in your time zone or geographic location. The Services may not always be available due to system maintenance or Internet service disruptions. In order to obtain Subscription Services, you must at all times have current and functional antivirus software in place and running on your Device. Failure to maintain such software may result in additional charges and fees. In order to purchase Subscription Services, your covered Device(s) must be virus free (as determined by us) at the time that you purchase the Subscription Service. If We determine that your Device is infected by a virus, we may require that you purchase a service to clean your Device prior to obtaining Subscription Services. Kiniva INC reserves the right to terminate your Subscription Service, upon notice, if Kiniva INC determines, in its sole business judgment, that your Subscription Service is being used (a) fraudulently, (b) maliciously, (c) by any person other than you, (d) for any Device other than a registered system, (e) unreasonably. In the event that your Subscription Service is terminated, Kiniva INC will refund to you a pro rata portion of any fees that you have prepaid for the Subscription Services. Subscription Services may be subject to additional requirements, limitations, and restrictions depending on the subscription level you purchased. Please refer to the Site for details on those restrictions. Unless otherwise agreed to in writing between you and Kiniva INC, any degradation or interruption in the Software or Services shall not give rise to a refund or credit of any fees paid by you.
USE OF THE SERVICES
Your use of the Services is only for your personal and internal business purposes on your technology, and not for commercial use, including resale or transfer to others. You may not sell, lease or rent access to or use of the Services. You may not allow manufacturers, suppliers or vendors of your technology or providers of services relating to such technology, to access or use the Services.
USE OF THE CONTENT
You may not use, download or copy any information, data, text, photographs, graphics, video, or other materials provided with the Services (“Content”) unless: (1) You use the Content solely for personal, informational and non-commercial purposes; (2) Kiniva INC’s trademarks and copyright symbol and statement set forth on each page of the Site appears on each downloaded or copied page; and (3) no modifications are made to any Content. The rights granted to you in connection with the Services do not constitute a sale or transfer of title. Kiniva INC reserves the right to revoke the authorization to view, download and print the Content available on the Site at any time, and any such use shall be discontinued immediately upon notice from Kiniva INC. Except as expressly provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit or distribute any Content from the Services in whole or in part without the prior written permission of Kiniva INC. Any rights not expressly granted herein are reserved by Kiniva INC.
You shall not: (a) “mirror” any Content on the Site on any other server without Kiniva INC’s prior express written permission, (b) use the Service for any illegal purpose, (c) misuse, abuse or make any unauthorized use of any property, network, website, personnel or equipment of Kiniva INC or its customers or its suppliers, including but not limited interfering with or otherwise disrupting networks connected to the Service, (d) engage in any activities or actions in connection with the Services that infringe or misappropriate the intellectual property rights of others, including without limitation, copyright, patent, trademark, trade secret and confidential information, (e) engage in any activities that violate the personal privacy or publicity rights of others; (f) access, monitor or use data, traffic, computers, systems, facilities or networks provided with or accessible from the Services, without proper authorization, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; (g) send unsolicited commercial messages, advertising, informational announcements or communications in any form (“SPAM”) in connection with the Services; or (h) interfere with the Services or any system, service, network, or person accessible from the Services, including without limitation deliberate attempts to overload a system by the multiple postings of messages. If you have purchased Personal Subscription Services, the subscription applies to all peripheral devices (e.g. printers, cameras, home networks) that are attached to your personal computer at the time that you purchase the Subscription Services. Activation or troubleshooting of other peripheral devices (e.g. devices that are acquired after the date of your Subscription Services purchase) may require an additional fee. If you have purchased Family or Home Office Subscription Services, you may obtain Services for the permitted number of personal computers, provided that all of those computers are located at a single physical address or, under the Family Plan only, are with a student at a school, college or university in the United States or Canada. Personal computers located at any other physical address cannot be added to the Family or Home Office Subscription. If you have purchased Business Subscription Services, you may obtain Services for the permitted number of computers belonging to your business. Each of your computers covered by your Business Subscription will receive a unique identifier. You may not obtain services for your business computers unless the identifier matches a record in our system. If you wish to remove one business computer/device from your Business Subscription and substitute another business computer/device, please contact us. It’s at the sole discretion of Kiniva INC to accommodate such a request.
MODIFICATIONS TO THE SERVICES
We reserve the right, for any reason, in our sole discretion and without notice to you, to modify, terminate, change, suspend or discontinue any and all aspects of the Services, including Content, Software, features and/or hours of availability, and we will not be liable to you or to any third party for doing so.
While we use reasonable security measures to deliver the Services, you understand and acknowledge that no data transmission over the Internet can be guaranteed to be 100% secure and in any event we cannot guarantee that any personal information you submit to us will be free from unauthorized intrusion.
All comments, feedback, information (other than your personally identifiable information (PII) or billing information) or materials submitted to Kiniva INC (“Submissions”) shall be considered non-confidential and Kiniva INC’s property. By providing such Submissions to Kiniva INC, you agree to assign to Kiniva INC, at no charge, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. Kiniva INC shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. As part of any subscription Services purchased by you, you acknowledge and agree that Kiniva INC may retain some of your personally identifiable information (PII) or billing information for purposes of record retention and for purposes of billing any renewals of the subscription Services, which shall not be subject to the foregoing assignment provision. You acknowledge that you are responsible for the Submissions that you provide, and that you have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright. You hereby represent, warrant and agree that you shall not upload post, transmit, distribute or otherwise publish through the Site, or any service or feature made available on or through the Site, any materials which are, do, or could reasonably be construed to be or do any of the following: • Restrict or inhibit anyone from using and enjoying the Site or the Site’s services; • Are fraudulent, unlawful, threatening, abusive, harassing, libellous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, or that threatens or invites violence, or that is derogatory of others on the basis of gender, race, ethnicity, national origin, religion, sexual preference or disability; • Constitute or encourage conduct that would constitute a criminal offense, give rise to potential civil liability or otherwise violate any local, state, national or international law; • Violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, trade secret, confidentiality, contract, patent, rights of privacy or publicity or any other proprietary right; • Contain a virus, spyware, or other harmful component; • Contain embedded links, advertising, chain letters or pyramid schemes of any kind; • Constitute or contain false or misleading indications of origin, endorsement or statements of fact; or • Contain sensitive, proprietary or confidential information about yourself or others. • Except as may be expressly permitted in connection with one of the Site’s services, you also may not offer to buy or sell any product or service on or through your Submissions. We will not accept responsibility for any information included in any Submissions created or posted by third parties. You alone shall be responsible for the content and consequences of any and all of your activities and you submit Submissions absolutely at your own risk. By submitting or sending Submissions to us, you hereby : (i) represent and warrant that the Submissions are not confidential or secret, and no confidential or fiduciary relationship is intended or created between you and us in any way, (ii) represent and warrant that the Submissions are original to you, that no other party has any rights thereto, and that any “moral rights” in Submissions have been waived, and (iii) grant us and our affiliates a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sub licensable right and license to use, copy, reproduce, modify, adapt, print, publish, translate, create derivative works from, distribute, perform and display such material (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed, including for promotional and/or commercial purpose, and to authorize others to do so. We cannot be responsible for maintaining any Submissions that you provide to us, nor are we responsible for any information included in any Submissions (for example, without limitation, a blog post or any comments to blog(s) created or posted by Users), and we may delete or destroy any such Submissions at any time.
Kiniva INC respects the proprietary rights of software and hardware manufacturers and will not install or support materials which are unlicensed to the best of its knowledge. The Services, and the Software and Content provided with the Services, are protected by law including copyright, trademark, service mark, patent or other proprietary rights and laws. Kiniva INC is the copyright owner or licensee of the Services, Software, and Content, unless otherwise indicated. If you make use of the Services, Software or Content, other than as expressly provided herein, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material, patents or any other intellectual property by including them with the Services.
Currently, the Services are only available for residents of the United States and Canada. Kiniva INC may, from time to time, offer promotions to residents of other countries. You hereby agree to comply with all applicable laws and regulations, including without limitation, United States export laws and regulations. You hereby represent and warrant that you are not on the United States’ prohibited party list and not located in or a national resident of any country on the United States’ prohibited country list.
AVAILABILITY OF SERVICES AND MATERIALS UNDER FORCE MAJUERE CIRCUMSTANCES
You hereby acknowledge that circumstances outside of Kiniva INC’s reasonable control (e.g., acts of God, an outbreak of computer viruses, strikes, riots, war, other military action, civil disorder, act of terrorism, fires, floods, vandalism, sabotage, acts of third parties, or the like) may cause significant delays in Kiniva INC’s ability to schedule a support session. You hereby release Kiniva INC from any and all liability, and agree that Kiniva INC shall not be liable to you or any third party for any direct or indirect damages whatsoever, resulting from such delays. Kiniva INC or its suppliers may, at any time, without notice or liability, restrict the use of the Service or limit its time of availability in order to perform maintenance activities and to maintain session control.
Kiniva INC is not obligated to perform any the following: 1. Any item or activity not covered by the terms of a Plan Order; 2. Service beyond the duration limitations identified in your Plan Order; 3. Problem diagnosis and support that may not be completed because of a problem with your computer or other equipment, or their configuration that is beyond our control; 4. Software, including the operating system and software added to the registered hardware products which are out of scope for the Service Plan; 5. Problems that may and do result inter alia from: 5.1 External causes such as accident, abuse, misuse, or problems with electrical power; 5.2 Usage that is not in accordance with product instructions provided by manufacture; 5.3 Failure to follow the product instructions provided by manufacturer or failure to perform preventive maintenance; 5.4 Problems caused by using accessories, parts, or components not compatible with the product: or 5.5 Non-Compliance with the Kiniva INC engineer instructions for resolving the query.
THIRD PARTY SOFTWARE
As part of the Services, Kiniva INC may suggest that you acquire, install and use certain third party software (“Third Party Software”). Third Party Software is licensed to you by the respective owners or licensors of the Third Party Software. You are required to and must agree to the terms and conditions set forth by such owners or licensors before installing Third Party Software, whether or not Kiniva INC directly assists you in the acquisition, installation, and/or use of Third Party Software. Kiniva INC has no rights to the Third Party Software and does not license Third Party Software to you or make any representation or warranty regarding the Third Party Software. To the extent that we provide technical assistance and support for Third Party Software or equipment, you must ensure that you comply with the terms and conditions under which you licensed such Third Party Software or purchased such equipment. We make no warranty that we are an authorized service provider for Third Party Software or for any equipment; it is your sole responsibility to determine if you require additional rights for us to provide such support and if so, to acquire such rights. You acknowledge that support of Third Party Software or equipment by an unauthorized service provider may void any warranty made by the supplier of such Third Party Software or equipment.
THIRD PARTY SERVICES
As part of the Services, Kiniva INC may suggest certain third party services to you (“Third Party Services”). If you choose to subscribe to or otherwise use any Third Party Services, your use of any such services is subject to the terms of service of such third party service provider. You hereby agree to comply with such provider’s terms of service and that the third party provider is solely responsible for delivery of its service(s) to you and your use of them. Third Party Services include, but are not limited to technical support, portal, training, music, gaming and storage services that Kiniva INC may elect to make available from time to time. Violation of such third party provider’s terms of service may, in Kiniva INC’s sole discretion, result in the termination of your customer account and use of service.
LIMITATIONS ON ACTIONS
Any cause of action by you must be commenced within one (1) year after the cause of action arose or it shall be forever waived and barred.
YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD Kiniva INC, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES HARMLESS AT ALL TIMES FROM ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, IN ANY WAY ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES OR YOUR VIOLATION OF THESE TERMS.
LIMITATION OF LIABILITY
IN NO EVENT SHALL Kiniva INC, ITS SUPPLIERS, AND REFERRAL PARTNERS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER FROM CONTRACT, TORT (INCLUDING NEGLIGENCE), MISPRESENTATION, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, SOFTWARE, CONTENT OR YOUR DEVICE AND OTHER TECHNOLOGY INCLUDING, WITHOUT LIMITATION, LOST SALES, LOST REVENUE, LOST PROFITS OR OTHER LOSS OF BUSINESS, LOSS OF OR DAMAGE TO DATA, OR COST OF SUBSTITUTE SERVICES EVEN IF Kiniva INC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF Kiniva INC, ITS SUPPLIERS, AND REFERRAL PARTNERS TO YOU IN THE AGGREGATE FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OR YOUR USE OF THE SERVICES, SOFTWARE OR CONTENT EXCEED THE GREATER OF THE AMOUNT PAID FOR THE SERVICES AT ISSUE OR US$100.00. IN CASE THE AMOUNT PAID FOR THE SERVICES AT ISSUE IS LESS THAN US$100.00, THEN Kiniva INC’S LIABILITY SHALL BE LIMITED TO THE AMOUNT WHICHEVER IS LOWER. YOU HEREBY AGREE THAT THESE LIMITATION OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR Kiniva INC ‘S SALE OF SOFTWARE OR SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
TERM AND TERMINATION
Kiniva INC in its sole election may terminate or suspend your Service immediately without notice if: a) you are in breach of any of these Terms (including but not limited to all policies regarding abuse and acceptable use of the Service) or any license for Third Party Software; b) your use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, Kiniva INC’s network, or the use and enjoyment of Kiniva INC’s other users; c) Kiniva INC receives an order from any regulatory/legal authority or court to terminate the Service you are using ; d) if Kiniva INC for any reason ceases to offer the Service; e) if you are no longer a Kiniva INC customer, or f) Kiniva INC determines that you are abusing the Service. Kiniva INC, in its sole discretion, may refuse to accept your request for the Service, renewal or re-subscription following a termination or suspension of your use of the Service.
Kiniva INC reserves the right to amend the Terms, and the Kiniva INC Portal at any time by (a) posting a revised version of the Terms on the Kiniva INC Portal, or by (b) sending information regarding any amendment to the Terms of Service to the email address you provide to Kiniva INC in connection with registration. You are responsible for regularly reviewing the Kiniva INC website to be notified of any amendments to the Terms. Your use of the Kiniva INC Portal or the Services after an amendment to the Terms shall be deemed acceptance by you of the amended Terms.
This Agreement and the rights and obligations of the parties under this Agreement and any disputes arising out of or in connection with this Agreement shall be governed in all respects by the laws of the state of Texas without regard to conflicts of law principles that would require the application of the laws of any other jurisdiction. You further agree to the jurisdiction of the federal and state courts situated in the state of Texas.
You and Kiniva INC will attempt to resolve any Dispute through negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mediator agreed to by the parties, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event we are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, we shall be free to pursue all remedies available at law or in equity.
This version of the Terms is effective as of __. The Agreement governs your use of the Services, superseding any prior or contemporaneous agreements between you and Kiniva INC. The failure of Kiniva INC to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. You may not assign the Agreement or any of your rights or obligations under the Agreement without Kiniva INC’s express written consent. The Agreement inures to the benefit of Kiniva INC’s successors, assigns and licensees. The section titles in the Terms are for convenience only and have no legal or contractual effect.
You hereby agree that you shall at all times and from time to time indemnify, defend, and hold Kiniva INC, its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third-party web site providers harmless from and against all claims, demands, actions, liabilities, losses, expenses, damages, and costs, including actual attorneys’ fees, resulting from your violation of these terms and conditions , misuse or abuse of a Service, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity whatsoever. You hereby further agree that you shall at all times and from time to time cooperate as fully as reasonably required in Kiniva INC’s defence of any claim. Kiniva INC reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Kiniva INC. You agree immediately to notify Kiniva INC of any unauthorized use of your account or any other breach of security known to you.