Terms and Conditions of Use
Terms and Conditions of Use
Last revised and effective as of December 10, 2010
Welcome to the Kevin Costner & Modern West online experience, and thank you for visiting!
This website is operated by NXTM, LLC (“NXTM”) on behalf of Kevin’s Music, LLC (the “Company,” and collectively with NXTM, “we,” “us,” or “our”). The following are terms of a legal agreement (“Agreement”) between you and us. We provide use of the website(s) where these Terms and Conditions of Use (these “Terms”) are posted, including but not limited to www.kevincostnermodernwest.com and related online experiences (collectively, the “Site”) subject to these Terms. These Terms apply to a user (“user,” “you,” or “your”) who accesses, browses and/or otherwise uses the Site and/or the activities and services provided by this Site, including posting and viewing videos, photographs, music and other content, retail services, bulletin boards, forums, comments, chats, and all other areas (the “Services”) as provided by us (except to the extent stated otherwise on a specific page). By accessing, browsing and/or otherwise using this Site, you acknowledge that you have read, understood and agreed, on your own behalf and on behalf of your children accessing, browsing or otherwise using the Site, to be bound by these Terms, and to comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations. You further acknowledge and agree that your access to and use of the Site and the Services are valuable benefits that you receive by agreeing to, and complying with, these Terms. If (a) you do not agree to all of these Terms, or (b) are prohibited from accessing or using the Site or Services by applicable law, you may not access, browse and/or use this Site, and should discontinue these activities immediately. The material provided on this Site is protected by law, including, but not limited to, United States copyright law and international treaties. Please read this Agreement carefully as it governs your use of the Services and this Site. If you have any questions regarding this Agreement, or any agreement or document herein incorporated, please contact us at firstname.lastname@example.org (This email address is only for usage questions, please do not send customer service questions via this address.).
This Agreement applies to your access to, and browsing and/or use of, this Site and the Services and does not alter in any way the terms and conditions of any other agreement you may have with us for products, software, services or otherwise, unless otherwise directed by us. If you breach any of these Terms, your authorization to use this Site and the Services automatically terminates and you must immediately destroy any downloaded or printed Materials (as hereinafter defined) and discontinue use of any hyperlinks to this Site.
By accessing, browsing and/or using this Site and the Services, you consent to receiving electronic communications from us. You agree that all notices, agreements, disclosures, and other communications that are sent to you electronically by us shall satisfy any and all legal requirements that such communications be in writing.
We may revise this Agreement at any time for any reason at our sole discretion without notice by updating this posting. By accessing, browsing and/or otherwise using this Site you agree to be bound by any such revisions and should therefore periodically visit this Site and page to determine the then current Terms to which you are bound. Any new Materials, Content, Services or features on this Site shall be subject to this Agreement.
In the case of any violation of these Terms, we reserve the right to seek all remedies available for such violation, whether by law, in equity or otherwise. Your failure to follow these Terms may result in suspension or termination of your access to the Site, without notice, in addition to other available remedies.
1. Copyright. All Site materials, including, without limitation, any software, features, functions, Services, algorithms, designs, objects, documentation, know-how, art, code, data, text, photos, pictures, animation, graphics, images, audio, video, logos, icons, audio-visual elements, links, downloadable materials, non-downloadable materials, other files, the look-and-feel, design, layout, organization, presentation, user interface, navigation and stylistic convention of the Site, and the selection and arrangement thereof (the “Materials”) are copyrighted Materials, ALL RIGHTS RESERVED. The Company, NXTM and/or their respective subsidiaries, affiliated companies, service providers, distributors, vendors, contractors, licensors and/or licensees (the “KC Parties”) are the exclusive owners or licensees of all Materials and of all related intellectual property rights, including, without limitation, all copyrights, moral rights, derivative rights, trade secrets, goodwill, trademark rights, trade dress rights, rights of publicity and patent rights.
The entire Materials is the subject of a copyright as a collective work and elements of the Materials are the subject of copyrights as individual works, under the United States and other copyright laws, and are also protected by trademark law, trade dress law, and other state and federal laws.
2. Trademarks. The trademarks and/or trade dress, service marks, trade names, and logos (the “Marks”) used and displayed on this Site are registered and unregistered trademarks of KC Parties, their suppliers or other third parties. In addition, the Marks include, but are not limited to, all page headers, custom graphics, button icons, and scripts, which may not be copied, imitated or used, in whole or in part, without the prior written permission of the KC Parties or the owner of the Mark(s) at issue. Except as expressly provided herein, nothing on this Site shall be construed as granting, by implication, estoppel or otherwise any license or right to use any Marks used or displayed on the Site, without the express written permission of the KC Parties or the owner of the Mark(s) at issue. The misuse or unauthorized use of the Marks, or of any word, term, name or symbol that dilutes any of the Marks or is likely to cause confusion or mistake with respect to the user’s connection or association with Kevin Costner & Modern West or the KC Parties, or any of their approvals or sponsorships of the user’s products or services, is strictly prohibited. All other trade names, trademarks and service marks that appear on the Site are the property of their respective owners.
You may not copy, reproduce, modify, distribute, transmit, display, perform, publish or otherwise exploit, through any means or media, any of the Marks, except as may be allowed by The Trademark Act of 1946 (Lanham Act), 15 U.S.C. § 1051 et seq.
3. The Site Materials. This Site, the Materials, the Marks, the Services, including, without limitation, any internet operations, design, content, hardware designs, algorithms, software (in source and object forms), user interface designs, other templates and designs, algorithms, architecture, class libraries, and documentation (both printed and electronic), know-how, good will, moral rights, trade secrets and any related intellectual property rights throughout the world in any of the foregoing, and any derivative works, improvements, enhancements or extensions thereof, are and shall remain the sole and exclusive property of the KC Parties, their suppliers, affiliates or other third parties. You do not acquire any ownership interests in any Materials or the Marks by accessing, browsing or otherwise using the Site.
4. Content. You understand that all postings, messages, information, data, text, files, images, photos, images, pictures, graphics, audio and video clips or other materials posted on, transmitted through, or linked on this Site (collectively, the “Content”), including but not limited to advice and opinions, are the views and sole responsibility of the poster and do not necessarily represent the views or opinions of the KC Parties. You understand and agree that the KC Parties do not control, prescreen, or approve and are not responsible for, and shall have no liability to you with respect to any, Content or Submission made available through this Site. We do not necessarily verify, encourage, agree, endorse, support or sanction any of the content placed on the Site by visitors to the Site, including but not limited to comments, information, opinions, statements, video, audio, photographs, data, communications, links or other Content posted web pages, forums, blogs, bulletin boards or otherwise. You further understand that by using this Site, you may be exposed to Content that is offensive, indecent, inaccurate, misleading, defamatory, illicit, or otherwise objectionable. You agree that you must evaluate, and bear all risks associated with the use of any Content, that you may not rely on said Content, and that under no circumstances will the KC Parties be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise made available via this Site, even if such Content is in violation of these Terms. The KC Parties make no representation or warranty as to the accuracy, completeness or authenticity of the information contained in the Content. The KC Parties shall have the right (but not the obligation) in their sole discretion to refuse, delete or move any Content for any reason.
Your interactions with organizations, events and/or individuals found on or through the Site are solely between you and such organizations and/or individuals. The KC Parties expressly disclaim any liability for such organizations, events or individuals. Your linking to or visiting any other websites from or through the Site is at your own risk.
5. Your Content. We do not claim ownership of the Content you provide to us (including feedback, suggestions, purchases, information, audio, video, photographs, images, preferences, text or ideas) or post, upload, transmit, input or submit to the Site (“Your Content”). We do not ask for, nor do we wish to receive, any confidential, secret or proprietary information or other material from you through the Site, by e-mail or in any other way. However, by posting, uploading, inputting, providing or submitting Your Content, you are granting us, and our affiliates and licensors, a perpetual, irrevocable, worldwide, royalty-free and fully-sublicensable (through multiple tiers) and assignable right to use Your Content, including, without limitation, the license rights to: (a) copy, distribute, transmit, publicly display (publically or otherwise), publicly perform, reproduce, edit, modify, translate, reformat, publish, sell, adapt, create derivative works from, and otherwise use, without restriction as to changes or transformations, whether or not in conjunction with your own or a fictitious name, any text, image or other material in connection therewith, Your Content, or any reproductions, adaptations, modifications, derivative works, digital images or prints thereof and/or based thereon, in color or otherwise, for any purpose that we may choose, in our sole discretion, and through any means or media, whether now existing or subsequently developed, for the Site, promotion, advertising, trade, as part of commercial products or product packaging, trademark or trade dress thereof, or any other purpose whatsoever and without any compensation to you or any third party (it being understood that the foregoing shall include the right to exploit any and all intellectual property or proprietary rights in Your Content including, without limitation, rights protected under applicable copyright, trademark, trade secret, rights of publicity/privacy, patent and other laws throughout the world); and (b) sublicense or assign any such rights. No compensation will be paid with respect to the use of your Content as provided herein. We are under no obligation to post or use any of Your Content, and we may remove any of Your Content at any time in our sole discretion. You agree to relinquish any right that you may have to examine or approve of Your Content, or the copy or printed matter that may be used in conjunction therewith or any use to which Your Content may be applied, and release, discharge and agree to hold harmless KC Parties, those for whom any such parties are acting, those acting with the authority and permission of any such parties, and the heirs, legal representatives, successors, employees, agents and assigns of all of the foregoing, from any and all liability by virtue of any blurring, distortion, alteration, optical illusion, or use in any form, whether intentional or otherwise, that may occur or be produced in any creation, reproduction, alteration, modification, display, distribution, publication or other use of Your Content, including without limitation any claims for defamation, false light, libel, or infringement or invasion of any right of privacy or publicity. By submitting Your Content you: (a) warrant and represent that Your Content is original to you, that you own or otherwise control all of the rights to your Content , or that you have the rights and permissions necessary to grant the license in this section and to enable inclusion and use of Your Content in the manner contemplated by the Site and these Terms including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Content, and (b) represent and warrant that Your Content does not violate any rights, including the rights of privacy or any copyright, trademark, trade secret or other proprietary right, of any party and does not otherwise violate the law.
Further, you acknowledge, consent and agree that the KC Parties may access, preserve and disclose your account information and Your Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process, (b) enforce this Agreement and any documents incorporated herein, (c) respond to claims that any of Your Content violates the rights of third parties, (d) respond to requests for customer service, or (e) protect the rights, property or personal safety of the KC Parties, its users, and the public. You understand that the technical processing and transmission of the Services, including Your Content, may involve (x) transmissions over various networks, and (y) changes to conform and adapt to technical requirements of connecting networks or devices.
6. Grant of License. The KC Parties hereby grant to you a limited, worldwide, non-exclusive, non-transferable, non-sublicenseable, and revocable license to use the Services and/or the Materials for personal, noncommercial use only, subject to the restrictions in this Agreement.
You may access, browse and use the Site and Materials only for your personal, non-commercial use, on a single computer or other Internet-compatible device to enable you to use the Site. Subject to these Terms or any expressly stated restrictions or limitations relating to specific material, you may also electronically copy, download and print only such limited number of hard copies of discreet excerpts of the Site or Materials as needed for the sole purposes of making a product purchase, return or inquiry. Other than the foregoing, you may not copy, reproduce, modify, distribute, transmit, display, perform, publish or otherwise use or exploit, through any means or media, any of Materials, except as may be allowed by Sections 107, 108 and 110 of Title 17 of the United States Code, 17 U.S.C. §§ 107-108 and 110 (“Your Exempt Use”). Your Exempt Use will be, at all times, prominently accompanied by: (i) a copyright notice in the form identical to the copyright notice appearing on the Content that is the subject of your Exempt Use, and (ii) a credit line in the form of the phrase “Accessed on” followed by the date of your access and the URL of the Site where you accessed such Materials. You further agree not to change or delete any proprietary notice from materials copied, downloaded or printed from the Site as permitted herein.
7. License Restrictions. You acknowledge and agree that you do not acquire any ownership rights by using the Site, the Services, the Marks or the Materials. Other than as expressly permitted herein, you may not: (a) copy the Services or any software or programming related thereto; (b) access, use, license, modify, distribute, copy, reproduce, display, republish, download, upload or transmit any Materials on this Site, in whole or in part, for commercial use or otherwise, without the prior written our approval; (c) download, archive, store, copy, reproduce, compile, recompile, use, modify, adapt, translate or prepare any summaries, abstracts, derivative works or materials of the Site or any Materials, in whole or in part (except that you may exercise the limited rights to access, view and print in accordance with the terms above); (d) “frame” or “mirror” any Materials contained on this Site on any other server without our prior written permission; (e) permit other individuals or companies to use the Services and/or the Materials; (f) collect, compile or recompile any Materials, including, but not limited to, any photographs, product listings, product designs, descriptions, references, images, terms of purchase or sale, prices or other data, information or other content obtained or derived from or through the Site; (g) modify, translate, reverse engineer, decompile, disassemble or create derivative works based upon this Site, Materials, Services, or any software or programming related thereto, (h) rent, lease, transfer, resell and/or or otherwise transfer rights to the Marks, the Materials or the Services, or (i) delete or write over any portion of any software relating in any manner to the Site or the Services. You also agree that you shall only use this Site, the Services, the Marks and the Materials in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, and that your use of this Site, the Services, the Marks and the Materials is subject to all applicable local, state, national and international laws and regulations. You agree that your use of this Site and the Services shall not violate or infringe the rights of any third party. Any forbidden use shall immediately and automatically terminate your license to use the Services and the Materials without notice. You shall be solely responsible for hardware and interconnections and telecommunications to access the Services.
No right, license or permission is granted to you by these Terms, including, but not limited to, any right, license or permission to copy, reproduce, distribute, publish, transmit, download, display in public, or modify the Site or any of the Materials in any manner, to any extent, by any means, in any medium or for any purpose, other than those expressed herein.
8. Additional Use Restrictions. You may only use this Site, the Services, the Marks and the Materials as expressly permitted herein, as long as such use is in a manner that, in our sole judgment, is consistent with the intended purposes thereof. If you are unsure of whether any contemplated use or action is permitted, please contact us at email@example.com. By way of example, and not limitation, you agree not to:
a) Use this Site for any commercial purpose, such as conducting sales of tickets, merchandise or services of any kind. Without limiting the foregoing, you may not resell or link to other sites for the purpose of selling tickets of any kind.
b) Use the Site or its Services in violation of any applicable law or for any unlawful purpose.
c) Use this Site or the Services if you are temporarily or indefinitely suspended from the Site.
d) Access, or attempt to access, other areas of our computer system or other computer systems through this Site for any purposes.
e) Use any robot, spider, other automatic device, or manual process to “screen scrape,” monitor, “mine,” or copy the Web pages on this Site or the content contained hereon without our prior, express, and written permission.
f) Use any device, software or routine to interfere, or attempt to interfere, with the proper working of this Site or take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
g) Upload, post, email, or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, fraudulent, misleading, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racially, ethnically or otherwise objectionable or infringes our or any third party’s intellectual property or other rights; (ii) is derogatory or harmful to our reputation or any of our respective officers, members, employees, representatives, licensors, service providers and/or suppliers, in any way; (iii) is harmful to children in any manner; (iv) is for the benefit of any third party; (v) is for purposes of any public or commercial use or exploitation, including, but not limited to use by or for the benefit of any competitor of the KC Parties; (vi) consists of or contains any viruses, bugs, worms, Trojan horses or other harmful computer code; (vii) contains any impersonation, misrepresentation of your identity or the source or affiliation of the material or Your Content, or incorrect identification information; or (viii) consists of or contains any commercial solicitation, mass mailing, junk mail, spam, chain letter or political campaign material; (ix) or any other Content that could give rise to any civil or criminal liability under both domestic and international law. Pornography and merchandising related to pornography are prohibited under all Services, including providing links to pornographic content elsewhere.
h) Harm, or attempt to harm, minors in any way.
i) Impersonate any person, including, but not limited to, the KC Parties, their officials, a forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person.
j) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services or develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page).
k) Upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside
information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
l) Upload, post, email or otherwise transmit any Content or materials that infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party.
m) Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or other promotional content.
n) Upload, post, email or otherwise transmit any materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, including attempting (or encouraging or supporting anyone else’s attempt) to circumvent, reverse-engineer, decrypt, or otherwise alter, or interfere with, the Site or its Services, use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Site, and/or attempt to gain unauthorized access to the KC Parties’ computer systems, or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Site.
o) Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Services are able to type, or otherwise act in a manner that negatively affects other users’ abilities to engage in real time exchanges.
p) Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services, including “flooding” services or sending mass unsolicited messages.
q) Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law. You shall be responsible for determining what laws or regulations are applicable to your use of the Services.
r) “Stalk” or otherwise harass another.
s) Promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating “crush” sites.
t) Effectuate security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access including through means not intentionally made publicly available or provided through the Site and any automatic or unauthorized means of accessing, logging-in or registering on the Site, or obtaining lists of users or other information from or through the Site.
u) Harvest or collect information about other Site users without their express consent.
v) Restrict or inhibit any other visitor from using the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site.
w) Express or imply that any statements you make are endorsed by us without prior written consent.
x) Assist any third party in engaging in any activity prohibited by this Agreement.
y) Provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
z) Use an inappropriate username or screen name.
9. Monitoring the Site. The KC Parties have the right, but not the obligation, to monitor this Site. Notwithstanding the foregoing, we reserve the right, but not the obligation, to refuse to post or to remove any Content, or any information or materials from any portion of this Site, in whole or in part, that, in our sole discretion, are unacceptable, undesirable, inappropriate or in violation of this Agreement. You acknowledge that we may establish general practices and limits concerning use of this Site, including without limitation, limiting the maximum number of days that message board postings or other uploaded Content will be retained by this Site, the maximum disk space that will be allotted on the KC Parties’ servers on your behalf, the maximum length of time that an IP address will be assigned for your use, the maximum throughput of traffic from the Internet or associated service, and the maximum number of times (and the maximum duration for which) you may access this Site in a given period of time. You agree that the KC Parties have no responsibility or liability for: (a) the deletion of Content, (b) failure to store or to deliver any messages and other communications, (c) the modification or malformation of data communications over this Site, or (d) other Content maintained or transmitted by this Site. Please remember that this Site and any chat rooms, message boards, or other such forums or communities are merely provided as venues for users to upload, use, exchange and edit Content. The KC Parties are not responsible for any user’s Content that may appear on this Site; nor are the KC Parties responsible for or involved in reviewing, editing, or removing any Content on this Site. The KC Parties also do not have any control over and does not guarantee the quality, applicability or accuracy of any Content. The KC Parties do not assume any liability associated with a user’s use of the Services, the Materials, or this Site, or anything contained hereon, including, without limitation, intellectual property infringement relating to or concerning any Content. Please make sure that the Content you provide conforms to all applicable intellectual property laws.
10. Hyperlinks. You are granted a limited, nonexclusive, and revocable right to create a “hypertext” link to this Site, provided that such link is to the entry page of this Site and does not portray the KC Parties, or any of the KC Parties’ products or services, in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time for any reason whatsoever. You agree that if you include a link from any website to the Site, such link shall open in a new browser window and shall link to the full version of an HTML-formatted page of the Site. You may not link directly to any Materials, by, for example and without limitation, “in-line” linking or “deep-linking” methods, or in any manner causing the Site, or any page of the Site, to be “framed,” surrounded or obfuscated by any third party content, materials or branding, including framing techniques to enclose any Mark or other proprietary information including the images found at this Site, the content of any text or the layout/design of any page or any form contained on a page without our express written consent. We may, at any time and for any or no reason, require that any link to the Site be discontinued and removed and revoke your right to link to the Site.
The Site contains links to websites of third parties, including, without limitation, advertisements of third party products and services. Links to third party sites on this Site are provided solely as convenience to you. If you use these links, you will leave this Site. The KC Parties have not reviewed all of these third party sites and do not control, and is not responsible for, any of these sites or their availability, content, or policies, including, without limitation, privacy policies or lack thereof. The KC Parties do not endorse, warrant, approve or make any representations about third party sites or any information, software or other products or materials found there, or any results that may be obtained from using them and do not assume any liability for the foregoing. If you decide to access any of the third party sites linked to this Site, you do so entirely at your own risk. You acknowledge and agree that the KC Parties shall not be responsible or liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with the use of or reliance on any such third party sites.
You should exercise your own judgment in evaluating and using these websites. When you link to these websites, you become subject to their terms and conditions of use and privacy policies. You understand, acknowledge and agree that all access to and use of any such third party website by you shall be at your own risk.
11. Downloadable Materials. Any Materials that are made available to download from this Site are the copyrighted work of the KC Parties and/or their or suppliers or other third parties. Without limiting the foregoing, except as expressly provided herein, copying or reproduction of the Materials to any other server or location for further reproduction or redistribution is expressly prohibited.
13. User ID and Password. During the registration process, you will receive a user ID and password, which are part of Your User Information. You are fully responsible for maintaining the confidentiality of Your User Information and all activities that occur under Your User Information as well as ensuring that you exit from Your Account at the end of each session. Your user ID and password are for your use only, and you may not transfer your user ID, Your Account, or password to another party without our consent. You agree to immediately notify us by email at firstname.lastname@example.org of any unauthorized use of your ID, password or account or any other breach of security. You are also solely responsible for any and all activities that occur under Your Account or Your User Information.
14. Notices. Unless otherwise provided herein, notices given by us to you will be given by email or by conventional mail. Notices will be sent to the email address or mailing address you provide to us as part of the registration process, or to an updated address that you provide to us via notice consistent with this section. Notices given by you to us must be given by email to email@example.com or such updated address(es) as we may provide to you consistent with this notice provision. Notwithstanding anything herein to the contrary, it is your sole responsibility to update your address for notices hereunder, and notices sent to the email or conventional mailing address last provided by you to us shall be valid and binding on you regardless of whether such address has been changed, canceled, has expired, has been terminated, or otherwise becomes inoperative.
15. Interstate Nature of Using this Site and Services. When you register with the Site, you acknowledge that in using the Services to send electronic communications, you will be causing communications to be sent through computer networks, portions of which may be located in other locations in the United States and portions of which may be located abroad. As a result, and also as a result of the network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless or where you are physically located at the time of transmission. Accordingly, by agreeing to this Agreement, you acknowledge that use of the Services results in interstate data transmissions.
16. Fees. Some aspects of the Site may require you to pay a fee, the details of which are available in various areas of the Site that feature the ability to purchase products, features or Services. You agree to pay all fees and applicable taxes incurred by you or anyone using Your Account. We may revise the pricing for products, Services or features offered through the Site at any time. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or products or Services provided by, us, Your Account may be closed without warning or notice at our sole discretion. All fees shall be at the then current prices. Upon registering for use of the Services, you must choose to pay either by direct charge to a credit or a debit card, and, in doing so, you authorize us to charge your credit or debit card to pay for any charges that may apply to Your Account as they accrue on a monthly or yearly recurring basis, as applicable. You must notify us of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit us from charging Your Account. Failure to make any payment as set forth herein shall be deemed to be a material breach of this Agreement and shall be sufficient cause for the immediate termination of this Agreement by us. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys’ fees, court costs and collection agency fees. All charges shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed, other than taxes based on Company’s net income.
EXCEPT AS OTHERWISE SET FORTH HEREIN, YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE BASED PRODUCTS, SERVICES OR FEATURES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
We may, from time to time, modify, amend, or supplement our fees and fee-billing methods, and such changes shall be effective immediately upon posting in these Terms or elsewhere on the Site.
17. Modification or Cancellation of Services. We may, in our sole discretion and at any time and for any reason, modify, cancel, refuse or suspend the Services, or any part thereof, without cause and without notice. You agree that we shall not be liable to you or to any third party for any immaterial modification of the Services or any modification of the Services which, in our sole discretion, constitutes an improvement. Upon cancellation of the Services, your right to use the Services stops right away. Once the Services are cancelled or suspended, any data or Content you have stored on this Site via the Services may not be retrieved later. Our cancellation of the Services will not alter your obligation to pay all charges made to your billing account, provided, however, if we cancel the Services in their entirety without cause, or materially modify the Services in such a way that compromises the quality or quantity of the Services provided, then we may refund to you on a pro-rata basis the amount of payments that you have made corresponding to the portion of your Services remaining right before the cancellation or the material and adverse modification.
18. Security. You understand and acknowledge that no data transmission over the Internet can be guaranteed to be 100% secure and we cannot guarantee that any personal information you submit to us will be free from unauthorized third party intrusion. You understand and agree that all information you submit to us is done so at your own risk.
19. Termination. You agree that we may, for any reason and without prior notice, immediately terminate Your Account, any associated email address, and access to the Services. Cause for such termination shall include, but not be limited to: (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services. Termination of Your Account includes (a) removal of access to all offerings within the Services, (b) deletion of your password and all related information, files and content associated with or inside Your Account (or any part thereof), and (c) barring of further use of the Services. Without limiting the above, if you are a repeat copyright infringer, or a repeat or substantial violator of any activity prohibited by these Terms, we will, in appropriate circumstances, permanently terminate Your Account and remove Your Content from the Site. Further, you agree that terminations for shall be made in our sole discretion and that, except as explicitly provided herein, we shall not be liable to you or any third party for any termination of Your Account, any associated email address, or access to the Services. Upon any termination of this Agreement, you shall immediately discontinue use of the Services. The making of all payments due hereunder and Sections 1-11, 15-22, 24-36 shall survive the termination, cancellation, or discontinuation of this Agreement.
You have the right to cancel Your Account at any time. You may cancel Your Account by following the instructions on the Site.
If you voluntarily terminate Your Account or allow Your Account to lapse, you may reactivate Your Account at any time through the account interface on the Site. Accounts terminated by us for any type of abuse, including without limitation a violation of these Terms, may not be reactivated.
20. DISCLAIMER OF WARRANTIES. We administer, control and operate the Site from our offices in the State of California, the United States of America. The Site is accessible world-wide; however, some of its features or functions may not be available or appropriate for use outside of the United States and/or may not be available to all persons or in all geographic locations. We make no representation that the Site and Materials are appropriate or authorized for use in all countries, states, provinces, counties or any other jurisdictions. Your access and use of the Site may not be legal in your jurisdiction. If you choose to access, browse or use the Site, you do so on your own initiative and risk, and you are responsible for compliance with all applicable laws if, and to the full extent that, such laws and restrictions are applicable. We reserve the right to limit, in our sole discretion, the provision of any feature or function of the Site to any person or geographic area. Any offer for any Service, feature or function made on the Site is void where prohibited.
The Site provides information of a general nature only and you are responsible for determining whether it applies to your specific situation. We specifically disclaim any liability concerning any action that any person may take based on any information or guidance provided on or through the Site.
Some Materials are provided by the users of the Site. With the exception of the limited license granted in these Terms, we do not obtain or control any rights in, and do not exert editorial control over, such Materials. We do not independently verify the representations and warranties made by the users with respect to such Materials.
We do not assume responsibility for, make any representation or warranty of, or otherwise guarantee the accuracy, timeliness, correctness, completeness, reliability, currency, performance or fitness for a particular purpose of the Site or any Materials. We are not liable for any errors, omissions, or inaccurate Materials. It is your responsibility to review the information and determine its accuracy and applicability to you as an individual.
YOU AGREE THAT USE OF THE SERVICES AND THIS SITE IS AT YOUR SOLE RISK. THE SERVICES AND THIS SITE, INCLUDING BUT NOT LIMITED TO ALL SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THE KC PARTIES (INCLUDING, WITHOUT LIMITATION, THEIR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, INDEPENDENT CONSULTANTS, SUBCONTRACTORS, DISTRIBUTORS, OR ANY CLIENT OF COMPANY (COLLECTIVELY, “COMPANY THIRD PARTIES”)) ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY OF YOUR COMMUNICATIONS, DATA, CONTENT, OR PERSONALIZATION SETTINGS.
TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, THE KC PARTIES AND THIRD PARTIES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, QUIET ENJOYMENT, TITLE, CONDITION, OR THAT ARISES FROM ANY COURSE OF DEALING, COURSE OF PERFORMACE, USAGE OF TRADE, OR TRADE PRACTICE, MERCHANTABILITY OF COMPUTER PROGRAMS AND INFORMATIONAL CONTENT AND ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS. NEITHER THE KC PARTIES NOR ANY THIRD PARTIES MAKE ANY WARRANTY THAT THIS SITE, THE SOFTWARE, THE MATERIALS, THE PRODUCTS, OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR OR VIRUS FREE OR THAT ANY DEFECTS IN THE SITE, THE SOFTWARE, THE MATERIALS, THE PRODUCTS, OR THE SERVICES WILL BE CORRECTED. NOR DO THE KC PARTIES OR ANY THIRD PARTIES MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM, OR ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH, THE USE OF THE SERVICES OR THIS SITE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE AND THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU, AND NOT THE KC PARTIES, WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO A COMPUTER SYSTEM, VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT, BUSINESS OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, BROWSING IN OR USE OF, THE SITE OR YOUR DOWNLOADING OF MATERIAL, OR THE LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS CONTAINED HEREIN MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS. THE KC PARTIES DO NOT WARRANT THAT THE SITE, MATERIALS OR SERVICES, ANY SERVERS HOSTING THE SITE, OR ANY COMMUNICATION SENT BY OR ON BEHALF OF THE KC PARTIES, ARE OR WILL BE TIMELY, SECURE, UNINTERRUPTED, OR OPERATED FREE OF DELAYS IN TRANSMISSION, FAILURE IN PERFORMANCE, COMPUTER VIRUSES, DISABLING DEVICES, INACCURACIES, ERRORS, DEFECTS OR OTHER HARMFUL COMPONENTS, OR OTHERWISE MEET YOUR REQUIREMENTS, OR THAT YOU WILL HAVE SECURE, TIMELY, CONTINUOUS OR UNINTERRUPTED ACCESS TO OR USE OF THE SITE OR ANY MATERIALS, OR THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SITE OR MATERIALS WILL BE CORRECTED.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SITE IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ALL USE OF THE SITE AND THE SERVICES.
21. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY OR ANY COMPANY THIRD PARTIES BE LIABLE FOR ANY DAMAGES, LOSS OR INJURY OF ANY KIND, INCLUDING, WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ANY LOST PROFITS, LOST BUSINESS, BUSINESS OPPORTUNITIES OR REVUNUES, LOSS OF GOODWILL OR REPUTATION, COSTS OF REPLACEMENT GOODS OR SERVICES, ANY LOSS, DELETION OR CORRUPTION OF, OR DAMAGE TO, HARDWARE, SOFTWARE OR DATA, ANY INCONVENCE, OR ANY OTHER DAMAGES RESULTING FROM LOST PROFITS, LOST OR DAMAGED DATA OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THESE TERMS OR ANY OF THE ADDITIONAL TERMS, THE SALE OR PURCHASE OF ANY PRODUCTS OR SERVICES, THE USE OR RELIANCE ON THE SITE MATERIALS, THE USE, OR INABILITY TO USE, THE SERVICES, THIS SITE, ANY WEBSITES LINKED TO THIS SITE, THE MATERIALS, SOFTWARE OR OTHER INFORMATION CONTAINED IN ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACTS, STATUTES, REGULATIONS, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IF YOUR USE OF THE MATERIALS OR INFORMATION FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
WITHOUT LIMITATION OF THE FOREGOING PARAGRAPH, THE KC PARTIES SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY ARISING FROM OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT OR DELAY IN OPERATION OR TRANSMISSION, ANY COMPUTER VIRUS OR OTHER HARMFUL CODE OR COMPONENT, OR ANY LINE FAILURE.
THE INFORMATION PROVIDED IN THE SITE IS FOR COMMERCIAL, EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. THE SITE SHOULD NOT BE USED AS A FORUM OR VIEWED AS A SOURCE TO DIAGNOSE, CURE OR TREAT ANY MEDICAL OR OTHER CONDITIONS. ALL INQUIRIES REGARDING YOUR HEALTH, DIET OR OTHER MEDICAL ISSUES SHOULD BE DIRECTED TO A QUALIFIED HEALTH CARE PROFESSIONAL.
IN NO EVENT SHALL THE KC PARTIES BE LIABLE FOR, OR IN CONNECTION WITH, ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE (INCLUDING, WITHOUT LIMITATION, ANY OF YOUR CONTENT). IN NO EVENT SHALL THE KC PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED, IN THE AGGREGATE (A) THE AMOUNT, IF ANY, PAID BY YOU TO US FOR YOUR USE OF THE SITE OR FOR ANY OF YOUR ACTIVITIES ON THE SITE DURING THE THREE MONTHS IMMEDIATELY PRECEDING YOUR CLAIM, OR (B) ONE HUNDRED U.S. DOLLARS (US$100), WHICHEVER IS GREATER. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS TO DISCONTINUE THE USE OF THE SERVICES. THE LIABILITY OF ANY PARTY UNDER THIS AGREEMENT SHALL BE CUMULATIVE AND NOT PER INCIDENT.
22. Indemnification & Release. You are solely responsible and liable for: (a) any breach of your representations, warranties, covenants or obligations under these Terms and for the consequences of such breach, including, but not limited to, any resulting loss or damage incurred by the KC Parties or third parties; (b) all activities that occur under your registration to the Site, password, user name or identification, access code or account; (c) maintaining the security, confidentiality and restricted, authorized use of all user names and identifications, passwords, and access codes to the Site or any Materials that are in your knowledge, control or possession; (d) any and all actions and omissions by any of your personnel and/or other persons and entities under your control or for whose actions you may otherwise be held liable (it being understood and agreed that all such third party actions and omissions, which, if committed by you would constitute a breach of these Terms shall constitute a breach hereof as if directly committed by you).
You agree to notify the KC Parties of, and indemnify, defend, and hold harmless the KC Parties, those for whom any such parties are acting, those acting with the authority and permission of any such parties, and all others involved in creating, promoting or otherwise making available the Site and any Materials, and the directors, officers, employees, consultants, successors, assigns, agents, and other representatives of all of the foregoing, from and against, any and all claims, actions, demands, liabilities, damages, amounts paid in settlement, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement or violation of any Terms; (b) your Submissions and Your Content, including but not limited to any allegation that any Content, Submissions, or materials you submit or transmit to this Site, or to other websites, infringe or otherwise violate the copyright, trademark, trade secret, right of publicity, right of privacy, or other intellectual property or other rights of any third party, and any claims for defamation, false light, or libel; (c) your activities in connection with this Site and any Services, Your Content or its posting on, or submission to, the Site. In addition, if you have a dispute with one or more users, you agree to release the KC Parties (and their officers, directors, agents, assigns, and employees) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of, or in connection with, any such disputes. If you are a California resident, you hereby agree to waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You will cooperate as fully as reasonably required in the defense of any such claim or action; however, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. We will attempt to provide prompt notice to you of any such Claims and Liabilities and we reserve the right to take exclusive control and defense of any claim, action or demand subject to indemnification by you, in which event you agree to cooperate fully with the KC Parties in asserting any available defenses.
No revocation, expiration or termination for any reason of any or all of the rights, licenses and/or privileges granted to you under these Terms shall affect the KC Parties’ right to payment, as and when due, of any amounts payable by you to the KC Parties.
23. Force Majeure. The KC Parties shall not be liable to you or any third party for failure or delay in performing our obligations hereunder if such failure or delay is due to circumstances beyond our reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, terrorism, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Site.
24. Merchandise. All product purchases placed on or through the Site are subject to our acceptance, in our sole discretion. Without limitation, this means that we may refuse to accept or may cancel any purchase, whether or not the purchase has been confirmed, for any or no reason, in our sole discretion, and without liability to you or any third party. If your credit card has already been charged for a purchase that is subsequently cancelled and not received, we shall issue a credit to your credit card account. No warranties are made by the KC Parties with respect to any of the products, merchandise and/or Services provided, featured, endorsed, sold or distributed on or through the Site. You agree that the KC Parties are not liable or responsible to you with respect to any products, merchandise and/or services provided, featured, endorsed, sold or distributed on or through the Site, including but not limited to illegal, offensive, illicit or harmful materials or items, even if such materials or items violate these Terms. Transactions involving any products, merchandise and/or Services provided, featured, endorsed, sold or distributed on or through the Site shall be between the visitor and the third party seller, distributor or manufacturer, without our involvement. Any products, merchandise, or goods that are purchased from this Site are made according to a shipment contract whereby risk of loss and title for such products, merchandise, or goods is passed to you upon delivery by us (or any agent, subcontractor, or other third party working on our behalf) to its carrier. While we and our affiliates strive to be as accurate as possible, we do not warrant that product descriptions or other related content are accurate, complete, reliable, current, or error-free. For any products, merchandise, or goods that you purchase from this Site which are not as they were described on this Site, your complete and sole remedy is to return the item unused to us (or a designated third party) for a full refund (excluding shipping and handling fees).
25. Referral Fees That You May Receive. Your use of certain features or services available through the Site provides the possibility of generating compensation that would be payable to you by us or our business partners. The terms of such compensation are stated in the terms and conditions applicable to these features or services. We do not make any representation, warranty or guaranty as to the amount of compensation you will earn from your use of any of these features or services or whether your use of any of these features and services will generate any compensation payable to you.
26. Submission of Your Ideas, Comments and Suggestions. While you are encouraged to share ideas, comments and suggestions through your use of the Site, we wish to avoid any potential misunderstandings or disputes that may arise from the limited use that we or other users of the Site may make of any ideas, comments or suggestions that you choose to share or if our content or business activities seem similar to any such ideas or suggestions. When you share ideas, comments or suggestions through your use of the Site (including, without limitation, opinions on products or ideas or suggestions for new products, creative works, sound recordings, musical compositions, video programming, webisodes, machinima or theatrical motion pictures) (collectively “Submissions”), you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable, transferrable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, adapt, create derivative works of, publicly display, publicly and digitally perform, and license, make, have made, sell, offer for sale and import your Submissions in any and all media and means of communication, now known or hereafter developed. We agree that, if any Submission generates a sufficient level of popularity or mass appeal, as we may determine in our sole discretion, then we may enter into good faith negotiations with you of a royalty-bearing license agreement for exploitation of your Submission beyond the Site. Notwithstanding the foregoing, nothing in these Terms shall impose any obligation or requirement on us to proceed with or conclude any agreement or transaction with you concerning any such Submission or to treat any Submission as confidential. The KC Parties will not be liable for any copying, reproduction, modification, adaptation, translation, collection, compilation, recompilation, preparation of summaries, abstracts, derivative works or materials, or any publication, distribution, display, disclosure, sale, licensing, or other use or commercial exploitation, of any ideas or other Submission, or any tangible or intangible subject matter similar to, or using, incorporating, derived from or based on, any Submission, in whole or in part. IF YOU DO NOT WISH TO GRANT THE RIGHTS GRANTED IN THIS PARAGRAPH, PLEASE DO NO SHARE, SUBMIT OR POST ANY SUBMISSION ON OR THROUGH THE SITE.
27. No Right of Survivorship and Non-Transferability. You agree that Your Account is non-transferable and any rights to your user ID, or any Content or other materials within your account, terminate upon your death.
28. Notice and Procedure for Making Claims of Copyright or Intellectual Property Infringement. We respect the intellectual property of others, and we ask our Users to do the same. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide us with the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including the URL where such material is posted;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
f. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Our designated copyright agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Erik DeCoster, 10301 Jefferson Boulevard, Culver City, CA 90232-3511 or by electronic mail at Erik.DeCoster@nxtm.tv. This contact information is only for reporting alleged copyright and other intellectual property infringement claims. Contact information for other matters is provided elsewhere in these Terms of Service or on the Site.
Upon receiving a proper notification of copyright infringement as described above, we will remove or disable access to the allegedly-infringing material and promptly notify the alleged infringer of your claim. We also will advise the alleged infringer of the counter-notification procedure, as described in, and required by, The Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512.
If we receive a valid counter-notification, we will restore the removed or disabled material after ten (10), but no later than fourteen (14), business days from the date on which we receive the counter-notification, unless our designated copyright agent first receives notice from you, as the party filing the original notification of copyright infringement, informing us that you have filed a court action to restrain infringement of the material in question.
29. Modification, Suspension and Termination. We reserve the right to modify, suspend or terminate, in our sole discretion, at any time, temporarily or permanently, for any or no reason and without notice to you, and without any liability to you, any portion of the Site.
We may change products or Services mentioned on the Site at any time with or without notice.
30. Assignment. You agree that we may assign any of our rights, and/or transfer, sub-contract or delegate any of our obligations, under these Terms. Your agreement to these Terms is personal to you and you may not transfer or assign it to any third party.
31. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of this Site, the Services, or this Agreement (or any other agreement incorporated herein), must be filed within one (1) year after such claim or cause of action arose or forever be barred.
32. Governing Law. You agree that the laws of the United States of America and the laws of the State of California, without regard to the principles of conflicts of laws, will govern your use of the Site, these Terms and all matters relating to your access to, and/or use of, the Site, including all disputes between you and us and/or the KC Parties. You irrevocably and unconditionally: (i) consent to submit to the exclusive jurisdiction of the state and federal courts of Los Angeles County, California (the “California Courts”) for any litigation or controversy arising out of or relating to this Agreement, (ii) agree not to commence any litigation arising out of or relating to this Agreement except in the California Courts and (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum. Notwithstanding the above, the KC Parties shall have the right to apply for an injunction or other emergency relief in any jurisdiction.
You understand and agree that money damages would not be an adequate remedy for any breach by you of these Terms and that we shall be entitled to equitable relief, including preliminary and permanent injunctions and specific performance, as well as recovery of court costs, expenses and reasonable attorneys’ fees, if you breach or threaten to breach any provision hereof or thereof. Such remedies shall not be exclusive, shall be in addition to all other remedies available at law, equity or otherwise for your breach of these Terms, and shall be available to us without requirement that it post any bond or prove any actual damages.
33. Third Party Beneficiaries. Each of the KC Parties service providers and licensors shall be third party beneficiaries to these Terms and the Additional Terms, and shall be entitled to directly rely on and enforce any provisions of these Terms or Additional Terms which confer a benefit on or rights in favor of the KC Parties. No other person or entity shall be a third party beneficiary to these Terms or the Additional Terms.
34. Survival of Terms. All provisions of these Terms and of the Additional Terms (as defined below) that consist of or relate to notices, ownership of intellectual or other property, confidentiality obligations, representations, warranties, limitations of liability, disclaimers, indemnification, dispute resolution, governing law, venue or jurisdiction, or any prohibitions or restrictions respecting any access to, use of, or other activities concerning the Site or any Materials, shall survive the revocation, expiration or termination, in whole or in part, of these Terms or the Additional Terms, or any license hereunder or thereunder, however and whenever occurring.
35. General. If any provision(s) of this Agreement is(are) held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Any failure to exercise or enforce any right, privilege, remedy or provision of this Agreement shall not constitute a waiver of that, or any other, right, privilege, remedy or provision unless acknowledged and agreed to in writing. By agreeing to these Terms, you agree to waive any right you may have to a jury trial and/or to take part in any class action lawsuits. The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance. We may assign this agreement in whole or in part. This Agreement may not be assigned in any manner by you without our express, prior written permission.
These Terms constitute the entire agreement between you and us and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us, with respect to your use of the Site and all matters relating to your access to, and/or use of, the Site. A printed version of these Terms and of any notice given in electronic form shall be admissible in any and all judicial or administrative proceedings based upon or relating to these Terms to the same extent as other business documents and records originally generated and maintained in printed form.
If any part of these Terms is determined to be invalid or unenforceable under applicable law including, without limitation, the warranty disclaimers and liability limitations stated above, then the invalid or unenforceable provision(s) will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms shall continue in full effect.
Any rights not expressly granted in these Terms are reserved to the KC Parties.