Last updated March 4, 2021
For all of our Kinected clients and students who have been with us prior to this update of Kinected’s Terms of Service, by continuing to receive Kinected’s services either online or in our physical location, you hereby accept these Terms of Service requirements. If you have any questions don’t hesitate to contact us at firstname.lastname@example.org
AGREEMENT TO TERMS
Your use of, purchase of, or participation in, the Services may be subject to additional terms, and such terms will be either listed in this Agreement or will be presented to you for your acceptance when you sign up to use the Services. Kinected may offer additional services or revise any of the Services, at its discretion, and this Agreement will apply to all additional services or revised services. Kinected also reserves the right to cease offering any of the Services.
The Site is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Site. You may not use the Site in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
HEALTH DISCLAIMER & WAIVER OF LIABILITY
With the exception of physical therapy services provided as pass through services by a third party at the Studio by Kinected Functional Manual Therapy, the content of the Services, including, but not limited to, any and all suggestions, opinions, recommendations, workouts, practices, routines and tips, is intended solely for instructional purposes. Such information is not intended to be, nor should it be used as, a substitute for professional medical advice, diagnosis, treatment or therapy. No person is entitled to rely or should rely on any such information without the approval of his or her qualified physician. You should not engage in any physical activity through the Services without first consulting with a qualified physician to determine if you can safely perform physical activity without adverse consequences. Particular caution should be used if you have a pre-existing medical condition, are pregnant or trying to become pregnant, or are breast-feeding.
Any exercise program may result in bodily injury, disability, and in rare circumstances, death. Always warm up before engaging in any physical activity, and stop immediately if you feel any pain or discomfort. The Services contain Pilates and various physical practices, some of which are strenuous and are intended for advanced practitioners. Accordingly, not all exercises are intended for every level.
By viewing a video or engaging in physical activity via the streaming videos or on the Site or at a Studio, you fully and irrevocably assume any and all risks of any kind resulting from performing any exercise on the Site or at Studio or taking any action, or failing to take any action, in connection with the content embodied on the Site.
None of the creators, authors, or publishers of the videos on the Site, or any entity or person associated with any such person, including, but not limited to Kinected Center LLC and Kinected LLC (collectively, the “Released Parties”), assumes or shall be deemed to have assumed any responsibility or liability for any injuries, losses, costs, claims or damages of any kind, including as a result of negligence of any kind ( collectively and individually, a “Loss”), that may occur as a result of using the Kinected Services or relying on any information contained in the Kinected Services. The Released Parties expressly disclaim any and all liability for any such Loss and, by viewing or using the Site, you shall be deemed to have expressly agreed that none of the Released Parties shall have any responsibility whatsoever for any Loss.
The information provided in the Kinected Services is provided without any warranty of any kind, express or implied, including any warranty of merchantability or fitness for a particular purpose.
2. Geographic Limitations. Using Kinected Services may be prohibited or restricted in certain countries. If you use Kinected Services from outside of the United States, you are responsible for complying with the laws and regulations of the territory from which you access or use Kinected Services. By using Kinected Services, you are representing and warranting that you are not located in, under the control of, or a national or resident of any country which the United States has (i) embargoed goods, (ii) identified as a “Specially Designated National”, or (iii) placed on the Commerce Department’s Table of Deny Orders. Registration for, and use of, Kinected Services are void where prohibited. To the extent that Kinected Services are not legal in your jurisdiction, you may not use Kinected Services. Kinected Services may not be used where prohibited by law.
3. Exclusive Use. You may access and view the content on the Site on your computer or other internet compatible device for your personal, internal use only. To the extent you need to download software or documentation to use the Site, we grant you a limited, non-assignable, non-transferable revocable license to use such materials solely to utilize the Site. Such license will terminate when you no longer use the Site. The Site, including any content and materials thereon, are only for your personal, non-commercial use. You may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity.
i. Apple and Android Devices
4. Prohibited Use. Any commercial distribution, publishing or exploitation of the Site or any content, code, data or materials on the Site, is strictly prohibited. You may not partake in any prohibited activity listed below or otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials on the Site. If you improperly use the Site, we may aggressively enforce our intellectual property and other rights to the fullest extent of the law. As a user of the Site, you agree not to:
a. Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
b. Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
c. Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
d. Use any information obtained from the Site in order to harass, abuse, or harm another person.
e. Make improper use of our support services or submit false reports of abuse or misconduct.
f. Use the Site in a manner inconsistent with any applicable laws or regulations.
g. Use the Site to advertise or offer to sell goods and services.
h. Engage in unauthorized framing of or linking to the Site
i. Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site.
j. Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
k. Delete the copyright or other proprietary rights notice from any Content.
l. Attempt to impersonate another user or person or use the username of another user.
m. Sell or otherwise transfer your profile.
n. Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
o. Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.
p. Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
r. Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
s. Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
t. Use a buying agent or purchasing agent to make purchases on the Site.
u. Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
v. Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise.
1. Ownership of Proprietary Information. Kinected owns and hereby retains all proprietary rights in the Services, including but not limited to, online videos, educational material, blog posts and all confidential information provided by Users. The Services are protected by copyright and other intellectual property laws throughout the world. Any future release, update or other addition to the Services shall be subject to this Agreement. Kinected reserves all rights not granted in this Agreement.
2. Name and Likeness of Instructors. The name and likeness and any online content related to the Kinected Instructors is governed solely by the unique agreements between Kinected and its instructors. You have absolutely no rights whatsoever to use, for any purpose including claimed Fair Use purposes any of the images, videos, written material or other intellectual property depicting the name and likeness of Kinected’s instructors without exception.
3. Content You Post. By posting information or content to any profile pages or public area of the Service “Posted Content,” you understand and acknowledge that this Posted Content, is not encumbered by any third party. The Company shall own any and all of the Posted Content provided by you and generated by and through this website and related online platforms including User Data generated from your Posted Content and shall have the exclusive right to use your Posted Content for any lawful purpose including but not limited to use, reproduce, publicly perform, publicly display and distribute, prepare and use derivative works thereof or incorporate into other works, and or sub-license to third parties at Kinected’s sole discretion. From time to time, we may create, test or implement new features or programs on Kinected Services in which you may voluntarily choose to participate, in accordance with the additional terms and conditions of such features or programs. By your voluntary participation in such features or programs, you grant us the rights stated in this subsection in connection with the additional terms and conditions (if any) of such features or programs and such participation shall have the same rules and conditions as your Posted Content.
4. Trademarks. Kinected’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Kinected and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
1. Creating an Account. In order to use the Site, you must create an account and password by providing us certain information about yourself and your credit card information. By doing so, you authorize us to access and use your profile information, in addition to any information we may collect automatically from your device upon account creation, and to charge your credit card for purchase of services. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
4. User Generated Contributions. The Site may invite you to chat, contribute to, or participate in livestream classes that may be recorded and archived for public viewing in an on-demand video library, blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”). Contributions may be viewable by other users of the Site and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. All such Contributions are hereby owned solely by Kinected and you relinquish all rights to such Contributions upon providing Contributions to the Company’s website, social media and any other online platforms and websites owned or controlled by the Company. When you create or make available any Contributions, you thereby represent and warrant that:
a. The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
d. Your Contributions are not false, inaccurate, or misleading.
e. Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
f. Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
g. Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
h. Your Contributions do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another.
i. Your Contributions do not violate any applicable law, regulation, or rule.
j. Your Contributions do not violate the privacy or publicity rights of any third party.
k. Your Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
l. Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors;
m. Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
5. Contribution Ownership. By submitting your Contributions to any part of the Site, you automatically grant, and you represent and warrant that you have the right to provide us with your Contribution and that your Contribution, is not encumbered by any third party. The Company shall own any and all of your Contributions generated by and through this website and related online platforms including User Data generated from your Contribution and shall have the exclusive right to use your Contribution for any lawful purpose (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels. Your Contributions are subject to the same rules and conditions as Posted Content as set forth in paragraph 3 above.
a. Kinected’s ownership of your Contributions will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
b. We do not assert any ownership over your overall name, likeness or logo per se, simply as integrated into Kinected’s website and related online or printed materials given such materials are owned by Kinected, any use of your name, likeness, logo Contributions and or Posted Content . You retain full ownership of your, name likeness and logo and any intellectual property rights or other proprietary rights associated with your Contributions but Kinected owns the content created integrating your Contributions and Posted Content. We are not liable for any statements or representations in connections of the integration of your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
c. We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Site; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.
6. User Data. We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data. The Company shall own all data generated by and through its website and related online platforms including User Data generated from your use of the Website.
7. Electronic Communications, Transactions, and Signatures. Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
Guidelines for Reviews. We may provide you areas on the Site to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organize a campaign encouraging others to post reviews, whether positive or negative. We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review. By posting a review, you expressly acknowledge that Kinected exclusively owns, controls, may assign, may sublicense, may reproduce, may modify may delete, may translate, may transmit by any means, may display, may perform and/or distribution all content related to the review that you post without exception at Kinected’s sole discretion.
8. Disclosure to Protect Abuse Victims. Notwithstanding any other provision of this Agreement or the Privacy Statement, Kinected reserves the right, but has no obligation, to disclose any information that you submit to the Services, if in its sole opinion, Kinected Services suspects or has reason to suspect, that the information involves a party who may be the victim of abuse in any form. Abuse may include, without limitation, elder abuse, child abuse, spousal abuse, neglect, or domestic violence. Information may be disclosed to authorities that Kinected, in its sole discretion, deems appropriate to handle such disclosure. Appropriate authorities may include, without limitation, law enforcement agencies, child protection agencies, or court officials. You hereby acknowledge and agree that Kinected is permitted to make such disclosure. Notwithstanding the paragraph Kinected shall have no liability whatsoever to you or any other third party regarding its decision to delete or not delete such information, content or Contribution.
9. Use of Anonymous Information for Research. By using the Services, you agree to allow the Services to anonymously use the information received from you through account creation, survey submissions and your activity through the Services to continue Kinected’s research. This research may be published in academic journals and other publications. However, all of your responses will be anonymous, and we will not publish research containing your personal identifying information.
1. Payment Information. You agree to pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You also agree to pay all applicable taxes. You must provide Kinected with valid payment information (“Payment Information”) in connection with your orders. By providing Kinected with your Payment Information, you agree that (i) Kinected is authorized to immediately invoice your account for all fees and charges due and payable to Kinected hereunder, (ii) Kinected is authorized to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services), and (iii) no additional notice or consent is required for the foregoing authorizations. You agree to immediately notify Kinected of any change in your payment information. Kinected reserves the right at any time to change its prices and billing methods. If payment cannot be charged to your payment card or your payment is returned for any reason, Kinected reserves the right to either suspend or terminate your access to the unpaid-for services.
2. Memberships. Kinected offers membership subscriptions to some of its Services. Membership charges are billed and automatically charged to the Payment Information on your account according to the membership terms. Memberships will be automatically renewed until cancellation or termination. Members may cancel their membership at any time. However, membership must be canceled prior to the renewal date in order to end membership charges.
a. Termination. Kinected reserves the right to terminate your membership at any time if you violate any of the terms of this Agreement. If your membership is terminated due to a violation of this Agreement, Kinected will not reimburse you for the remainder of any paid month, nor will reimbursements be made for membership cancellations prior to any monthly renewal date.
3. Cancellation and Refund Policy. All sales are final and non-refundable. You will not be entitled to any refunds, partial refunds or credits for cancellations for termination prior to the end of your monthly billing cycle, or for unused memberships.
4. Pricing. Kinected reserves the right to increase pricing at any time. For memberships, members will be provided with a 14-day notice period. Adjusted pricing for memberships will take into effect beginning the following billing cycle. If you are given less than 14 days’ prior notice to your next billing cycle for a membership price increase, the price increase will be applied in two (2) billing cycles.
5. Promotional Coupons. Kinected or third party affiliates may issue promotional coupons from time to time. Such promotional coupons are offered on an individual basis and cannot be shared with other users. Each promotional coupon may have its own set of rules, expiration date, details, and pricing. Kinected is not responsible for any promotional coupons or any other affiliate marketing that it did not authorize if You present discount codes or promotional coupons Kinected did not directly authorize.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site (“Submissions”) provided by you to us, including but not limited to Submissions provided during recorded livestream classes, are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
TERM AND TERMINATION
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
MODIFICATIONS AND INTERRUPTIONS
There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
DISCLAIMER OF WARRANTY
THE SERVICES, INCLUDING, WITHOUT LIMITATION, KINECTED’S CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER KINECTED NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE “KINECTED PARTIES”) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (B) THE CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO KINECTED OR VIA THE SERVICE. IN ADDITION, THE KINECTED PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
THE KINECTED PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
LIMITATION OF LIABILITY; WAIVER
UNDER NO CIRCUMSTANCES WILL THE KINECTED PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) KINECTED CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE KINECTED PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE’S OPERATION; OR (H) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE KINECTED PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE KINECTED PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE KINECTED PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF KINECTED’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE KINECTED PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE KINECTED PARTIES.
BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “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.”
KINECTED IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
You (and also any third party for whom you operate an account or activity on the Service) agree to defend (at Kinected’ request), indemnify and hold the Kinected Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your content or your access to or use of the Service; (ii) your breach or alleged breach of this Agreement; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Kinected in the defense of any claim. Kinected reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Kinected.
TIME LIMITATION ON CLAIMS
You agree that any claim you may have arising out of or related to your relationship with Kinected must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
GOVERNING LAW & VENUE
You agree that this Agreement, the Services and any dispute arising out of or relating to this Agreement will be governed by the laws of the State of New York (without giving effect to its conflicts of law principles). You acknowledge and agree that any violation of this Agreement may cause the Services irreparable harm, and therefore agree that the Services will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that the Services may have for a breach of this Agreement.
1. Binding Arbitration. If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall 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 (“AAA Consumer Rules”), both of which are available at the AAA website: www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in United States, New York. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
Jurisdiction, Law and Venue shall be in New York County, New York City, New York.
2. Restrictions. The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
3. Exceptions to Arbitration. The Parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
This Agreement constitutes the entire agreement between you and Kinected and governs your use of the Service, superseding any prior agreements between you and Kinected. You will not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Kinected. Any purported assignment or delegation by you without the appropriate prior written consent of Kinected will be null and void. Kinected may assign this Agreement or any rights hereunder without your consent. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or otherwise unenforceable, the parties nevertheless agree that such portion will be deemed severable from this Agreement and will not affect the validity and enforceability of the remaining provisions, and the remaining provisions of this Agreement remain in full force and effect. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement. This Agreement does not confer any third-party beneficiary rights.
CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:
151 W 19th St, 2nd Floor
New York, NY 10011