Kamioke Terms of Service
Kamioke, LLC’s (“We”, “Our”) mobile device software application (the “Kamioke Service”), Web site, web widgets, and any other mobile or web SERVICE or applications owned, controlled, or offered by Kamioke (collectively, the “KAMIOKE”). Users who access, download, use, purchase and/or subscribe to the KAMIOKE (collectively or individually “You” or “Users”) must do so under the following terms and conditions of service.
BEFORE USING ANY KAMIOKE SERVICE, PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY ACCESSING, DOWNLOADING, USING, PURCHASING AND/OR SUBSCRIBING TO THE KAMIOKE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS OF SERVICE, INCLUDING ANY FUTURE MODIFICATIONS TO THESE TERMS AND CONDITIONS OF SERVICE (COLLECTIVELY, THE “AGREEMENT”), WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN PLEASE CEASE USING THE KAMIOKE IMMEDIATELY.
THIS AGREEMENT CONSTITUTES YOUR AGREEMENT WITH KAMIOKE WITH RESPECT TO YOUR USE OF THE SERVICE. YOU MUST AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT IN ORDER TO BECOME OR REMAIN AN AUTHORIZED USER OF THE SERVICE.
1. MODIFICATIONS TO THIS AGREEMENT
We reserve the right, at our discretion, to change, modify, add, or remove portions of this Agreement (including the Guidelines) at any time by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on the KAMIOKE SERVICE. Please check this Agreement (including the Guidelines) periodically for changes. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Your continued use of the KAMIOKE Service after our dispatching of an e-mail notice to you (if applicable) or the posting of any modifications or changes on the KAMIOKE Service constitutes your binding acceptance of such changes. For any material changes to this Agreement (including the Guidelines), you acknowledge and agree that any such amended or modified terms shall automatically be effective thirty (30) days after our dispatch of an e-mail notice to you (if applicable) or thirty (30) days after they are initially posted on the KAMIOKE SERVICE. These changes will be effective immediately for new Users of the KAMIOKE Service.
2. OWNERSHIP; PROPRIETARY RIGHTS
The KAMIOKE LLC SERVICE are owned and operated by SaJo Entertainment, LLC. The KAMIOKE LLC Software, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, SERVICE, including, but not limited to, the mobile device applications, and all other elements of the KAMIOKE LLC SERVICE (collectively, the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the KAMIOKE LLC SERVICE are the property of KAMIOKE LLC or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names displayed on the KAMIOKE LLC SERVICE are proprietary to KAMIOKE LLC or its affiliates and/or third-party licensors. Except as expressly authorized by KAMIOKE LLC under this Agreement, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
3. GUIDELINES; USAGE RULES; PROHIBITED CONDUCT & USES
- 3.1) YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU WILL COMPLY WITH THE GUIDELINES AND YOU MAY NOT AND WARRANT THAT YOU WILL NOT:
- use the KAMIOKE LLC SERVICE or any location information displayed within the KAMIOKE LLC SERVICE to “stalk”, harass, abuse, defame, threaten or defraud other Users, or collect, attempt to collect, or store location or personal information about other Users. You will keep all information provided to you through the Service as private and confidential and will not give such information to anyone without the permission of the person who provided it to you;
- use the KAMIOKE LLC SERVICE if you are under the age of 18 years old;
- include offensive or pornographic materials or materials that are harmful to minors in your KAMIOKE LLC SERVICE personal profile page;
- use the KAMIOKE LLC SERVICE for any commercial or non-private use, it being understood that the KAMIOKE LLC SERVICE are for personal, non-commercial use only;
- use the KAMIOKE LLC SERVICE for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control;
- make unsolicited offers, advertisements, proposals, or send junk mail, to other Users of the KAMIOKE LLC SERVICE. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the KAMIOKE LLC SERVICE accounts of other Users;
- misrepresent the source, identity or content of information transmitted via the KAMIOKE LLC SERVICE;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of the KAMIOKE LLC SERVICE, features that prevent or restrict use or copying of any content accessible through the KAMIOKE LLC SERVICE, or features that enforce limitations on use of the KAMIOKE LLC SERVICE;
- intentionally interfere with or damage operation of the KAMIOKE LLC SERVICE or any User’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
- post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, defamatory, libelous, offensive, obscene, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically or otherwise offensive to any group or individual, intentionally misleading, false, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
- post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
- use the KAMIOKE LLC Service with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
- use the KAMIOKE LLC Service in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the KAMIOKE LLC SERVICE could lead directly to death, personal injury, or severe physical or property damage;
- attempt to gain unauthorized access to the KAMIOKE LLC SERVICE, or any part of it, other accounts, computer systems or networks connected to the KAMIOKE LLC SERVICE, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the KAMIOKE LLC SERVICE or any activities conducted on the KAMIOKE LLC Service; or
- use any robot, spider, scraper or other automated means to access the KAMIOKE LLC SERVICE for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the KAMIOKE LLC SERVICE or modify the KAMIOKE LLC SERVICE in any manner or form, nor to use modified versions of the KAMIOKE LLC SERVICE, including (without limitation) for the purpose of obtaining unauthorized access to the KAMIOKE LLC SERVICE.
4. USAGE; REFUSAL OR SUSPENSION OF SERVICE
- 4.1) If you elect to register for an account with KAMIOKE LLC, you represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your KAMIOKE LLC account login information and are fully responsible for all activities that occur under your KAMIOKE LLC account. You agree to immediately notify KAMIOKE LLC of any unauthorized use, or suspected unauthorized use of your KAMIOKE LLC account or any other breach of security. KAMIOKE LLC cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- 4.2) KAMIOKE LLC RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER’S USE OF THE KAMIOKE LLC SERVICE, INCLUDING A USER’S REGISTRATION OR INVITE-A-FRIEND ATTEMPTS, AS WELL AS A USER’S USE OF OR ACCESS TO THE LOCATION INFORMATION AND PROFILES OF OTHER USERS. ACCORDINGLY, KAMIOKE LLC ALSO RESERVES THE RIGHT TO (A) DISABLE ANY USER’S USE OF OR ACCESS TO THE KAMIOKE LLC SERVICE, INCLUDING THE LOCATION INFORMATION OR PROFILES OF OTHER USERS, OR (B) TERMINATE ANY USER’S ACCOUNT, FOR ANY REASON AND WITHOUT ANY NOTICE.
- 4.3) You alone are responsible for your involvement with other Users. You agree that KAMIOKE LLC will not be responsible for any loss or damage incurred as the result of any such interactions. KAMIOKE LLC reserves the right, but has no obligation, to monitor disagreements between you and other Users.
- 4.4) KAMIOKE LLC does not control the content of User accounts and profiles. KAMIOKE LLC has the right, but does not have any obligation, to monitor such content for any purpose. You acknowledge that you are solely responsible for all content and material that you provide to the KAMIOKE LLC SERVICE.
- 4.5) PLEASE NOTE: KAMIOKE LLC RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER, FOR ANY REASON AND WITHOUT ANY NOTICE.
5. USER SUBMISSIONS
- 5.1) The KAMIOKE LLC SERVICE allow the submission of content and materials (such as pictures, ideas, notes, concepts, or creative suggestions) by you and other Users (“User Submissions”), and the hosting, sharing and/or publishing of such User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use, and authorize KAMIOKE LLC to use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the KAMIOKE LLC SERVICE and this Agreement; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the KAMIOKE LLC SERVICE and this Agreement. For clarity, you shall retain all of your ownership rights in your User Submissions.
- 5.2) You understand that when using the KAMIOKE LLC SERVICE you will be exposed to User Submissions from a variety of sources, and that KAMIOKE LLC is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent or objectionable.
- 5.3) KAMIOKE LLC assumes no responsibility whatsoever in connection with or arising from User Submissions. KAMIOKE LLC assumes no responsibility for actively monitoring User Submissions for inappropriate content. If at any time KAMIOKE LLC chooses, in its sole discretion, to monitor User Submissions, KAMIOKE LLC nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, KAMIOKE LLC does not endorse and has no control over the content of User Submissions submitted by other Users. KAMIOKE LLC makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, KAMIOKE LLC reserves the right to prevent you from submitting User Submissions and to edit, restrict or remove User Submissions for any reason at any time.
- 5.4) User Submissions are owned by the User who submitted them, subject to KAMIOKE LLC license to such User Submissions under this Agreement. User Submissions can not be shared, displayed or duplicated by any other party other than the submitted User, except as permitted under this Agreement.
- 5.5) You hereby grant, and you represent and warrant that you have the right to grant, to KAMIOKE LLC an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Submissions, and to grant sublicenses of the foregoing, solely for the purposes of including your User Submissions in the KAMIOKE LLC SERVICE. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions.
- 5.6) If you provide KAMIOKE LLC any feedback or suggestions regarding the Site or SERVICE (“Feedback”), you hereby assign to KAMIOKE LLC all rights in the Feedback and agree that KAMIOKE LLC shall have the right to use such Feedback and related information in any manner it deems appropriate. KAMIOKE LLC will treat any Feedback you provide to KAMIOKE LLC as non-confidential and non-proprietary. You agree that you will not submit to KAMIOKE LLC any information or ideas that you consider to be confidential or proprietary.
6. THIRD-PARTY SITES, PRODUCTS AND SERVICE; LINKS
- 6.1) The KAMIOKE LLC SERVICE may include links to other web sites or SERVICE solely as a convenience to Users. KAMIOKE LLC does not endorse any such linked sites or the information, material, products or SERVICE contained on other linked sites or accessible through other linked sites. Furthermore, KAMIOKE LLC makes no express or implied warranties with regard to the information, material, products or SERVICE that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products and SERVICE on linked sites or available through linked sites is solely at your own risk.
- 6.2) Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the KAMIOKE LLC SERVICE are solely between you and such advertiser. You agree that KAMIOKE LLC shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the KAMIOKE LLC SERVICE.
- 6.3) Parties other than KAMIOKE LLC may provide SERVICE or sell products via the KAMIOKE LLC SERVICE. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or the content of their product and service offerings. KAMIOKE LLC does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other terms and conditions of use.
- 6.4) By your use of third party applications that connect with the KAMIOKE LLC SERVICE (“Third Party Applications”), you acknowledge and agree that KAMIOKE LLC may transmit User Submissions to Third Party Websites or Third Party Applications through application protocol interfaces developed and maintained by those Third Party Websites or Third Party Applications. KAMIOKE LLC is not responsible for the transmission of the User Submissions from the KAMIOKE LLC SERVICE to Third Party Websites or Third Party Applications, nor the use of the User Submissions on any Third Party Websites or Third Party Applications. You should review the terms of service and privacy policies of any Third Party Websites or Third Party Applications. KAMIOKE LLC is not responsible for and does not endorse any features, content, or other materials on or available from Third Party Sites or Third Party Applications. KAMIOKE LLC also does not screen, audit, or endorse Third Party Sites or Third Party Applications. Accordingly, if you decide to access Third Party Sites or Third Party Applications, you do so at your own risk and agree that your use of any Third Party Sites or Third Party Applications is on an “as-is” basis without any warranty as to the Third Party Sites or Third Party Applications actions, and that this Agreement does not apply to your use of any Third Party Sites or Third Party Applications.
7. END USER LICENSES
- 7.1) Mobile or Wearable Technology Device To use the KAMIOKE LLC Software you must have a Mobile Device or Wearable Device that is compatible with the KAMIOKE LLC SERVICE. KAMIOKE LLC does not warrant that the KAMIOKE LLC SERVICE will be compatible with your Mobile Device or Wearable Device.
- 7.2) License Grant. Subject to the terms of this Agreement, KAMIOKE LLC hereby grants you a non-exclusive, non-transferable, revocable license to (i) use a compiled code copy of the KAMIOKE LLC Software for one KAMIOKE LLC SERVICE account on one mobile device owned or leased solely by you, for your personal, noncommercial use and (ii) use the KAMIOKE LLC SERVICE (other than the KAMIOKE LLC Software) for your personal, noncommercial use.
- 7.3) Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the KAMIOKE LLC Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the KAMIOKE LLC Software to any third party or use the KAMIOKE LLC Software to provide time sharing or similar SERVICE for any third party; (iii) make any copies of the KAMIOKE LLC Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the KAMIOKE LLC Software, features that prevent or restrict use or copying of any content accessible through the KAMIOKE LLC Software, or features that enforce limitations on use of the KAMIOKE LLC Software; or (v) delete the copyright and other proprietary rights notices on the KAMIOKE LLC Software.
- 7.4) Software Upgrades. You acknowledge that KAMIOKE LLC may from time to time issue upgraded versions of the KAMIOKE LLC Software, and may automatically electronically upgrade the version of the KAMIOKE LLC Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. You agree that KAMIOKE LLC will not be liable to you for any such modifications.
- 7.5) Open Source. With respect to any open source or third-party code that may be incorporated in the KAMIOKE LLC Software, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such open source software. In particular, nothing in this Agreement restricts your right to copy, modify, and distribute such open source software that is subject to the terms of the GNU General Public License.
- 7.6) Rights Reserved. The foregoing license grant under this Agreement is not a sale of the KAMIOKE LLC Software or any copy thereof and KAMIOKE LLC or its third party partners or suppliers retain all right, title, and interest in the KAMIOKE LLC Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. KAMIOKE LLC reserves all rights not expressly granted under this Agreement.
- 7.7) Trademarks, Service Marks and Logos.The name of this web site is a service mark of KAMIOKE LLC. No use of this mark shall be permitted except through the prior written authorization and permission of KAMIOKE LLC. All rights reserved.
- 7.8) Government End Users. If this KAMIOKE LLC Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the KAMIOKE LLC Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
- 7.9) Export Control. The KAMIOKE LLC Software originates in the United States, and is subject to United States export laws and regulations. The KAMIOKE LLC Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the KAMIOKE LLC Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the KAMIOKE LLC Software and the KAMIOKE LLC SERVICE.
7.10) App Stores. You acknowledge and agree that the availability of the KAMIOKE LLC Software is dependent on the third party from which you received the KAMIOKE LLC Software, e.g., the Android Google Play, (each, an “App Store”). You acknowledge that this Agreement is between you and KAMIOKE LLC and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the KAMIOKE LLC Software from it. You agree to comply with, and your license to use the KAMIOKE LLC Software is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.
8. VIOLATIONS; TERMINATION
You agree that KAMIOKE LLC, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate any account you have with the KAMIOKE LLC SERVICE or your use of the KAMIOKE LLC SERVICE or any portion thereof and remove and discard all or any part of your account or any User Submission, at any time. You agree that any termination of your access to the KAMIOKE LLC SERVICE or any account you may have or portion thereof may be effected without prior notice, and you agree that KAMIOKE LLC will not be liable to you or any third-party for any such termination. KAMIOKE LLC does not permit copyright infringing activities on the KAMIOKE LLC SERVICE, and reserves the right to terminate access to the KAMIOKE LLC SERVICE, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the SERVICE may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies KAMIOKE LLC may have at law or in equity.
9. DISCLAIMERS; NO WARRANTIES
- 9.1) THE KAMIOKE LLC SERVICE AND ANY THIRD-PARTY SOFTWARE, SERVICE, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE KAMIOKE LLC SERVICE ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. KAMIOKE LLC, AND ITS SUPPLIERS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
- 9.2) KAMIOKE LLC AND ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE KAMIOKE LLC SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE KAMIOKE LLC SERVICE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- 9.3) KAMIOKE LLC AND ITS SUPPLIERS AND PARTNERS (INCLUDING KAMIOKE LLC’S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY LOCATION INFORMATION OR THE OTHER KAMIOKE LLC SERVICE IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT KAMIOKE LLC OR ITS SUPPLIERS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICE OR EQUIPMENT NECESSARY TO ACCESS THE KAMIOKE LLC SERVICE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE KAMIOKE LLC SERVICE AT YOUR OWN DISCRETION AND RISK.
- 9.4) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10. INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify, defend, and hold KAMIOKE LLC (and its affiliated companies, contractors, employees, agents, and suppliers and partners) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, brought by a third party arising out of or related to (a) your use or misuse of any location information or the other KAMIOKE LLC SERVICE generally, (b) any violation of the rights of any other person or entity by you, (c) any breach or violation by you of this Agreement, or (d) your use the KAMIOKE LLC SERVICE to meet another User in-person or to locate and attend any offline place or event. KAMIOKE LLC reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
11. LIMITATION OF LIABILITY AND DAMAGES
- 11.1) YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL KAMIOKE LLC (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES [RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION INFORMATION; (B) YOUR USE OR INABILITY TO USE THE KAMIOKE LLC SERVICE; (C) THE KAMIOKE LLC SERVICE GENERALLY (INCLUDING THE KAMIOKE LLC SOFTWARE) OR SYSTEMS THAT MAKE THE KAMIOKE LLC SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH KAMIOKE LLC OR ANY OTHER USER OF THE KAMIOKE LLC SERVICE], EVEN IF KAMIOKE LLC OR A KAMIOKE LLC AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- 11.2) IN NO EVENT SHALL KAMIOKE LLC’S (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR THIRD-PARTY PARTNERS OR SUPPLIERS) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION [ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE KAMIOKE LLC SERVICE] (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE KAMIOKE LLC SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR FIFTY DOLLARS, WHICHEVER IS GREATER.
- 11.3) APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT KAMIOKE LLC’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
12. BENEFIT OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT KAMIOKE LLC HAS OFFERED THE KAMIOKE LLC SERVICE, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH ABOVE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND KAMIOKE LLC, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND KAMIOKE LLC. KAMIOKE LLC WOULD NOT BE ABLE TO PROVIDE THE KAMIOKE LLC SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
13. RELEASE. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, (1) any interactions with, or act or omission of, or User Submissions provided by, other KAMIOKE LLC Service Users or (2) any third party site, products, SERVICE, and links included on or accessed through the KAMIOKE LLC Service. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”.
14. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
- 14.1) It is KAMIOKE LLC policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, KAMIOKE LLC will promptly terminate without notice the accounts of Users that are determined by KAMIOKE LLC to be “repeat infringers.” A repeat infringer is a User who has been notified by KAMIOKE LLC of infringing activity violations more than twice and/or who has had a User Submission removed from the KAMIOKE LLC Service more than twice.
- 14.2) If you are a copyright owner or an agent thereof, and you believe that any content hosted on any KAMIOKE LLC Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing
KAMIOKE LLC Designated Copyright Agent with the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the applicable KAMIOKE LLC Service are covered by a single notification, a representative list of such works on the applicable KAMIOKE LLC Service;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit KAMIOKE LLC to locate the material;
- Information reasonably sufficient to permit KAMIOKE LLC to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.”).
- 14.3) KAMIOKE LLC Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
SaJo Entertainment, LLC
3941 S. Bristol St., Ste D45
Santa Ana, CA 92704
For clarity, only DMCA notices should go to the KAMIOKE LLC Designated Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
15. Memberships. Payments. Cancellation. Automatic Renewal. Final Sale: Any and all payments made to KAMIOKE LLC for use and access to any KAMIOKE LLC SERVICE and KAMIOKE LLC Software are final and all charges are nonrefundable. KAMIOKE LLC will use the credit card information you provide to bill you for goods and SERVICE. By registering for the Paid Memberships or Paid Features and providing your credit card details, you agree to be billed by us for your for-fee service in advance. Paid Memberships are subscriptions. After your initial subscription commitment period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing. You agree that your account will be subject to this automatic renewal feature. Paid Memberships cannot be transferred to any other account. Cancellations are effective the following billing period in which payment is due. You will not receive a refund for any payment amount, even if payment was made for multiple billing periods. If you have an account set up for reoccurring billing, you may cancel your account at any time. You will continue to have the same access for any billing period or periods for which you have paid. If you opt out of automatic renewal after your purchase, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. If your profile content or your conduct within the KAMIOKE LLC Software or KAMIOKE LLC SERVICE violates our Terms of Service, your access and account may be immediately terminated and all payments forfeited.
We reserve the right at any time to charge fees for access to portions of the KAMIOKE LLC SERVICE, KAMIOKE LLC Software or the KAMIOKE LLC SERVICE or KAMIOKE LLC Software as a whole
- 17.1) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
- 16.2) Jurisdiction.Except as set forth below, you agree that any action at law or in equity arising out of or relating to this Agreement or the KAMIOKE LLC SERVICE shall be filed only in the state or federal courts in and for Orange County, California and you hereby consent and submit exclusively to the personal jurisdiction of such courts for the purposes of litigating any such action. Nothing in this Agreement shall not prevent KAMIOKE LLC from seeking injunctive relief in a court of competent jurisdiction.
- 16.3) Arbitration.
- If a dispute arises between you and KAMIOKE LLC, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will notify us about any dispute you have with KAMIOKE LLC regarding the KAMIOKE LLC Service.
- You and KAMIOKE LLC agree that we will resolve any claim or controversy at law or equity that arises out of or relates to this Agreement or the KAMIOKE LLC Service(a “claim”) in accordance with this Section 18.3. Notwithstanding anything to the contrary, for any claim where the total amount of the award sought is less than $10,000 USD, the party requesting relief may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- All claims between you and KAMIOKE LLC must be resolved in accordance with this Section 18.3. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, KAMIOKE LLC may recover attorneys’ fees and costs up to $1,000, provided that KAMIOKE LLC has notified you in writing of the improperly filed claim, and you fail to promptly withdraw the claim. Similarly, should KAMIOKE LLC file a claim contrary to this Section, you may recover attorneys’ fees and costs up to $1,000, provided that you have notified KAMIOKE LLC in writing of the improperly filed claim, and KAMIOKE LLC fails to promptly withdraw the claim. The remedies in this subsection will not limit any other remedies that either party may have in law or in equity.
- 16.4) Severability, Waiver.If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
- 16.5) Notices.KAMIOKE LLC may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings on the KAMIOKE LLC SERVICE.
- 16.6) Assignment. This Agreement (including the Guidelines), and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by KAMIOKE LLC without restriction.
- 16.7) Survival.Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification and, specifically, Sections 1, 2, 4, 5, 6, 7, 8, 9.3, 9.5- 9.10, 11 through 19 hereby survive any termination of this Agreement or any termination of your use of or subscription to the KAMIOKE LLC SERVICE.
- 16.8) Headings; Entire Agreement.The heading references herein are for convenience purposes only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The word including means including without limitation. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement or Guidelines made by KAMIOKE LLC as set forth in Section 3 above.
- 16.9) Claims. YOU AND KAMIOKE LLC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE KAMIOKE LLC SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- 16.10) Disclosures. The SERVICE hereunder are offered by KAMIOKE LLC, 3941 S. Bristol St., Ste D45, Santa Ana, CA 92704.
Effective Date, May 23, 2014
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE
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