Please read this Agreement carefully to ensure that you understand each provision. This Agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
1. Use of Our Website
The Website provides a place for you to learn information about Kinetica and its products. Kinetica’s products and services are governed by separate commercial terms. If you would like to purchase any products or services from Kinetica, please contact us via email at firstname.lastname@example.org.
- EligibilityThis is a contract between you and Kinetica. You must read and agree to these terms before using the Website. If you do not agree, you may not use the Website. You may use the Website only if you can form a binding contract with Kinetica, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Website by anyone under 13 is strictly prohibited and in violation of this Agreement. The Website is not available to any Users previously removed from the Website by Kinetica.
- WebsiteSubject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Website for your personal, noncommercial use only and as permitted by the features of the Website. Kinetica reserves all rights not expressly granted herein in the Website and the Kinetica Content (as defined below). Kinetica may terminate this license at any time for any reason or no reason.
- Website RulesYou agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Website in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Website in a manner that sends more request messages to Kinetica servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Kinetica grants the operators of public search engines revocable permission to use spiders to copy publically available materials from https://www.kinetica.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Website; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Website; (vii) collecting or harvesting any personally identifiable information from the Website; (viii) using the Website for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Website; (xi) accessing any content on the Website through any technology or means other than those provided or authorized by the Website; or (xii) bypassing the measures we may use to prevent or restrict access to the Website, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Website or the content therein.
Accessing any audiovisual content that may be available on the Website for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Website. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Website to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
We may, without prior notice, change the Website; stop providing the Website or features of the Website, to you or to Users generally; or create usage limits for the Website. We may permanently or temporarily terminate or suspend your access to the Website without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other Website Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Kinetica shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. Our Proprietary Rights
The Website and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “Kinetica Content”), and all intellectual property rights related thereto, are the exclusive property of Kinetica and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Kinetica Content. Use of the Kinetica Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas, whether about the Website or anything else (“Feedback”). By submitting Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Kinetica under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance or other receipt of your submission, Kinetica does not waive any rights to use similar or related ideas previously known to Kinetica, or developed by its employees, or obtained from sources other than you.
3. No Professional Advice
If the Website provides professional information (for example, medical, legal, or financial), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained on the Website. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
Kinetica cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
6. Third-Party Links and Information
You agree to defend, indemnify and hold harmless Kinetica and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Website, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; (e) any content that is submitted by you or someone on your behalf, including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of the Website with your unique username, password or other appropriate security code.
8. No Warranty
The Website is provided on an “as is” and “as available” basis. Use of the Website is at your own risk. To the maximum extent permitted by applicable law, the Website is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Kinetica or through the Website will create any warranty not expressly stated herein. Without limiting the foregoing, Kinetica, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Website will meet your requirements; that the Website will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Website is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Website is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Website.
Kinetica does not warrant, endorse, guarantee, or assume responsibility for any product or Website advertised or offered by a third party through the Website or any hyperlinked Website or Website, and Kinetica will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
9. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Kinetica, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, this Website. Under no circumstances will Kinetica be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Website or the information contained therein.
To the maximum extent permitted by applicable law, Kinetica assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content; (b) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our Website; (c) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (d) any interruption or cessation of transmission to or from the Website; (e) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Website by any third party; (f) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Website; and/or (g) user content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Kinetica, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to Kinetica hereunder or $50.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Kinetica has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
The Website is controlled and operated from facilities in the United States. Kinetica makes no representations that the Website is appropriate or available for use in other locations. Those who access or use the Website from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Website if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Website are solely directed to individuals, companies, or other entities located in the United States.
10. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
- Governing Law.You agree that: (a) the Website shall be deemed solely based in California; and (b) the Website shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
- Arbitration.Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Kinetica. For any dispute with Kinetica, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Kinetica has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and Kinetica agree otherwise. If you are using the Website for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Website for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Kinetica from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
- Class Action/Jury Trial Waiver.With respect to all persons and entities, regardless of whether they have obtained or used the Website for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this Agreement, you and Kinetica are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
- Assignment.This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Kinetica without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- Entire Agreement/Severability.This Agreement, together with any amendments and any additional agreements you may enter into with Kinetica in connection with the Website, shall constitute the entire agreement between you and Kinetica concerning the Website. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
- No Waiver.No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Kinetica’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
- Contact.Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.
- California Residents.The provider of this electronic service is Kinetica DB, Inc., 1 Sansome St., Suite 3440, San Francisco, CA 94104, phone +1-415-604-3444. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Last Updated: January 2017