Before using KioMedia, Inc. (“KioMedia”), please read these end user terms of service (“Terms”). “Customer” means the party identified as customer on an applicable order form. These terms are incorporated by reference into each order form executed by the Customer and KioMedia, pursuant to which the customer receives the right to access and use the online service. These Terms and the order form together form a binding and executed written agreement between Customer and KioMedia (“agreement”). The agreement is effective as of the effective date stated in the order form, or if no date is stated, then on the date the order form has been signed by both parties.
By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trademark law.
The Company hereby grants the User a conditional, revocable, and limited license to access the Site and use the Services on the following conditions. The User:
The User will pay to the Company all of the fees specified in the applicable Work Order, in United States currency, unless otherwise specified in the Work Order.Except as expressly set forth to the contrary in the Agreement, all payment obligations are non-cancellable and all amounts paid to the Company are nonrefundable except that which is expressly stated herein. Fees will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, all fees are due within fourteen (14) days from the invoice date.Unpaid invoices are subject to a late payment charge of 2.0% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). The User will be solely responsible for payment of all Taxes, except for those taxes based on the income of the Company. The User will not withhold any Taxes from any amounts due the Company. If the Company pays any such taxes on behalf of User, User will reimburse the Company for such payment.
In the event that the User effectively ceases a campaign prior to its completion, the User shall receive a refund of any unused credits that have yet to be used pursuant to such campaign. Under no other circumstances shall the Company issue any refund.
The User understands and acknowledges that all intellectual property rights in the Service, including but not limited to the material pertaining to the Service provided to the User to facilitate the use of the Service, belong to the Company. The User agrees not to: (a) copy, reproduce, distribute, or create derivative works based on the Service or any associated material; (b) reverse engineer or decompile any technology pertaining to the Service; or (c) resell or make any commercial use of the Service.
The Site holds certain content, such as text,graphics, logos, button icons, images, audio clips, data compilations, and software,that is the property of the Company or its content suppliers and protected by international copyright laws. The Site may contain or reference trademarks, patents,copyrighted materials, trade secrets, technologies, products, processes or other proprietary rights belonging to Company and/or other parties. No license to or right in any such trademarks, patents, copyrighted materials, trade secrets, technologies,products, processes and other proprietary rights of Company and/or other parties is granted to or conferred upon the User.
To notify the Company of any copyright-infringing content, please contact us at firstname.lastname@example.org with the following information in accordance with the Digital Millennium Copyright Act:
The User agrees to indemnify, hold harmless and defend the Company, along with its directors, employees and agents from and against any action,cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (i) this Agreement and/or any breach or threatened breach by the User; (ii) the User’s use ofthe Site or any service offered by the Company; (iii) any unacceptable, unlawful, or objectionable use of the Site or any service offered to the User by the Company; or(iv) any negligent or willful misconduct by the User; or (v) violation of any third party’s rights (including intellectual property rights) through the User’s use of the Site or the Service.
The User agrees to indemnify, hold harmless and defend the Company, along with its directors, employees and agents from and against any action,cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (i) this Agreement and/or any breach or threatened breach by the User; (ii) the User’s use of the Site or any service offered by the Company; (iii) any unacceptable, unlawful, or objectionable use of the Site or any service offered to the User by the Company; or (iv) any negligent or willful misconduct by the User; or (v) violation of any third party’s rights (including intellectual property rights) through the User’s use of the Site or the Service.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO THE USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SITE, ANY SERVICE OFFERED BY THE COMPANY, USER CONTENT, OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) ANY PARTY’S USE OR INABILITY TO USE THE SITE; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY DATA OR ANY TRANSMISSION OF DATA; (D) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED (OR NOT TRANSMITTED OR RECEIVED) BY/FROM ANY PARTY; AND/OR (E) ANY CONTENT OR DATA FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, OR THE SERVICE; WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER.
THIS SITE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THIS SITE AND ANY SERVICE OFFERED BY THE COMPANY IS AT THE USER’S SOLE RISK. THE COMPANY MAKES NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT; (B) THAT THE SITE, OR THE SERVICE WILL MEET THE USER’S REQUIREMENTS; (C) THAT THE SITE WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION, DATA OR CONTENT OBTAINED FROM THE SITE, OR THE SERVICE WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY OR FREE FROM VIRUSES OR OTHER FORMS OF DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY THE USER FROM THE COMPANY, WHETHER IN ORAL, WRITTEN OR ELECTRONIC FORM, RELATING TO THE USER’S USE OF THIS SITE, THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
The Company has the right at any time or from time to time to modify or amend this Agreement. Should the Company choose to modify this Agreement the Site will display such changes, which will be User’s only notification of any such change. Any use of the Site or the Service by User after such notification shall constitute User’s acceptance of the modified or amended terms. No modification to this Agreement made by User shall be binding upon the Company.
In the event that the Company is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the Company or other causes beyond the Company’s reasonable control (a “Force Majeure Event”) the Company shall immediately give notice to the User and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the User may by giving written notice immediately terminate this Agreement.
This Agreement and the interpretation of the terms herein shall be governed by and construed in accordance with the laws of the State of California, without regard to the principles of conflict of laws. The User irrevocably submits to the exclusive jurisdiction of the federal and state courts located in San Diego County, California. Except for a misuse or infringement of the Company’s intellectual property, any and all disputes, controversies and claims arising out of or relating to this Agreement, or concerning the respective rights or obligations of the Parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator pursuant to the Commercial Rules then in effect of the American Arbitration Association. Judgment upon the award rendered may be entered in any