Terms & Conditions
KINETICAST, INC. SERVICE SUBSCRIPTION AND SOFTWARE AGREEMENT
IMPORTANT: THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE INDIVIDUAL OR ENTITY, USING THE SERVICE (DEFINED BELOW)AND KINETICAST , INC. READ IT CAREFULLY BEFORE USING THE SERVICE. THIS AGREEMENT CONTAINS A LIMITED LICENSE TO USE THE SERVICE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY USING THE SERVICE YOU ARE AGREEING TO BE BOUND BY THE TERMS HEREOF. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU ARE PROHIBITED FROM USING THE SERVICE.
(a) "Authorized Users" The number of users who are authorized to access and use the Service.
(b) "KinetiCast" means KinetiCast, Inc., a New York corporation having an address at 270 Mansion Street Coxsackie, NY 12051.
(c) "KinetiCast Application Server" means the servers and computer equipment utilized by KinetiCast to run the Software and provide the Service.
(d) "Service" consists of the service provided by KinetiCast including the Software, equipment, support, content, supplied by KinetiCast and the corresponding documentation, associated media, printed materials, online or electronic documentation, and all updates or upgrades of the foregoing.
(e) "Software" means any software accessed by or through the Service owned or licensed by KinetiCast
(f) "Licensee" or "You" means you and the Authorized Users accessing the Service.
(g) "Licensee Data" means information (i) entered as input by Licensee or (ii) produced as output by the Software based on a specific query or execution initiated by Licensee.
2. License Grants
(a) Subject to the terms and conditions hereof, KinetiCast grants to You a non-exclusive, personal, non-transferable license to (i) access and execute the Software, and (ii) transmit Licensee Data using the Software. You may use the Software only for your communication use. Licensee shall not permit the Software or the Service to be used by or for the benefit of anyone other than Authorized Users. Licensee shall not have the right to re-license or sell rights to access and/or use the Service or to transfer or assign rights to access or use the Software, except as expressly provided herein.
3. License Restrictions; Restrictions on Access
(a) Licensee may not (i): alter, merge, modify, adapt or translate any Software, or decompile, reverse engineer, disassemble, or otherwise reduce to a human-perceivable form; (ii) re-sell, rent, lease, or sublicense the Software; (iii) modify the Software or create derivative works based upon the Software; (iv) export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder; (v) use the Software to transmit pornographic images or (vi) use the Software to transmit any images or data which are prohibited by law.
(b) Licensee shall not: (i) transmit or share identification and/or password codes to persons other than Authorized Users for whom such codes were generated; (ii) permit Authorized Users to share identification and/or password codes with others; or (iii) permit the identification and/or password codes to be cached in proxy servers and accessed by individuals who are not Authorized Users.
KinetiCast retains all right, title and interest, including all copyright and intellectual property rights, in and to, the Service and the Software and all copies thereof. All rights not specifically granted by this Agreement, including Federal and International Copyrights, are reserved by KinetiCast.
5. Warranty Disclaimers
(a) KINETICAST DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. LICENSEE ASSUMES FULL RESPONSIBILITY AND RISK FOR THE USE OF THE SERVICE SOFTWARE AND INTERNET. THE SERVICE AND THE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. KINETICAST DOES NOT WARRANT THAT THE SERVICE OR THE INTERNET WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE, ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE VIA THE INTERNET IS FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU (OR YOUR COMPANY) UNLESS EXPRESSLY GRANTED HEREIN.
(b) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE AND/OR THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE OF THE SERVICE.
(c) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KINETICAST, ITS LICENSORS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(d) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU (OR YOUR COMPANY) SPECIFIC LEGAL RIGHTS AND YOU (OR YOUR COMPANY) MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
(e) KINETICAST SHALL HAVE NO RESPONSIBILITY IF THE SOFTWARE OR THE SERVICE HAS BEEN ALTERED IN ANY WAY, OR FOR ANY FAILURE THAT ARISES OUT OF THE USE OF SERVICE.
6. Limitation of Liability
(a) KINETICAST SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICE OR THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF KINETICAST OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN THE EVENT APPLICABLE LAW DOES NOT PERMIT OR LIMITS THE EXTENT OF THE LIMITATIONS OF THIS SECTION 6(a), THE LIMITATIONS OF THIS SECTION 6(a) SHALL BE ENFORCED OT THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(b) KINETICAST COLLECTIVE LIABILITY TO THE LICENSEE FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO $1. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU (OR YOUR COMPANY) AND YOU (OR YOUR COMPANY) MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
(c) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS Agreement.
The Licensee agrees that it will ensure that the Software and Services are used in compliance with all applicable laws. By way of specificity but not limitation, such use shall comply in all respects with the the Communications Decency Act (47 U.S.C. § 230) ("CDA") and the CAN-SPAM Act of 2003, and all other applicable governmental laws, rules and regulations. In compliance therewith, the Software and the Service may not be used in any manner that is illegal, obscene, lewd, lascivious, filthy, excessively violent, harassing, otherwise objectionable, or inconsistent with the goals of the CDA, and may not be used to false or misleading advertising messages that violate the CAN-SPAM Act of 2003.
8. Term and Termination; Confidentiality.
(a) The term of this Agreement shall commence the day the Service is accessible by You via the Internet and shall continue on a month to month basis, unless otherwise agreed to by the parties, or unless terminated earlier by the terms hereof.
(b) KinetiCast has the right to terminate this Agreement if any Authorized User is discovered using the Service in violation of paragraph 7 above. If KinetiCast terminates this Agreement by virtue of this provision, KinetiCast will retain any subscription fees already paid to it. No portion of these fees will be refunded to Licensee.
(c) The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability; (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the proprietary rights owned by KinetiCast, including without limitation, the confidential information referenced herein and (iii) the payment of taxes, duties, or any money due to KinetiCast hereunder.
(d) You acknowledge that on termination (or expiration) of the Service, KinetiCast has no responsibility to retain any data transmitted by You through the Service or provide anyone access to such data.
(e) Licensee acknowledges KinetiCast™s claim that the Service and the Software embodies logic, design and coding methodology, which constitute the valuable confidential information that is proprietary to KinetiCast. Licensee shall safeguard the access to the Service and the Software and using the same standard of care, which Licensee uses for its similar confidential materials, but in no event less than reasonable care.
9. Basis of Bargain
The Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of the agreement between KinetiCast and Licensee. KinetiCast would not be able to provide the Software on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability inure to the benefit of KinetiCast and authorized third parties.
10. Consumer End Users Only
The limitations or exclusions of warranties, remedies or liability contained in this Agreement shall apply to Licensee only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where Licensee is located.
11. Changes to Agreement
12. Third Party Software
The Service may contain or use third party software that requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are included herein and are made a part of and incorporated herein by this reference. By accepting this Agreement, you also accept the additional terms and conditions, if any, set forth therein.
This Agreement shall be governed by the internal laws of the State of New York, without giving effect to principles of conflict of laws. Licensee hereby consents to the exclusive jurisdiction and venue of the state or federal courts in Albany County, New York to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. Other than agreements issued by KinetiCast with respect to pricing and number of Authorized Users, this Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. Licensee agrees that any varying or additional terms contained in any purchase order or other written notification or document issued by Licensee in relation to the Service licensed hereunder shall be of no effect. The failure or delay of KinetiCast to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach. No KinetiCast dealer, agent or employee is authorized to make any amendment to this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, which provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. All questions concerning this Agreement shall be directed to: KINETICAST VISIONS, INC. Inc., 270 Mansion Street Coxsackie, NY 12051 Attention: LEGAL. KINETICAST and other trademarks contained in the Software are trademarks or registered trademarks of KINETICAST VISIONS, INC., in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You (or your company) may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not authorize you (or your company) to use KINETICAST's or its licensors' names or any of their respective trademarks.