TERMS AND C
Disclaimer of
Warranties
NEITHER KINETICA MEDIA,
LLC. NOR ITS AFFILIATES, NOR ANY OF
THEIR OFFICERS, DIRECTORS, OR EMPLOYEES, AGENTS, LICENSORS, OR THE LIKE,
WARRANT THAT KINETICA MEDIA, LLC. SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR
THAT THE CONTENT IS
KINETICA MEDIA, LLC. PROVIDES SERVICE(S) ON AN "AS-IS" AND "AS AVAILABLE" BASIS. KINETICA MEDIA, LLC. MAKES NO REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF KINETICA SERVICE(S) TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, KINETICA MEDIA, LLC. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY KINETICA MEDIA, LLC. NOR ITS AFFILIATES, SUBSIDIARIES NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PROVIDERS, CONTRACTORS OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL ANY USER RELY ON ANY SUCH INFORMATION OR ADVICE.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL KINETICA MEDIA, LLC. OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING KINETICA MEDIA, LLC. SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE, OR THE INABILITY TO USE, THE LOYAL MAIL SERVICE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF KINETICA MEDIA, LLC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS EXCLUSION AND LIMITATION OF LIABILITY SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, RELIANCE BY A USER ON ANY INFORMATION OBTAINED FROM KINETICA MEDIA, LLC., THAT RESULTS IN DAMAGE TO THE USER'S COMPUTER SYSTEM OR WEBSERVICE INCLUDING: DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. THIS EXCLUSION AND LIMITATION OF LIABILITY INCLUDES ANY AND ALL DAMAGE THAT MAY OCCUR TO USER'S COMPUTER SYSTEM, WEB SERVICE OR SERVER AS A RESULT OF THE SERVICES PROVIDED BY KINETICA MEDIA, LLC. TO THE USER. IN NO EVENT WILL KINETICA MEDIA, LLC.'S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY KINETICA MEDIA, LLC. FROM THE USER, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, KINETICA MEDIA, LLC.'S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Indemnification
User shall defend, indemnify, and forever hold Kinetica Media, LLC., its owners, shareholders, partners, members, affiliates, subsidiaries, officers, directors, employees, agents, providers, contractors and their heirs, successors and assigns, free and harmless from and against any and all actions, claims, liabilities, assertion of liabilities, losses, costs and expenses whatsoever, including, but not limited to, attorney fees, that any such parties may incur or be exposed to by reason of User's use or misuse of this service and the services provided herein. This indemnification shall extend to and apply to any and all such actions, claims, assertion of liabilities, losses, costs and expenses whatsoever, including, but not limited to, attorney fees, whether brought against Kinetica Media, LLC. by User or third parties due directly or indirectly to the User's use or misuse of Loyal Mail and the services provided herein.
Choice of Law and Forum
Loyal Mail was created and is controlled by Kinetica Media, LLC. in the State of Ohio. As such, the laws of the State of Ohio will govern this Terms and Conditions of Use Agreement, without giving effect to any principles of conflicts of law. User hereby irrevocably and unconditionally consents to the exclusive jurisdiction of the courts of the State of Ohio and the United States of America located in the State of Ohio for any litigation arising out of, or relating to, use of Kinetica Media, LLC. Services (and agrees not to commence any litigation relating thereto except in such courts), waives any objection to the laying of venue of any such litigation in the Ohio courts, and agrees not to plead or claim in any Ohio court that such litigation brought therein has been brought in an inconvenient forum.
Severability
The provisions of these Terms and Conditions of Use are intended to be severable. If any part of these Terms and Conditions of Use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Unless specified herein, this agreement constitutes the entire agreement between Users and Kinetica Media, LLC. with respect to the terms and conditions of use for this service. This agreement supersedes all prior and contemporaneous communications and proposals (whether written, oral or electronic) between User and Kinetica Media, LLC.
Notification of Changes in Terms
and Conditions of Use
Kinetica Media, LLC reserves the right to make changes to its product(s)/service(s) and this Terms and Conditions of Use Agreement. Notification will be provided by a link accessible from the www.kinetica-media.com homepage. User's continued use of product(s)/service(s) and User's account after the effective date of any change will be deemed acceptance and agreement of the new Terms and Conditions by User.
Termination
Either party may terminate the Agreement if the other party fails to perform any of its obligations in any material respect, and such failure continues for a period of thirty (30) days after receipt by the breaching party of written notice from the non-breaching party specifying such default. Either party may terminate this Agreement in the event that the other party ceases to do business, undergoes a bankruptcy or insolvency proceeding, or an assignment for the benefit of creditors. Upon the expiration or termination of the Agreement for any reason, the parties will return all confidential information of the other party in their possession. All payment obligations of Customer shall survive expiration or termination of the Agreement, as shall the parties' rights and obligations. Kinetica Media, LLC reserves the right, in its sole discretion, to terminate User's access to all or part of this service, and to terminate User's account upon giving Notice to User. Notice will be given via email. You agree by using this Service, not to reproduce, duplicate, copy, sell, resell, or exploit for any commercial purpose other than as provided herein, any portion of the Kinetica Media, LLC Service(s), use of the Service(s), or access to the Service(s).
Term and Level of
Service
The term shall commence on the Effective Date indicated in Customer's signed service agreement contract and shall continue for the period indicated in the agreement. The term shall automatically renew for the same period of time as the initial term unless, within 30 days of the end of any term, either party notifies the other of its decision to terminate the Agreement.
Assignment
This Terms and Conditions of Use Agreement is not assignable or transferable by Customer/User without the prior written consent of Kinetica Media, LLC.
Announcements and Design
Customer agrees that Kinetica Media, LLC may list Customer as a customer of Kinetica Media, LLC. in press materials (online/offline), and may also display Customer's corporate logo or any pictures, images, copy, verbiage, and "look and feel" from Customer's website(s) to brand their Loyal Mail Service on the www.kinetica-media.com website.
Kinetica Media Copyright Information
The "Kinetica Media name, logo, network, and/or product(s) and service(s) - Loyal Mail-" are trademarks of Kinetica Media, LLC. Used with permission. All rights reserved.