Effective December 13, 2005
This document (the "Agreement") is a legal contract between the podcaster ("you") and Kiptronic, Inc. ("Kiptronic") that governs your use of Kiptronic's advertising administration services (the "Services").
AGE REQUIREMENT
You must be at least 13 years of age to agree to and enter into this Agreement on your own behalf and to register for use of the Services. By checking the box indicating your acceptance of this Agreement, and/or by accessing the Service, you represent that (i) you have read, understood and agree to be bound by this Agreement and (ii) you are at least 13 years old, entering into this Agreement for yourself. You are fully responsible for your use of the Services, including all financial charges and legal liability that you may incur. If you do not agree to (or cannot comply with) any of these terms and conditions, do not check the acceptance box and do not attempt to access the Service.
DESCRIPTION OF SERVICES
By using the Services, you will be able to set the terms under which an advertiser may have advertisements inserted in your podcast. Kiptronic will administer the terms reached between you and an advertiser by (i) enabling the advertisement(s) to be inserted in your podcast(s); (ii) tracking the frequency of the advertisements placed in your podcast(s); (iii) billing the advertiser consistent with your agreement with the advertiser; (iv) collecting the advertising fee to be paid by the advertiser to you; and (v) upon receipt of the advertising fee from the advertiser, remitting the agreed upon payment to you.
By accepting this agreement, you will be indicating your willingness to engage in negotiations with potential advertisers for your podcasts and, if those negotiations are successful, your consent to the insertion of advertisements in your podcasts under the terms of that agreement.
REGISTRATION
To use the Services, you must register and provide certain information, including a member (user) name, a password and a valid email address ("Registration Data"). You agree to provide accurate Registration Data and to update your Registration Data as necessary to keep it accurate. Kiptronic will use your Registration Data in accordance with its privacy policy, which you can review at http://kiptronic.com/web/guest/privacy. For additional information regarding Kiptronic's use of information collected in connection with the Services, please also refer to Kiptronic's Privacy Policy, which is expressly made part of this Agreement.
You agree that you will not allow others to use your member name, password and/or account and you are solely responsible for maintaining the confidentiality and security of your account. You agree to notify Kiptronic immediately of any unauthorized use of your password and/or account. Kiptronic shall not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account and you agree to indemnify and hold harmless Kiptronic, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.
YOUR RESPONSIBILITY FOR CONTENT AND CONDUCT
As a podcaster, you will be fully responsible for the content of your podcasts. In addition, you acknowledge and agree that Kiptronic shall have no responsibility or liability for the content of any of your podcasts or of any advertisements that are inserted in them. You represent and warrant that the content of your podcasts will not violate any applicable law, including local, state, and federal laws regarding defamation, obscenity, and violation of the intellectual property rights of Kiptronic or any other person.
Kiptronic reserves the right, but has no obligation, to monitor the content of your podcasts and of advertisements and to take any other action to restrict access to or the availability of any material that we or a third party may consider to be obscene, lewd, lascivious, excessively violent, harassing or otherwise objectionable.
You will not intentionally cause damage to Kiptronic's website or any Kiptronic service or system by any means, including effecting a denial of service attack.
PAYMENT
As noted above, Kiptronic will collect the advertising fees owed to you by the advertisers and, after receipt of the fees, will transmit them to you. In the event that an advertiser fails to pay Kiptronic, Kiptronic will have no obligation to pay you.
In addition to the advertising fees that you will receive for the advertisements on your podcast, Kiptronic will charge each of the advertisers an advertising administration fee for their use of Kiptronic's Services. In the event that Kiptronic receives a partial payment from an advertiser, Kiptronic will allocate on a pro-rata basis payment to you and payment to Kiptronic of such advertising administration fee.
SERVICE MAINTENANCE
Kiptronic may from time to time suspend temporarily the Services and access to its website in order to perform regularly scheduled maintenance on its systems. Kiptronic will provide you with at least 48 hours' advance notice of any such scheduled maintenance. In addition, if required, Kiptronic reserves the right to suspend its Services in order to perform maintenance on an emergency basis, without providing advance notice.
DMCA COPYRIGHT POLICY AND COPYRIGHT AGENT
Kiptronic respects the intellectual property rights of others and expects users of its Services to do the same. Kiptronic may remove content that in its sole discretion appears to infringe the intellectual property rights of others. In addition, Kiptronic, in its sole and absolute discretion, may terminate the accounts of users who infringe the intellectual property rights of others. If you believe that a user of the Kiptronic website or the Services has infringed your intellectual property rights, please notify Kiptronic's Copyright Agent and provide the following information:
(i) A physical or electronic signature of the person authorized to act on behalf of the owner of the intellectual property right:
(ii) An identification of the intellectual property claimed to have been infringed;
(iii) A detailed description of the material that you claim is infringing, so that we may locate it, including the URL where the infringing material appears;
(iv) Your address, telephone number, and email address;
(v) A statement by you that you have a good faith belief that the allegedly infringing use is not authorized by the intellectual property rights owner, its agent or the law.
(vi) A statement, made under penalty of perjury, by you that the above information is accurate and that you are authorized to act on behalf of the owner of the intellectual property rights involved.
Kiptronic's Copyright Agent is and can be reached at:
Jonathan Cobb
Kiptronic, Inc.
605 Market Street, Ste 1400
San Francisco, CA 94105
Phone: 415-658-6855
Fax: 415-947-0637
Email: agent@kiptronic.com
This process only relates to reporting a claim of copyright infringement. Messages related to other matters will not receive a response through this process.
COPYRIGHT, TRADEMARK AND PATENT RIGHTS
All materials on the Services and on Kiptronic's website, including without limitation its logo, design, text, graphics, other files and the selection, arrangement and organization thereof are either owned by Kiptronic or are the property of its suppliers or licensors. You may not use such materials without permission. In addition, Kiptronic's website and its logo are trademarks owned by Kiptronic. All page headers, custom graphics, button icons, and scripts are trademarks or trade dress of Kiptronic. Any use by you of such trademarks or trade dress in using the Services is for the sole benefit of Kiptronic and all goodwill generated by such use will inure to Kiptronic. The Services (and portions of them) may also be protected under patent law and may be the subject of issued patents and/or pending patent applications.
Ownership and Use. Kiptronic will retain ownership of its intellectual property rights and you may not obtain any rights therein by virtue of this Agreement or otherwise, except as expressly set forth in this Agreement. You will have no right to use, copy, display, perform create derivative works from, distribute, have distributed, transmit or sublicense from materials or content available on Kiptronic's website or through the Services, except as expressly set forth in this Agreement. Notwithstanding the foregoing, you may use the content and materials on Kiptronic's website and available through our Services in the normal course of your use of the website and Services. You may not use any third-party intellectual property without the express written permission of the third party, except as permitted by law.
No Reverse Engineering. By accepting these usage terms and by using the Kiptronic Services, you expressly agree not to disassemble, reverse engineer, decompile, or otherwise access the methods and tools used to create the Kiptronic Services, or to assist others in doing so. Kiptronic reserves the right to enforce all its intellectual property rights, including trade secrets, and to seek all remedies at law for the misappropriation of confidential information and breach of this Agreement.
If Kiptronic receives a notice alleging that you have engaged in behavior that infringes Kiptronic's or other's intellectual property rights or reasonably suspects the same, Kiptronic reserves the right, depending on the circumstances, to suspend or terminate your account without notice to you. If Kiptronic suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you.
PUBLICITY
Kiptronic shall be entitled to include your name in any published list of podcasters that have used Kiptronic's Services.
LINKS TO THIRD-PARTY SITES
The Services may present links to third-party websites not owned or operated by Kiptronic. Kiptronic is not responsible for the availability of these sites or their contents. You agree that Kiptronic is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site.
MODIFICATIONS TO SERVICES
Kiptronic may from time to time modify these terms and will present for your acceptance an amended Agreement if these terms have changed when you use Kiptronic's Services in the future. Until such time, all your transactions using the Services will be subject to the terms in this Agreement. If you do not agree to (or cannot comply with) the Agreement as amended, your only remedy will be not to accept the amended Agreement and to stop using the Services.
Kiptronic reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice to you, without any liability to you or to any third party.
REMEDIES
You agree that any unauthorized use of the Services may result in irreparable injury to Kiptronic and/or its affiliates or licensors for which money damages would be inadequate, and in such event Kiptronic, its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to seek immediate injunctive relief against you. Nothing contained in this Agreement shall be construed to limit remedies available pursuant to statutory or other claims that Kiptronic, its affiliates and/or licensors may have under separate legal authority.
INDEMNITY
You agree to indemnify and hold harmless Kiptronic and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, losses, demands, causes of action and judgments (including attorneys' fees and court costs) arising from or concerning your breach of this Agreement and your use of the Services and to reimburse them on demand for any losses, costs or expenses they incur as a result thereof.
TERMINATION
Kiptronic reserves the right in its sole discretion and depending on the circumstances to terminate this Agreement or suspend your account at any time without notice to you in the event that you breach (or Kiptronic reasonably suspects that you have breached) any provision of this Agreement. If Kiptronic terminates this Agreement, or suspends your account for any of the reasons set forth in this paragraph, it shall have no liability or responsibility to you, whether in damages, refunds or equitable relief.
YOU UNDERSTAND AND AGREE THAT CANCELLATION OF YOUR ACCOUNT AND SERVICE MEMBERSHIP IS YOUR SOLE RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH KIPTRONIC.
FORCE MAJEURE
Kiptronic will not be responsible for any failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation acts or omissions of government authority, acts of God, earthquakes, fires, floods, electrical or communication line failure, denial of service attack, Government act, or equipment failure.
DISCLAIMERS
You understand and agree that your use of the Services is at your own sole risk. THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY KIPTRONIC OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "KIPTRONIC ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE KIPTRONIC ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT. THE KIPTRONIC ENTITIES DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY OR OTHERWISE. YOU WILL NOT HOLD ANY KIPTRONIC ENTITY RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOUR ACCESSING (INCLUDING ANY SOFTWARE OR SYSTEMS YOU USE TO ACCESS) THE SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ANY COMPUTER, SOFTWARE OR SYSTEMS OR PORTABLE DEVICES YOU USE TO ACCESS THE SAME . NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO ANY OF THE KIPTRONIC ENTITIES OR SERVICES.
UNDER NO CIRCUMSTANCES SHALL ANY KIPTRONIC ENTITY BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICES.
UNDER NO CIRCUMSTANCES SHALL ANY KIPTRONIC ENTITY BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF THE KIPTRONIC ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, THE KIPTRONIC ENTITIES SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED US$10, AS PERMITTED BY APPLICABLE LAW.
LAW AND LEGAL NOTICES
This Agreement and any other terms or documents referred to herein represent your entire agreement with Kiptronic with respect to your use of the Services. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The laws of the State of California, excluding its conflicts of law rules, govern this Agreement and your use of the Services. You expressly agree that the courts in the State of California, San Francisco County, have exclusive jurisdiction over any claim or dispute with Kiptronic or relating in any way to your account or your use of the Services. You further agree and expressly consent to personal jurisdiction over you in the federal and state courts in said county in connection with any such dispute including any claim involving Kiptronic or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.
This document (the "Agreement") is a legal contract between the podcaster ("you") and Kiptronic, Inc. ("Kiptronic") that governs your use of Kiptronic's advertising administration services (the "Services").
AGE REQUIREMENT
You must be at least 13 years of age to agree to and enter into this Agreement on your own behalf and to register for use of the Services. By checking the box indicating your acceptance of this Agreement, and/or by accessing the Service, you represent that (i) you have read, understood and agree to be bound by this Agreement and (ii) you are at least 13 years old, entering into this Agreement for yourself. You are fully responsible for your use of the Services, including all financial charges and legal liability that you may incur. If you do not agree to (or cannot comply with) any of these terms and conditions, do not check the acceptance box and do not attempt to access the Service.
DESCRIPTION OF SERVICES
By using the Services, you will be able to set the terms under which an advertiser may have advertisements inserted in your podcast. Kiptronic will administer the terms reached between you and an advertiser by (i) enabling the advertisement(s) to be inserted in your podcast(s); (ii) tracking the frequency of the advertisements placed in your podcast(s); (iii) billing the advertiser consistent with your agreement with the advertiser; (iv) collecting the advertising fee to be paid by the advertiser to you; and (v) upon receipt of the advertising fee from the advertiser, remitting the agreed upon payment to you.
By accepting this agreement, you will be indicating your willingness to engage in negotiations with potential advertisers for your podcasts and, if those negotiations are successful, your consent to the insertion of advertisements in your podcasts under the terms of that agreement.
REGISTRATION
To use the Services, you must register and provide certain information, including a member (user) name, a password and a valid email address ("Registration Data"). You agree to provide accurate Registration Data and to update your Registration Data as necessary to keep it accurate. Kiptronic will use your Registration Data in accordance with its privacy policy, which you can review at http://kiptronic.com/web/guest/privacy. For additional information regarding Kiptronic's use of information collected in connection with the Services, please also refer to Kiptronic's Privacy Policy, which is expressly made part of this Agreement.
You agree that you will not allow others to use your member name, password and/or account and you are solely responsible for maintaining the confidentiality and security of your account. You agree to notify Kiptronic immediately of any unauthorized use of your password and/or account. Kiptronic shall not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account and you agree to indemnify and hold harmless Kiptronic, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.
YOUR RESPONSIBILITY FOR CONTENT AND CONDUCT
As a podcaster, you will be fully responsible for the content of your podcasts. In addition, you acknowledge and agree that Kiptronic shall have no responsibility or liability for the content of any of your podcasts or of any advertisements that are inserted in them. You represent and warrant that the content of your podcasts will not violate any applicable law, including local, state, and federal laws regarding defamation, obscenity, and violation of the intellectual property rights of Kiptronic or any other person.
Kiptronic reserves the right, but has no obligation, to monitor the content of your podcasts and of advertisements and to take any other action to restrict access to or the availability of any material that we or a third party may consider to be obscene, lewd, lascivious, excessively violent, harassing or otherwise objectionable.
You will not intentionally cause damage to Kiptronic's website or any Kiptronic service or system by any means, including effecting a denial of service attack.
PAYMENT
As noted above, Kiptronic will collect the advertising fees owed to you by the advertisers and, after receipt of the fees, will transmit them to you. In the event that an advertiser fails to pay Kiptronic, Kiptronic will have no obligation to pay you.
In addition to the advertising fees that you will receive for the advertisements on your podcast, Kiptronic will charge each of the advertisers an advertising administration fee for their use of Kiptronic's Services. In the event that Kiptronic receives a partial payment from an advertiser, Kiptronic will allocate on a pro-rata basis payment to you and payment to Kiptronic of such advertising administration fee.
SERVICE MAINTENANCE
Kiptronic may from time to time suspend temporarily the Services and access to its website in order to perform regularly scheduled maintenance on its systems. Kiptronic will provide you with at least 48 hours' advance notice of any such scheduled maintenance. In addition, if required, Kiptronic reserves the right to suspend its Services in order to perform maintenance on an emergency basis, without providing advance notice.
DMCA COPYRIGHT POLICY AND COPYRIGHT AGENT
Kiptronic respects the intellectual property rights of others and expects users of its Services to do the same. Kiptronic may remove content that in its sole discretion appears to infringe the intellectual property rights of others. In addition, Kiptronic, in its sole and absolute discretion, may terminate the accounts of users who infringe the intellectual property rights of others. If you believe that a user of the Kiptronic website or the Services has infringed your intellectual property rights, please notify Kiptronic's Copyright Agent and provide the following information:
(i) A physical or electronic signature of the person authorized to act on behalf of the owner of the intellectual property right:
(ii) An identification of the intellectual property claimed to have been infringed;
(iii) A detailed description of the material that you claim is infringing, so that we may locate it, including the URL where the infringing material appears;
(iv) Your address, telephone number, and email address;
(v) A statement by you that you have a good faith belief that the allegedly infringing use is not authorized by the intellectual property rights owner, its agent or the law.
(vi) A statement, made under penalty of perjury, by you that the above information is accurate and that you are authorized to act on behalf of the owner of the intellectual property rights involved.
Kiptronic's Copyright Agent is and can be reached at:
Jonathan Cobb
Kiptronic, Inc.
605 Market Street, Ste 1400
San Francisco, CA 94105
Phone: 415-658-6855
Fax: 415-947-0637
Email: agent@kiptronic.com
This process only relates to reporting a claim of copyright infringement. Messages related to other matters will not receive a response through this process.
COPYRIGHT, TRADEMARK AND PATENT RIGHTS
All materials on the Services and on Kiptronic's website, including without limitation its logo, design, text, graphics, other files and the selection, arrangement and organization thereof are either owned by Kiptronic or are the property of its suppliers or licensors. You may not use such materials without permission. In addition, Kiptronic's website and its logo are trademarks owned by Kiptronic. All page headers, custom graphics, button icons, and scripts are trademarks or trade dress of Kiptronic. Any use by you of such trademarks or trade dress in using the Services is for the sole benefit of Kiptronic and all goodwill generated by such use will inure to Kiptronic. The Services (and portions of them) may also be protected under patent law and may be the subject of issued patents and/or pending patent applications.
Ownership and Use. Kiptronic will retain ownership of its intellectual property rights and you may not obtain any rights therein by virtue of this Agreement or otherwise, except as expressly set forth in this Agreement. You will have no right to use, copy, display, perform create derivative works from, distribute, have distributed, transmit or sublicense from materials or content available on Kiptronic's website or through the Services, except as expressly set forth in this Agreement. Notwithstanding the foregoing, you may use the content and materials on Kiptronic's website and available through our Services in the normal course of your use of the website and Services. You may not use any third-party intellectual property without the express written permission of the third party, except as permitted by law.
No Reverse Engineering. By accepting these usage terms and by using the Kiptronic Services, you expressly agree not to disassemble, reverse engineer, decompile, or otherwise access the methods and tools used to create the Kiptronic Services, or to assist others in doing so. Kiptronic reserves the right to enforce all its intellectual property rights, including trade secrets, and to seek all remedies at law for the misappropriation of confidential information and breach of this Agreement.
If Kiptronic receives a notice alleging that you have engaged in behavior that infringes Kiptronic's or other's intellectual property rights or reasonably suspects the same, Kiptronic reserves the right, depending on the circumstances, to suspend or terminate your account without notice to you. If Kiptronic suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you.
PUBLICITY
Kiptronic shall be entitled to include your name in any published list of podcasters that have used Kiptronic's Services.
LINKS TO THIRD-PARTY SITES
The Services may present links to third-party websites not owned or operated by Kiptronic. Kiptronic is not responsible for the availability of these sites or their contents. You agree that Kiptronic is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site.
MODIFICATIONS TO SERVICES
Kiptronic may from time to time modify these terms and will present for your acceptance an amended Agreement if these terms have changed when you use Kiptronic's Services in the future. Until such time, all your transactions using the Services will be subject to the terms in this Agreement. If you do not agree to (or cannot comply with) the Agreement as amended, your only remedy will be not to accept the amended Agreement and to stop using the Services.
Kiptronic reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice to you, without any liability to you or to any third party.
REMEDIES
You agree that any unauthorized use of the Services may result in irreparable injury to Kiptronic and/or its affiliates or licensors for which money damages would be inadequate, and in such event Kiptronic, its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to seek immediate injunctive relief against you. Nothing contained in this Agreement shall be construed to limit remedies available pursuant to statutory or other claims that Kiptronic, its affiliates and/or licensors may have under separate legal authority.
INDEMNITY
You agree to indemnify and hold harmless Kiptronic and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, losses, demands, causes of action and judgments (including attorneys' fees and court costs) arising from or concerning your breach of this Agreement and your use of the Services and to reimburse them on demand for any losses, costs or expenses they incur as a result thereof.
TERMINATION
Kiptronic reserves the right in its sole discretion and depending on the circumstances to terminate this Agreement or suspend your account at any time without notice to you in the event that you breach (or Kiptronic reasonably suspects that you have breached) any provision of this Agreement. If Kiptronic terminates this Agreement, or suspends your account for any of the reasons set forth in this paragraph, it shall have no liability or responsibility to you, whether in damages, refunds or equitable relief.
YOU UNDERSTAND AND AGREE THAT CANCELLATION OF YOUR ACCOUNT AND SERVICE MEMBERSHIP IS YOUR SOLE RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH KIPTRONIC.
FORCE MAJEURE
Kiptronic will not be responsible for any failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation acts or omissions of government authority, acts of God, earthquakes, fires, floods, electrical or communication line failure, denial of service attack, Government act, or equipment failure.
DISCLAIMERS
You understand and agree that your use of the Services is at your own sole risk. THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY KIPTRONIC OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "KIPTRONIC ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE KIPTRONIC ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT. THE KIPTRONIC ENTITIES DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY OR OTHERWISE. YOU WILL NOT HOLD ANY KIPTRONIC ENTITY RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOUR ACCESSING (INCLUDING ANY SOFTWARE OR SYSTEMS YOU USE TO ACCESS) THE SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ANY COMPUTER, SOFTWARE OR SYSTEMS OR PORTABLE DEVICES YOU USE TO ACCESS THE SAME . NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO ANY OF THE KIPTRONIC ENTITIES OR SERVICES.
UNDER NO CIRCUMSTANCES SHALL ANY KIPTRONIC ENTITY BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICES.
UNDER NO CIRCUMSTANCES SHALL ANY KIPTRONIC ENTITY BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF THE KIPTRONIC ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, THE KIPTRONIC ENTITIES SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED US$10, AS PERMITTED BY APPLICABLE LAW.
LAW AND LEGAL NOTICES
This Agreement and any other terms or documents referred to herein represent your entire agreement with Kiptronic with respect to your use of the Services. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The laws of the State of California, excluding its conflicts of law rules, govern this Agreement and your use of the Services. You expressly agree that the courts in the State of California, San Francisco County, have exclusive jurisdiction over any claim or dispute with Kiptronic or relating in any way to your account or your use of the Services. You further agree and expressly consent to personal jurisdiction over you in the federal and state courts in said county in connection with any such dispute including any claim involving Kiptronic or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.
