Terms & Conditions
Summary
The Genuosity KudosWorks Terms of Service (“Terms of Service”) are effective immediately upon the User’s acceptance of the Terms of Service by clicking the “Register & Sign In” button with the “I have read and I agree to the Terms of Service” checkbox checked, and your first use of the as defined herein. As used in the Terms of Service, the terms “you”, “your” or “user” all refer to the person using the Service in any way.
Provider operates a web-based service, which offers certain software applications for its customers. Client desires to subscribe for the use of such services under the terms of this Agreement. In consideration of the mutual covenants set forth in this Agreement, the parties agree as follows:
1. Software and Services
1.1 Permitted Uses and Restrictions on Use. Subject to the terms and conditions of the this Agreement, Client shall be entitled to use the Provider services described on Schedule A to this Agreement (the “Service”). In order to use the Service, Client is responsible at its own expense to acquire access to the World Wide Web, either directly or through devices that access web-based content, and to pay any service fees associated with such access. In addition, Client must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Client shall not attempt to access any other of Provider's systems, programs or data that are not made available for public use.
1.2 Provider Software. Provider may make available to Client as part of the Service certain software and/or utilities, together with any applicable user guides or other documentation (“Provider Software”). In connection with Client use of the Service under this Agreement, Provider hereby grants Client a non- exclusive, nontransferable limited license, without the right to sublicense, to use the Provider Software in object code form (except in the case of documentation), during the term of this Agreement, solely to offer for sale Client products and services by means of the Service. Client may not decompile, reverse compile, reverse engineer, reverse assemble or otherwise derive a source code equivalent for the Provider Software. In addition, Client may not copy or download any portion of the Provider without the express written consent of Provider.
1.3 General Practices Regarding Use and Storage. Client acknowledges that Provider may establish from time to time general practices and limits concerning Client’s use of the Service, including without limitation, establishing the maximum amount of storage space available for Client on Provider’s servers, as well as limiting the amount of bandwidth Client may use with the Service in a given period of time. For purposes of this Section 1.2, bandwidth is defined as the total amount of data downloaded from and uploaded to the Provider server in a given period of time. In addition, Provider may limit without notice the volume of e-mail forwarding or file downloading from Client’s database in response to unreasonable activity (such as spamming). Client agrees that except only as is specified in this Agreement, Provider has no responsibility or liability for the deletion, corruption, or alteration of, or failure to store any messages and other communications or other information, data, text (including but not limited to names of files, databases, directories and groups/realms of the same) (collectively referred to as "Content") maintained or transmitted by the Service. Client acknowledges that Provider reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
1.4 Links. The Service, other Service users, or third parties may provide links to other World Wide Web sites or resources. Because Provider has no control over such sites and resources, Client acknowledges and agrees that Provider is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. Client further acknowledges and agrees that Provider 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 use of or reliance on any such Content, goods or services available on or through any such site or resource.
1.5 Confidentiality of Client Content. Provider will not use any of Client’s Content for any purpose (other than providing the Service to Client) without Client’s consent. Notwithstanding the restrictions on Provider’s use of Client’s information, Provider shall be entitled to include Client’s name in published and otherwise distributed listings of Provider customers.
2. Client’s Responsibilities
2.1 Registration Obligations. In consideration for use of the Service, Client agrees to: (a) provide true, accurate, current and complete information about Client and its users in the required fields as prompted by the Service's registration form(s) (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Client provides any information that is untrue, inaccurate, not current or incomplete, or Provider has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Provider may suspend or terminate Client’s account and refuse any and all current or future use of the Service (or any portion thereof).
2.2 Acceptable Use Policy. Client agrees to comply with Provider's then-current Acceptable Use Policy as posted from time to time. (Together, the Acceptable Use Policy and the terms of this Agreement shall be referred to as the “Terms of Service.”) Client agrees that Provider may modify the Acceptable Use Policy at Provider's sole discretion. Client’s continued use of any of the Service after such modification shall constitute Client’s acceptance of the Terms of Service with the new modifications. If Client does not agree to any of such changes, Client may terminate the Terms of Service and immediately cease all access and use of the Service. Client agrees that such termination will be Client’s exclusive remedy if Client does not wish to abide by any changes to the Terms of Service. In addition, Provider may at any time introduce separate Terms of Service for users in certain jurisdictions and require users in these jurisdictions to agree to the separate Terms of Service. Provider may also require such users to agree that termination of the separate Terms of Service and cessation of all access and use of the Service would be their exclusive remedy if they do not wish to comply with the separate Terms of Service.
2.3 Restricted Use; No Resale, Etc. of the Service. Client agrees not to copy, sell, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service, use of the Service, or access to the Service. Such restrictions do not apply to the Content Client places on the Service provided that the use does not involve the Service in any way. Client agrees not to access the Service by any means other than through the interface that is provided by Provider for use in accessing the Service. For purposes of this Agreement, use by employees of Client shall be considered to be use by Client and any use for the benefit of Client other than by Client’s employees shall require the Provider’s prior written consent.
3. Proprietary Rights
3.1 Content Submitted to the Service. Client acknowledges that Provider does not pre-screen Content, but that Provider and its designees, contractors or subsidiaries shall have the right (but not the obligation) in their sole discretion to refuse or to remove any Content that is available via the Service. Without limiting the foregoing, and without notice to Client, Provider and its designees shall have the right to remove any Content that violates the Terms of Service or is otherwise objectionable. Client agrees that it must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. By submitting any Content to Provider, Client represents and warrants that: (i) Client is the owner of such Content, or has been granted all the rights necessary from the owner of such Content to submit such Content to Provider, and (ii) the use of such Content by Provider and its members will not infringe or misappropriate the intellectual property rights of or otherwise violate the rights of any third party.
3.2 Provider Proprietary Rights. Client acknowledges and agrees that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and Client agrees not to disclose such information to any third party without Provider's prior written permission. Client further acknowledges and agrees that Content contained in sponsor advertisements or information presented to Client through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
4. Modifications to the Service or Agreements
4.1 Modifications to the Service. Provider reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice. Should Provider choose to permanently discontinue the Service, Provider will post notification of this decision on the Service Web site at least thirty (30) days prior to such discontinuance. Client agrees that Provider shall not be liable to Client or to any third party for any modification, suspension or discontinuance of the Service, or for any resulting loss or destruction of any Content that Client places on the Service. Provider may specify from time to time the version(s) of related products required in order to use the Service (e.g. supported browser versions).
5. Fees
5.1 General. Client agrees to pay the applicable fees set forth on Schedule A. Provider reserves the right to modify its fees with or without notice. Pricing changes will become effective not less than thirty (30) days after they are posted on the Service Web site. A promotional plan of limited duration also may be offered from time to time at no charge.
5.2 Payment. Fees for use of the Service shall be due monthly upon invoice from Provider. All fees shall be non-refundable. Provider reserves the right to suspend Client’s account if Client fails to make payments as required. In addition, Provider reserves the right to assess a late payment charge of one and one- half percent (11&Mac218;2%) per month for any payments not made within thirty (30) days of the billing date hereunder; provided that, if the late payment charge stated above exceeds the maximum amount permitted by law, such charge will be reduced to the maximum lawful amount. Client will pay all costs (including attorneys’ fees) associated with collecting delinquent or dishonored payments.
6. Term and Termination
6.1 Term. The Term of Service shall be effective upon registration and thereafter shall continue on a month-to-month basis until terminated with thirty days written notice by either party, or until terminated as specified below.
6.2 Termination by Provider. Client acknowledges and agrees that Provider in its sole discretion, may suspend or terminate Client’s account and/or deny Client and its uses access to, use of, or submission of Content for, all or part of the Service, without prior notice and for any reason, including if Client engages in any conduct that Provider believes: (a) violates the letter or spirit of any term or provision of the Terms of Service, (b) violates the rights of Provider or third parties, or (c) is otherwise inappropriate for continued access and use of the Service. In addition, Provider reserves the right to terminate any membership account if that account has been inactive for greater than forty-five (45) days. Client agrees that upon termination, Provider we may delete all files and information related to Client’s account and may bar Client’s access to its account and the Service. Further, Client agrees that Provider shall not be liable to Client or any third-party for any termination of Client’s access to the Service.
7. Disclaimer of Warranties; Indemnity; LIMITATION OF LIABILITY
7.1 Disclaimer. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT:
(a) CUSTOMER’S USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PROVIDER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) PROVIDER AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN REVENUES OR PROFITS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S EXPECTATIONS. WHILE PROVIDER WILL USE COMMERCIALLY REASONABLE EFFORTS TO PREVENT UNAUTHORIZED ACCESS TO CLIENT’S CONTENT AND DATA WITHIN THE SERVICE, PROVIDER AND ITS SUPPLIERS MAKE NO WARRANTY THAT SUCH FIELDS WILL BE SECURE AGAINST SUCH UNAUTHORIZED ACCESS OR OTHER SECURITY BREACHES. PROVIDER AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TERMS OF SERVICE OR THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED OR OBTAINED AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM PROVIDER OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
7.2 Representations and Warranties. Client represents that, to the best of Client’s knowledge and belief, Client’s use of the Service does not directly or indirectly infringe the legal rights of a third party. Client further represents and warrants that all information provided by Client in connection with Client’s registration is accurate and reliable.
7.3 Indemnity. Client agrees to indemnify and hold harmless Provider, its subsidiaries and affiliates, and its and their directors, officers, agents and employees ("Indemnitees"), from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Client’s Content; Client’s use of the Service; Client’s connection to the Service; Client’s violation of the Terms of Service; or Client’s violation of any proprietary or other rights of another. Client further agrees and acknowledges that the Indemnitees are not liable or responsible in any way for any errors, omissions or any other actions arising out of or related to Client’s use of the Service. Client further agrees to indemnify, defend and hold harmless the Indemnitees from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, Client’s use of the Service, or the placement or transmission of any message, information, software or other materials through the Service by Client or related to any violation of any term of the Terms of Service by Clients or employee users of Client’s account. Provider has no responsibility for any fulfillment of Client’s orders, calculation of taxes or pricing or any other matters related to the Client’s orders received from its customers in connection with the use of the Service.
7.4 Limitation of Liability
(a) CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT PROVIDER AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE.
(b) CUSTOMER ALSO AGREES THAT PROVIDER WILL NOT BE LIABLE FOR ANY (A) INTERRUPTION OF BUSINESS, (B) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEB SITE(S) ACCESSED BY CUSTOMER THROUGH THIS SERVICE ; (C) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (D) UNAUTHORIZED ACCESS TO DATA ENTERED IN, OR BREACH OF ANY SECURITY MECHANISMS UTILIZED IN, THE SERVICE OR IN ANY RESTRICTED FIELD THEREIN; OR (E) EVENTS BEYOND PROVIDER'S REASONABLE CONTROL.
(c) IN NO EVENT SHALL PROVIDER'S MAXIMUM AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY CUSTOMER TO PROVIDER FOR THE SERVICE, TO A MAXIMUM AMOUNT EQUAL TO SERVICE CHARGES PAID FOR THE PRIOR SIX (6) MONTHS OF THE SERVICE.
7.5 Exclusions and Limitations. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 7.1 AND 7.4 MAY NOT APPLY TO CUSTOMER.
8. General Information
Notices to Client may be made via either e-mail, regular mail, overnight courier or facsimile at Client’s contact addresses of record for the Service. The Service may also provide notices of changes to the Terms of Service or other matters by displaying notices or links to notices to Client generally on the Service. If Client provides notice to Provider, such notice shall be sent to: Provider Inc., at the address set forth on the first page of this Agreement, Attn: President. The Terms of Service (and the policies linked to them) constitute the entire agreement between Client and Provider and governs Client’s use of the Service, superceding any prior agreements between Client and Provider (including, but not limited to, any prior versions of the Terms of Service) with respect to their subject matter. Client also may be subject to additional terms and conditions that may apply when Client uses affiliate or other Provider services, third-party content or third-party software. Except as otherwise provided herein, the Terms of Service shall be governed by the laws of the State of California, USA without regard to its conflict of law provisions. Except as otherwise provided in the Terms of Service, Client and Provider agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Diego, California, USA. The Terms of Service are in English, which shall be the controlling language of the agreement with Client with respect to the Service, and Client agrees that Client fully understands the terms of the same. In addition, all enquiries, support related or otherwise, regarding the Service should be submitted to Provider in English, and Provider will respond to such enquiries in English only. The Terms of Service do not limit any rights that Provider may have under trade secret, copyright, patent, trademark or other laws. The failure of Provider to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect. Client agrees that any claim or cause of action arising out of or related to use of the Service or the Terms of Service must be filed within one (1) year after such claim or cause of action 9. arose or be forever barred. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect. The Terms of Service will inure to the benefit of Provider and its successors and assigns. All representations, warranties, Sections 1.4, 1.5, 2.3 and 5.2, and the entirety of Articles 3, 7 and 8 of this Agreement shall survive the termination of Client’s account or access to the Service.
Schedule A
Provider Services. The “Service” shall consist of Client’s access to the application Genuosity KudosWorks.
Fees
Client shall pay Provider a subscription fee and/or transaction fee as a result of the use of the Service as specified by Genuosity’s current pricing policies.