Effective: May 7, 2019
This Terms of Service Agreement (the “Agreement”) is made between AU LLC Koloden (“Company”) operator of Koloden.com and the software, materials, content, and services available therefrom and any updates, modifications, or enhancements thereto (collectively, the “Platform”), and you (the “User”) who may access and use the Platform and technology thereon, only pursuant to the following terms and conditions. In the event any translated version of the Agreement conflicts with the English version, the English version will control.
Table of Contents
- Acceptance of Terms
- Residency and Age
- Disclaimer of Warranties
- Platform Uses
- Proprietary Rights
- Platform Prohibitions
- Security of User’s System
- Term and Termination
- Limited Liability
- Take Down Requests, DMCA
- Dispute Resolution
1.Acceptance of Terms
By accessing and using the Platform, User hereby READS, UNDERSTANDS, ACCEPTS, and AGREES to be bound by this Agreement’s terms and conditions. Should User NOT accept these terms and conditions, User must neither access nor otherwise use any part of the Platform or content or information available therewith. To the extent permitted by law, Company may amend, at any time and from time to time, this Agreement by posting a version of this Agreement to https://koloden.com/terms. Company will notify User on its website and/or via email that amended terms have been posted. User agrees that its use of the Platform for 14 days after amendment of these terms constitutes an acceptance of such amendments. User shall have the opportunity to refuse said amendments solely by ceasing access to and utilization of the Platform.
2. Residency and Age
The Platform is intended to be accessed and utilized by Users who have attained the age of majority in their respective state, province, or country. By accessing and using the Platform, User hereby represents, warrants, and affirms that it is either at least 18 years of age, an emancipated minor, or has acquired a parent or guardian’s consent. User hereby affirms that it is, at a minimum and without exception, 13 years old. The Platform is not intended to be accessed or utilized by children less than 13 years of age.
3. Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY LAW, THE PLATFORM AND THE ENTIRETY OF ITS SERVICES, CONTENT, AND INFORMATION AND TRANSLATIONS THEREOF, AND MATERIALS PROVIDED THEREWITH ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE DUE TO COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATION THAT: (I) THE PLATFORM WILL MEET USER’S REQUIREMENTS; (II) ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) ANY INFORMATION OBTAINED THROUGH OR FROM THE PLATFORM WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY GOODS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE PLATFORM OR OTHER USERS WILL MEET EXPECTATIONS; (V) ANY USER-PROVIDED INFORMATION WILL NOT BE DISCLOSED TO THIRD-PARTIES; (VI) ANY DATA OR SOFTWARE ERRORS WILL BE CORRECTED; (VII) THE PLATFORM WILL OPERATE IN A PARTICULAR CONFIGURATION WITH PARTICULAR HARDWARE OR SOFTWARE; (IX) THE OPERATION OF ANY THIRD-PARTY OR SOFTWARE OR SYSTEMS THEREOF NECESSARY FOR PLATFORM OPERATION WILL BE SUFFICIENT; OR (X) THE INTERNET GENERALLY. NO DATA, ADVICE, OR INFORMATION OBTAINED FROM THE COMPANY PARTIES, AS DEFINED BELOW, SHALL CREATE ANY WARRANTY. USER HEREBY WAIVES ANY STATUTORY RIGHTS WITH RESPECT TO IMPLIED WARRANTIES.
COMPANY DOES NOT PROVIDE LEGAL ADVICE AND USER IS ADVISED TO CONSULT WITH ITS OWN ATTORNEY PRIOR TO USING THE PLATFORM OR ACTING UPON INFORMATION PURCHASED OR OBTAINED THERETHROUGH.
4. Platform Uses
a. Platform Usage Generally. The Platform generally allows a User, pursuant to the terms and conditions herein, to identify potential instances of intellectual property (“IP”) infringement occurring on User’s internet marketplace product and service listings. User may integrate its Amazon®, Wish®, DHGate®, and other marketplace accounts to the Platform via those marketplaces’ API or other data feeds. The Platform will automatically scan the text and images of the listings (“User Listing Data”) to determine the presence of protected IP assets within the listings and provide information to the User in the form of a report accessible to the User via its dashboard on www.koloden.com.
b. Limited License. Access and utilization of the Platform is licensed and not sold. Subject to User’s compliance with the terms and conditions herein, Company grants to User, only for its benefit and not on behalf of a third-party, a limited, non-exclusive, revocable license to access and use the Platform as set forth in Section 4(a).
c. Platform Updates. User acknowledges that Company may from time to time issue upgraded versions of the Platform and may automatically electronically upgrade the version of the Platform or components thereof. User consents to such automatic upgrading. Company may, in its sole discretion, require a minimum version of installed software for User to access and utilize the Platform.
d. Platform Monitoring. Company reserves the right to monitor the Platform and User’s account for any purpose including, without limitation, determining that User is in compliance with this Agreement and applicable laws. In addition, Company maintains the absolute and unconditional right to review and remove User Listing Data transmitted through the Platform that, in Company’s sole discretion, Company believes is in violation of the law, of this Agreement, or is otherwise unacceptable to Company in its sole discretion. Company may disclose information about User’s use of the Platform to satisfy any law, regulation, government agency request, court order, search warrant, subpoena, or other legal process.
e. Registration. To use certain features of the Platform, User may be asked to register with the Platform. User agrees: (i) to provide true, accurate, current and complete information (“User Information”) about itself as prompted by any registration form; and (ii) to maintain and promptly update its User Information to keep it true, accurate, current and complete. If Company has reasonable grounds to suspect that User Information is untrue, inaccurate, not current or incomplete, Company may suspend or terminate User’s access to and use of the Platform (or any portion thereof). User is solely and fully responsible for maintaining the confidentiality of its username and password (“Credentials”) and is solely and fully responsible for all activities that occur under its Credentials. User agrees to: (i) immediately notify Company of any unauthorized use of User’s Credentials or any other breach of security; and (ii) ensure that User logs off from its account at the end of each web applications session. Company cannot and will not be liable for any loss or damage arising from User’s failure to comply with this section, including User’s failure to provide accurate payment account information.
f. Paid Services.
(i) General. If User purchases any services that Company offers for a fee (“Paid Services”), such as a subscription to Company’s services, User authorizes Company and/or its designated payment processors to store User’s payment information and other related information. User also agrees to pay the applicable fees for the Paid Services (including without limitation periodic fees for ongoing subscriptions (the “Subscription Fees”) as they become due plus all related taxes (including, without limitation, sales and use taxes, duties, or other governmental taxes or fees), and to reimburse Company for all collection costs and interest for any overdue amounts. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Paid Services (including partially used subscription periods) except: (i) as required by applicable law; and (iii) at Company’s sole and absolute discretion. Fees for the Paid Services are payable per usage. Except as otherwise described in this Section 4, all prices for Paid Services are subject to change without notice.
(ii) Payment Method. Company may, from time to time, offer various payment methods, including without limitation payment by credit card, debit card, or other electronic means via certain payment providers. User authorizes Company to charge User for Paid Services through any payment method(s) User selects when purchasing the Paid Services (the “Payment Method”) and User agrees to make payment using such Payment Method(s) (Company may, from time to time, receive and use updated payment method information provided by User or that financial institutions or payment processors may provide to Company to update information related to User’s Payment Method(s), such as updated expiration dates or account numbers). Certain Payment Methods, such as credit cards and debit cards, may involve agreements between User and the financial institution, credit card issuer, or other provider of User’s chosen Payment Methods (the “Payment Method Provider”). If Company does not receive payment from User’s Payment Method Provider, User agrees to directly pay all amounts due upon demand from Company. User’s non-termination or continued use of the Paid Services reaffirms that Company is authorized to charge User’s Payment Method.
(iii) Automatic Renewal of Subscriptions. IF USER PAYS FOR A SUBSCRIPTION BY CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD IDENTIFIED ON COMPANY’S SERVICES) AND USER DOES NOT CANCEL USER’S SUBSCRIPTION AS SET FORTH IN THIS SECTION 4, USER’S SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED (FOR EXAMPLE, UNLESS USER CANCELS, A ONE MONTH SUBSCRIPTION WILL AUTOMATICALLY RENEW ON A MONTHLY BASIS). UNLESS OTHERWISE INDICATED IN ANY APPLICABLE ADDITIONAL TERMS OR COMMUNICATIONS COMPANY SENDS TO USER’S REGISTERED EMAIL ADDRESS, SUCH RENEWAL WILL BE AT THE SAME SUBSCRIPTION FEE AS WHEN USER FIRST SUBSCRIBED, PLUS ANY APPLICABLE TAXES, UNLESS COMPANY NOTIFIES USER AT LEAST 14 DAYS PRIOR TO THE END OF USER’S CURRENT TERM THAT THE SUBSCRIPTION FEE WILL INCREASE. USER ACKNOWLEDGES AND AGREES THAT USERS PAYMENT METHOD WILL BE AUTOMATICALLY CHARGED FOR SUCH SUBSCRIPTION FEES, PLUS ANY APPLICABLE TAXES, UPON EACH SUCH AUTOMATIC RENEWAL. USER ACKNOWLEDGES THAT USER’S SUBSCRIPTION IS SUBJECT TO AUTOMATIC RENEWALS AND USER CONSENTS TO AND ACCEPTS RESPONSIBILITY FOR ALL RECURRING CHARGES TO USER’S CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED ON THIS AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM USER AND WITHOUT FURTHER NOTICE EXCEPT AS REQUIRED BY LAW. USER FURTHER ACKNOWLEDGES THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE APPLICABLE TAX RATES CHANGE OR IF USER IS NOTIFIED THAT THERE WILL BE AN INCREASE IN THE APPLICABLE SUBSCRIPTION FEES.
(iv) Cancellation of Subscription. TO CHANGE OR CANCEL USER’S SUBSCRIPTION AT ANY TIME, USER MAY GO TO THE “USER ACCOUNT” PAGE AFTER LOGGING INTO THE PLATFORM AND ELECT “ACCOUNT REMOVAL.” IF USER CANCELS USER’S SUBSCRIPTION, USER’S SUBSCRIPTION BENEFITS WILL TERMINATE IMMEDIATELY, AND ANY USER SUBMISSIONS OR OTHER CONTENT ASSOCIATED WITH USER’S ACCOUNT WILL BE DELETED AND/OR RENDERED PERMANENTLY INACCESSIBLE.
(v) Current Billing Information Required. User agrees to provide current, complete, and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number, or credit card expiration date) as necessary for the processing of all payments that are due to Company. User agrees to promptly notify Company if User’s Payment Method is canceled (for example, due to loss or theft) or if User becomes aware of a potential breach of security related to User’s Payment Method. If User fails to provide any of the foregoing information, User acknowledges that User’s current Payment Method may continue to be charged for Paid Services and that User will remain responsible for all such charges.
(v) Change in Amount Authorized. If the total amount to be charged varies from the amount User authorized when purchasing any Paid Services (other than due to the imposition or change in the amount of taxes, including without limitation sales and use taxes, duties or other governmental taxes or fees), Company will provide notice of the amount to be charged and the date of the charge at least 14 days before the scheduled date of the transaction. If User does not cancel your Paid Services before the increased price goes into effect, User agrees to pay the increased price for the Paid Services. User agrees that Company may accumulate charges incurred and submit them as one or more aggregate charge during or at the end of each billing cycle. Company will inform User of any additional charges which are accumulated.
(vii) Payment Processors. Ordering services through the Platform involves utilizing the secured server of a payment processing service provider (“PSP” e.g., Stripe®). Neither PSP nor any person or company related to PSP holds any ownership interest in the Platform or Company, nor receives any financial benefit from the Platform or Company other than a fee paid by Company to PSP for the services performed by PSP. Company makes absolutely no representations and/or warranties, and provides no assurances, regarding the PSP, the PSP owner, or the quality, availability, legality, or description of the payment processing services offered thereon. COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PSP AND/OR THE SERVICES OFFERED THEREON.
5. Proprietary Rights.
(a) Ownership. User acknowledges and agrees that the Platform, media and content thereon, and any patents, copyrights, trade secrets, moral rights, trademarks (g., KOLODEN), know-how, or any related or other rights or interests or other intangible assets recognized under any laws, regulations, or international conventions, in any country or jurisdiction in the world (“Intellectual Property Rights”) contained therein is the sole property of Company, its wholly-owned subsidiaries, affiliates, licensors, suppliers, or other third parties. All rights and permissions in and to the Platform and Company’s media and content thereon not expressly granted herein are reserved by Company.
(i) For the term of this Agreement, and unless as otherwise agreed by Company in writing, Company grants User, solely provided that User adheres to all of the terms and conditions of this Agreement, a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable license to use the Platform for User’s own personal or commercial purposes only over the Platform and not offline or by any other means. The foregoing is an express limited use license and not an assignment, sale, or other transfer of the Platform or any of Intellectual Property Rights of Company or its licensors therein. Any rights not expressly licensed pursuant to this section 5(b)(i) are reserved and upon termination of this Agreement, all rights which are licensed shall terminate.
(ii) User grants Company (and its affiliates, distributors, and other agents it may designate in its discretion) a non-exclusive, worldwide, perpetual, royalty-free, irrevocable, sublicensable, transferable, right and license to use, distribute, reproduce, create derivative works of, distribute, publicly perform, publicly display, and transmit User Listing Data and any reviews User leaves for the Platform for any purpose in connection with the provision, operation, promotion, marketing, and improvement of the Platform and development of new Company services. The license granted in this Section 5(b)(ii) shall extend to the commercial utilization of User’s name and/or likeness. User shall not provide User Listing Data to the Platform unless User has the right to grant this license for such User Listing Data. If User submits ideas, suggestions, or anything else about the Platform (such as ways to improve the Services) to Company, User agrees that Company can use that feedback for any reason, without payment or other compensation to User, in any fashion, forever and throughout the world. User shall not submit any feedback to Company in which User does not wish to grant such rights.
6. Platform Prohibitions.
User agrees that it may NOT: (a) use the Platform or any content or information available through the Platform for any unauthorized purpose; (b) interfere with or damage the Platform including, without limitation, through the use of viruses, spyware, malware, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing, or methods that in any way reproduce or circumvent the navigational structure or presentation of the Platform; (c) use the Platform to collect, store, or distribute (e.g., “phish”) any information about any other person in violation of any law, including information related to persons under 13 years of age; (d) use to Platform to send or store infringing, sexually explicit, harassing, obscene, threatening, libelous, or otherwise unlawful or tortious communications or material, including material harmful to children or in violation of third-party privacy rights; (e) use the Platform to impersonate any person, company, or entity; (f) modify, sublicense, assign, give, transfer, translate, sell, resell, reverse engineer, decipher, decompile, or otherwise disassemble any code, data, content, services, or information available through the Platform or any software components used on or for the Platform or access thereto; (g) attempt to gain unauthorized access to the Platform or its related systems or networks; (h) use any third-party software or scripts to utilize the Platform or collect information from or through the Platform; (i) distribute, re-distribute, or permit transfer of the Platform or content or information available through the Platform in violation of any export or import law and/or regulation or restriction of the United States of America and its agencies or authorities, or without all required approvals, licenses or exemptions; (j) use the Platform to disseminate, store, or transmit unsolicited messages, chain letters, or unsolicited commercial e-mail; (k) use the Platform to disseminate, store, or transmit files, graphics, software or other material that actually, impliedly, or potentially infringes the Intellectual Property Rights of any person, entity, partnership, organization, association, or otherwise; (l) adapt, translate, or create any derivative works of the Platform or merge the Platform into any other software; (m) use the Platform to display or promote spyware, adware, spam, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, hate materials or materials urging acts of terrorism or violence, goods made from protected animal/plant species, recalled goods, any hacking, surveillance, interception, or descrambling equipment, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, the sale of tobacco or alcohol to persons under twenty-one (21) years of age, pornography, prostitution, body parts, any items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, or weapons and accessories; (n) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) of Company or its affiliates, partners, suppliers or the licensors of the Platform or materials available thereon or otherwise obscure or modify the any manner in which the Platform is displayed; (n) share access to User’s account; (o) access or utilize the Platform without permission on a stolen or lost device; or (p) assist any third-party in doing any of the foregoing.
7. Security of User’s System.
User shall be solely responsible for the security, confidentiality, and integrity of all content that User receives, transmits through or stores via the Platform, or any computer, mobile device, or related equipment that is used to access the Platform, including compliance with any internal IT and security policies and procedures any applicable federal and state requirements. User is solely responsible for any carrier rates for phone, data, and text messaging which may apply to User’s use of the Platform.
8. Term and Termination.
This Agreement remains effective from the moment User accesses or uses the Platform until terminated. This Agreement will terminate automatically without notice from the Company if User fails to comply with any provision of this Agreement. Company reserves the right, in its sole discretion and without prior notice to User, at any time and for any reason (e.g., unpaid subscription fees, extended Platform absence), to: (i) remove or disable access to all or any portion of the Platform; (ii) suspend User’s access to or use of all or any portion of the Platform; and (iii) terminate this Agreement.
The Platform may contain links to other Internet sites and resources, and User hereby acknowledges and agrees that: (i) Company shall not be responsible for the availability of such external sites or resources; and (ii) Company does not endorse and is not responsible or liable for any content, advertising, goods, or other materials on or available from such websites or resources. User agrees that Company 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 upon, any such content, goods or services available on or through any such website or resource.
10. Limited Liability. TO THE FULLEST EXTENT PERMITTED BY LAW:
a. USER ACCESSES THE PLATFORM AT HIS/HER OWN RISK AND IS SINGULARLY RESPONSIBLE FOR ANY LOSS, DAMAGE, OR COSTS INCURRED DURING SUCH ACTIVITY. COMPANY, ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, SUCCESSORS, OR ASSIGNS (“COMPANY PARTIES”) SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, UNDER ANY LEGAL THEORY, ARISING FROM OR RELATING TO: (I) THE PLATFORM’S AVAILABILITY; (II) THE ACTS, OMISSIONS, OR CONDUCT OF ANY USER OR THIRD-PARTY, WHETHER ONLINE OR OFFLINE; (III) ANY PLATFORM CONTENT; (IV) ANY GOODS OR SERVICES ACQUIRED AS A RESULT OF ANY INFORMATION OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH THE PLATFORM; (V) ANY USE OF ANY GOODS OR SERVICES MADE AVAILABLE ON ANY INTERNET RESOURCE OR WEBPAGE LINKED TO THE PLATFORM; (VI) INJURY OR DAMAGE TO USER’S COMPUTER OR EQUIPMENT RESULTING FROM ACCESS TO OR USE OF THE PLATFORM INCLUDING, BUT NOT LIMITED TO, WEB PAGE VIEWING, FILE DOWNLOADING OR STREAMING, SERVER USE OR ACCESS, OR FOLLOWING PLATFORM LINKS; (VII) ANY INCORRECT OR INACCURATE CONTENT POSTED ON OR RECEIVED FROM THE PLATFORM, REGARDLESS OF THE CAUSE OF SUCH INACCURACY; (VIII) ANY CONDUCT OF ANY USER OF THE PLATFORM; (IX) USER’S TERMINATION OF THIS AGREEMENT OR CANCELLATION OF ANY SERVICES; OR (IX) ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OPERATIONAL DELAY, COMMUNICATION LINE FAILURE, OR THEFT, BREACH, DESTRUCTION, OR ALTERATION OF USER’S COMMUNICATIONS INCLUDING, WITHOUT LIMITATION, THOSE FROM USER’S MARKETPLACE ACCOUNTS.
b. USER’S ACCESS OR USE OF ANY THIRD-PARTY INTERNET RESOURCE LINKED TO OR FROM THE PLATFORM, OR USER’S USE OF GOODS OR SERVICES FROM THIRD-PARTY INTERNET RESOURCES LINKED TO OR FROM THE PLATFORM, IS MADE AT USER’S OWN RISK. USER HEREBY RELEASES THE COMPANY PARTIES FROM ANY DAMAGES USER SUFFERS FROM USER’S ACCESS TO THIRD-PARTY INTERNET RESOURCES, AND USER AGREES NOT TO MAKE ANY CLAIMS AGAINST THE COMPANY PARTIES ARISING FROM ANY PURCHASE OR ACQUISITION OF GOODS AND SERVICES MADE AVAILABLE THROUGH THE PLATFORM OR THROUGH THIRD-PARTY INTERNET RESOURCES.
c. THE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE FAILURE, BY ANY PARTY, TO PROTECT USER PASSWORDS OR ACCOUNT INFORMATION. THE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY FAILURE OR PERFORMANCE DELAY UNDER THE AGREEMENT DUE TO CIRCUMSTANCES BEYOND THE COMPANY PARTIES’ CONTROL INCLUDING, BUT NOT LIMITED TO, NATURAL CATASTROPHES, GOVERNMENTAL ACTS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATION SYSTEM INTERRUPTIONS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION INTERRUPTIONS, OR ANY INABILITY TO ACQUIRE MATERIALS OR SUPPLIES. THE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY ILLEGAL, ABUSIVE, OR OTHERWISE INAPPROPRIATE ACTIVITY PERFORMED BY USER INCLUDING, WITHOUT LIMITATION, USING THE PLATFORM TO INFRINGE THE COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT(S) OF ANOTHER. THE COMPANY PARTIES SHALL NOT BE LIABLE FOR COMPLIANCE OR LACK THEREOF BY ANY THIRD-PARTY VENDORS WITH RESPECT TO ANY APPLICABLE LAWS AND REGULATIONS.
d. WITHOUT LIMITING THE FOREGOING, THE COMPANY PARTIES’ AGGREGATE LIABILITY TO USER OR ANY THIRD-PARTY, IN ANY MATTER ARISING FROM OR RELATED TO THE PLATFORM OR THE AGREEMENT, SHALL NOT EXCEED THE SUM OF ONE HUNDRED DOLLARS ($100.00).
e. User agrees that the release set forth in this Agreement may apply to unknown and unanticipated claims, damages, and expenses, and User waives any rights that it might have under Section 1542 of the California Civil Code or any other similar enactment of any jurisdiction. California Civil Code Section 1542 states: 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.
a. Occurrence. User agrees to defend the Company Parties to the fullest extent permitted by law, against any and all claims, demands and/or actions and indemnify and hold the Company Parties harmless from and against any and all losses, damages, costs and expenses, including reasonable attorney’s fees, (each a “Claim), regardless of whether such Claim is due to a Company Party’s active or passive negligence, arising out of or relating to: (i) any User breach of any provision of this Agreement and/or any representation or warranty identified herein; (ii) User’s use or misuse of the Platform, including without limitation any statement, data, or content made, transmitted, received, or republished by User which is infringing or otherwise prohibited as unacceptable in Section 6; (iii) any interactions with third-parties or goods and services obtained thereform; and (iv) any expenses Company incurs in enforcing this Section including, without limitation, reasonable attorney’s fees and costs.
b. Procedures. Company will promptly notify User of any claim or action with respect to any claim for indemnification hereunder, and User will undertake the defense or settlement and all related costs and expenses of any claim or action for which it has an indemnification obligation. User will have the right to settle or compromise any action to which its indemnification is applicable, except that User may not agree to any settlement without the prior written consent of Company if such settlement would cause Company to undertake any action, assume any liability, pay any monies, or acknowledge any wrongdoing or have a judgment entered against it. Notwithstanding the foregoing, Company will have the right to undertake the defense of any claim asserted against it at User’s expense in the event that: (i) User fails to assume the defense of such claim; (ii) Company reasonably determines that an adverse outcome could be material to Company’s business; (iii) there are conflicts between User’s and Company’s interests in such litigation; or (iv) Company reasonably believes that User does not have the financial resources needed to satisfy its indemnification obligation in the event of an adverse outcome.
13. Take-Down Requests, DMCA.
Company expressly prohibits users from uploading, posting, or otherwise distributing through the Platform any content which may violate another party’s Intellectual Property Rights, privacy, publicity, or other rights. If any User believes any Platform content violates or otherwise infringes upon any of User’s rights, User is encouraged to contact Company immediately to request that the allegedly offending content (“Offending Content”) to be removed from the Platform. To make such a request (“Take-Down Request”), User should provide Company’s designated agent, listed below, with:
a. the identity of the Offending Content in sufficient detail such that it can be readily located (e.g., “The image located at https://www.koloden.com/image123.jpg”);
In accordance with the Digital Millennium Copyright Act (“DMCA”), Company has designated a Copyright Agent who is charged with receiving notification of alleged copyright violations and may accept notification of other offending Platform content. If User believes in good faith that material appearing on this website infringes its copyright, provide notification, pursuant to 17 U.S.C. § 512(c)(3)(A), to Company’s Copyright Agent at:
AU LLC Koloden
Similarly, the DMCA provides that if one, in good faith, believe that a notice of copyright infringement has been wrongfully filed against him, he may send to Company’s Copyright Agent a counter notice, subject to the requirements set forth in 17 U.S.C. § 512(g)(3).
Lastly, it should be noted that individuals making misrepresentations made in alleging that material appearing on this website constitutes copyright infringement may be liable for damages pursuant to 17 U.S.C. § 512(f). Company will process proper Take-Down Requests, will promptly remove or disable access to any offensive or infringing content, and will terminate the accounts of repeat infringers.
14. Dispute Resolution Protocol.
a. Controlling Law and Jurisdiction. This Agreement will be interpreted in accordance with the laws of the State of Illinois and the United States of America, without regard to its conflict-of-law provisions. User and Company agree to submit to the personal jurisdiction of the state and federal courts located within Chicago, Illinois, for any actions involving actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
b. Negotiations. In the event any dispute arises except those disputes the involving actual or threatened infringement, misappropriation, or violation of a party’s Intellectual Property Rights, User and Company agree to first attempt to negotiate the resolution any dispute, informally for at least thirty (30) days before initiating any arbitration or court proceeding.
c. Other parties. User accepts that, as a corporation, Company has an interest in limiting the personal liability of its officers and employees. User agrees that it will not bring any claim personally against Company’s officers or employees in respect of any losses User suffers in connection with the Platform. Without prejudice to the foregoing, User agree that the limitations of warranties and liability set out in this Agreement will protect Company’s officers, employees, agents, subsidiaries, successors, assigns, and sub-contractors as well as Company.
d. Binding Arbitration. All claims arising from use of the Platform (except those disputes involving actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights) will be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. User understands that if either party elects to arbitrate, neither party will have the right to sue in court or have a jury trial. The arbitration will be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes both of which are available at the AAA website http://www.adr.org. The Parties will submit briefs of no more than 10 pages and the arbitration hearing will be limited to two (2) days maximum. The arbitrator must apply Illinois law and any award may be challenged if the arbitrator fails to do so. Unless otherwise agreed by the Parties, arbitration will take place in Chicago, Illinois. User’s arbitration fees and User’s share of arbitrator compensation will be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If User’s claim for damages does not exceed $10,000, Company will pay User’s share of arbitration fees unless the arbitrator finds that either the substance of User’s claim or the relief sought was frivolous or brought for an improper purpose as determined pursuant to Federal Rule of Civil Procedure 11(b). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing. The Parties may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
e. WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER. USER AND COMPANY AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN COMPANY AND USER INDIVIDUALLY. USER ACKNOWLEDGES AND AGREES THAT USER AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE USER’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING.
f. WAIVER OF RIGHT TO JURY TRIAL. EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING THERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
g. Limitation of Action. No action or proceeding shall lie or be maintained by User against the Company Parties, upon any claim, counterclaim, or cross-claim arising out of or based upon this Agreement, or by reason of any act or omission or any requirements relating to the giving of notices or information required hereunder, unless such action or proceeding shall be commenced within one (1) year of when the cause of action accrues, and otherwise such cause of action is permanently barred. User agrees to exclude, in its entirety, the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
a. No Waiver. To the maximum extent permitted by applicable law: (i) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be discharged by Company, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by Company; (ii) no waiver that may be given by Company will be applicable except in the specific instance for which it is given; and (iii) no notice to or demand on User will be deemed to be a waiver of any obligation of User or of the right of Company to take further action without notice or demand as provided in this Agreement.
b. Entire Agreement and Modification. This Agreement constitutes the complete and exclusive statement of the agreement between the Parties with respect to the Platform and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the Parties concerning the Platform. This Agreement may only be modified by Company and User as agreed in writing.
c. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
d. Remedies. The rights granted by Company herein are of a special, unique, and intellectual nature, which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated for in damages in an action at law. In addition, User acknowledges that during the course of accessing or using the Platform, User will or may have access to Company’s proprietary information, including, without limitation, Platform code and related materials. Accordingly, the breach by User of the provisions of this Agreement concerning Company’s proprietary rights will cause Company irreparable injury and damage for which Company will be entitled, without posting any bond or security, to seek injunctive or other equitable relief. The granting of equitable relief will not be construed as a waiver of any other rights of Company in law or in equity. User agrees that the rights and remedies of User in the event of a breach of this Agreement by Company shall be limited to the right to recover damages, if any, in an action at law, and in no event shall User be entitled to terminate or rescind this Agreement or enjoin or restrain Company’s use or exploitation of the User Listing Data.
e. Assignment. Company may assign any of its rights or delegate any of its obligations hereunder to any person or entity at any time without User’s consent. User may not assign any of its rights or delegate any of its obligations hereunder to any person or entity without the prior written consent of Company. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be construed to give any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement, except such rights as will inure to a successor or permitted assignee pursuant to this Section.
f. California Consumer Complaints. Pursuant to Cal. Civ. Code. § 1789.3, user complaints or requests for further information may be sent to firstname.lastname@example.org. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be reached at 1625 North Market Blvd., Suite N. 112 Sacramento, CA 95834 (800) 952-5210.
g. User Representations and Warranties. User represents and warrants that: (i) it is not prevented from and has the legal right and authority to enter into this agreement; (ii) its performance and the rights granted to Company hereunder shall not conflict with or violate any law, commitment, or agreement it has to any other person or entity; and (iii) no User Listing Data or User Information will infringe any Intellectual Property Rights.
h. Survival. Sections 3, 5(a), 5(b)(ii), 6-7, 9-11, and 14-15 shall survive the termination of this Agreement.
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