Terms of Use
LAST UPDATED: September 22nd, 2020
YOUR USE OF THE SERVICES (DEFINED BELOW) IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF AND AGREEMENT TO THESE TERMS OF USE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS INCLUDING MANDATORY ARBITRATION, NO CLASS RELIEF AND WAIVER OF YOUR RIGHT TO A JURY TRIAL.
This Terms of Use Agreement (this “Agreement”) states the terms and conditions under which GK Productions LLC (collectively, “GKP,” “We,” “Our” or “Us”) will agree to allow you (“You” or “Your”) to use the services such as the application (“App”) or website through which You are accessing this Agreement. These services may allow users to access and use content and services related to Us and Our business activities, which may include audiovisual content, images, text, data, news and other similar content (such content and services, collectively, the “Services”).
By accessing or using the Services, You agree to the terms of this Agreement. If You are the parent or legal guardian of a user of the Services who is under the age of 18, You consent to such user’s use of the Services, assume the obligations provided in this Agreement and assume full responsibility for such user’s use of the Services. Most of the Services are intended for users of all ages, however, some of the Services may have specific age requirements and You may not access any age-restricted Services unless You are of the required age. Features that are directed to parents and legal guardians are for parents and legal guardians only. When you access the Services through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply. We may make changes to this Agreement from time to time. We may notify You of such changes by any reasonable means, including by making available the revised version of this Agreement through or in connection with the Services. You can determine when We last changed this Agreement by referring to the “LAST UPDATED” legend above. Your access to or use of the Services following changes to this Agreement will constitute Your acceptance of those changes. Notwithstanding the foregoing, any changes to this Agreement shall not apply to any dispute between You and GKP arising prior to the date on which We posted the revised version of this Agreement incorporating such changes or otherwise notified You of such changes.
BY ACCESSING OR USING THE SERVICES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT OR, IF YOU ARE NOT, THAT YOUR PARENT OR LEGAL GUARDIAN HAS ENTERED INTO THIS AGREEMENT ON YOUR BEHALF.
1.0 INTELLECTUAL PROPERTY.
The Services are protected by trade dress, copyright, moral rights, trademark and/or other laws relating to intellectual property and other proprietary rights, and are solely and exclusively owned by GKP and its licensors. The Services are licensed, not sold, to end users. Subject to Your compliance with the terms and conditions of this Agreement, and solely for as long as You are expressly permitted by GKP to access the Services, GKP agrees to permit You to access and use the Services, on a non-exclusive, non-transferable, non-sublicensable, revocable, limited basis, solely for Your personal, non-commercial purposes and solely in accordance with this Agreement, including, with respect to any App made available via download, (i) to install such App on an Internet-connected PC, mobile phone or other device in Your possession and control, and (ii) to access and use such App as installed on such device. If You fail to comply with any of the terms or conditions set forth in this Agreement, this Agreement (including the foregoing grant of permission to use the Services) will automatically terminate, whereupon You will immediately (a) cease accessing and using the Services; and (b) for an App made available via download of a software application, remove (e.g., by uninstalling and deleting) such App from any mobile device on which You installed it.
Except as expressly set forth herein, the Services may not, except under written license from an authorized representative of GKP, be copied, reproduced, transmitted, displayed, performed, distributed, rented, sublicensed, altered, stored for subsequent use, or otherwise used, in whole or in part, in any manner whatsoever, except to the extent that such use is authorized under United States copyright and other relevant laws. You hereby acknowledge and agree that, as between You and GKP, GKP owns all right, title and interest in and to the Services, and that all rights in and to the Services not expressly granted in this Agreement are reserved by GKP and no additional licenses are granted or implied hereunder.
The trade names, trademarks and service marks owned by GKP, whether registered or unregistered, may not be used in connection with any product or service that is not Ours, or in any manner that is likely to cause confusion. Nothing contained in this Agreement or on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of GKP’s trade names, trademarks or service marks without GKP’s express prior written consent. Those trade names, trademarks and service marks that appear on or in connection with the Services and that are not owned by GKP, are the property of their respective owners.
PLEASE NOTE THAT UNAUTHORIZED USE OF THE SERVICES MAY SUBJECT YOU TO MONETARY DAMAGES AND OTHER CIVIL AND CRIMINAL PENALTIES, INCLUDING, WITHOUT LIMITATION, FOR COPYRIGHT INFRINGEMENT.
2.0 RESTRICTIONS.
In addition to any restrictions set forth in Section 1.0, You shall not (i) rent, lease, timeshare, license, distribute, sublicense or otherwise transfer any part or all of the Services (as a standalone product or in conjunction with other products); (ii) make copies of all or any portion of the Services, except solely as necessary to install and use an App in accordance with this Agreement; (iii) modify, translate, reverse engineer, decompile or disassemble the Services, except solely to the extent that such prohibition is not permitted under applicable law; (iv) create derivative works of or from the Services; (v) incorporate any part of the Services into any product or service; (vi) use the Services for commercial purposes; and (vii) remove, alter or obscure any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels that appear on the Services.
3.0 THIRD PARTY CONTENT.
The Services may include certain functionality that allows, via any online, mobile or wireless system or network with which the Services interact, the routing and transmission of, and online access to, third party software applications, services and content (“Third Party Content”). By using such functionality, You acknowledge and agree that You are directing Us to access and transmit to You Third Party Content associated with such functionality. Because We do not control Third Party Content, You agree that GKP, its subsidiaries, affiliates, and related entities, and their respective officers, directors, employees, agents, successors, licensees, distributors, and assigns (each a “GKP Entity” and collectively with GKP, the “GKP Entities”) are not responsible or liable for any Third Party Content, including the performance, accuracy, integrity, quality, legality, usefulness, or safety of, or intellectual property rights relating to, Third Party Content, or the results of their use. We have no obligation to monitor Third Party Content, and We may restrict or disable access to any Third Party Content (in whole or part) via the Services at any time. The availability of Third Party Content via the Services does not imply Our endorsement of, or Our affiliation with any provider of, such Third Party Content. Further, Your use of Third Party Content may be governed by additional terms and conditions that are not set forth in this Agreement or Our Privacy Policy (for example, terms and conditions that are made available by the providers of such Third Party Content). This Agreement does not create any legal relationship between You and the providers of Third Party Content, and nothing in this Agreement shall be deemed to be a representation or warranty by any GKP Entity with respect to any Third Party Content.
4.0 RULES OF CONDUCT.
While using the Services, You will comply with all applicable laws, rules and regulations. In addition, We expect users of the Services to respect the rights and dignity of others. Your access to and use of the Services is conditioned upon Your compliance with the rules of conduct set forth in this Section 4.0. Your failure to comply with any such rule (including, without limitation, Your repeated engagement in copyright infringement through or in connection with the Services) may result in termination of Your access to or use of the Services (or any parts thereof). You agree that You will not:
Post, transmit, or otherwise make available, through or in connection with the Services:
Anything that is or may be (i) threatening, harassing, degrading, hateful or intimidating; (ii) defamatory; (iii) fraudulent or tortious; (iv) obscene, indecent, pornographic or otherwise objectionable; or (v) protected by copyright, trademark, trade secret, right of publicity, or other proprietary right without the express prior consent of the owner of such right.
Any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; that promotes gambling; or that encourages or provides instructional information about illegal activities or activities such as “hacking,” “cracking” or “phreaking.”
Any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letter,” “pyramid scheme” or investment opportunity, or any other form of solicitation.
Any material that could disrupt or otherwise negatively affect other users’ ability to access or use the Services.
Any material non-public information about a company without the proper authorization to do so.
Use the Services for any fraudulent or unlawful purpose;
Provide untruthful, false or inaccurate information;
Interfere with or interrupt, or attempt to interfere with or interrupt, the operation of the Services or the servers or networks used to make the Services available; or violate any requirements, procedures, policies or regulations of such networks;
Make any unauthorized changes to any gameplay, scores or achievements;
Access or use the Services through any technology or means other than those expressly designated by Us;
Impersonate any person or entity, or misrepresent a relationship with any person or entity, including without limitation, misrepresenting a relationship with GKP;
Use the Services to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others’ privacy rights or rights of publicity;
Post, transmit, or otherwise make available, through or in connection with the Services or email to GKP any content that contains any “backdoors,” “key loggers,” “root kits,” viruses, “cancel bots,” “Trojan horses,” “Easter eggs,” “time bombs,” spyware or other harmful code, file or program that is harmful or invasive or that may be or is designed to interrupt, damage, destroy, hijack, limit the operation or functionality of, or monitor the use of, any computer software, hardware or telecommunications equipment;
Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Services;
Search, mine or link to any data or information made available through the Services without the prior written consent of a duly authorized representative of GKP;
Forge header information or otherwise manipulate identifiers in electronic communications to disguise the origin of any such communication sent to the Services;
Modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Services or any of the software used to provide any App;
Request, obtain, collect, store or modify personally identifiable information about other users of the Services;
Restrict or inhibit any other person from using the Services (including by hacking or defacing any portion of the Services);
Use the Services to advertise or offer to sell or buy any goods or services without GKP’s express prior written consent;
Remove any copyright, trademark or other proprietary rights notices from the Services or materials originating from the Services;
Create a database by systematically downloading and storing all or any of the Services’ content; and
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Services, without GKP’s express prior written consent.
If You violate any of the guidelines set forth above, or any other aspect of this Agreement, without limiting GKP’s other rights and remedies, GKP may immediately suspend or terminate this Agreement and/or any of Your rights pursuant to Section 1.0 above, without giving You any notice. GKP reserves the right to investigate and prosecute violations of any of the above to the fullest extent of the law. GKP may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.
Solely You are responsible for any violation of laws, rules or regulations that results from Your failure to abide by the terms of this Agreement.
5.0 USER POSTINGS.
GKP and/or Our third party service provider(s) may make available through the Services (for example, message boards, profile functionality, chat functionality and blogs, among other services) to which, subject to Section 7.0 below and subject to the other terms and conditions hereof, You are able to post information and materials. For any permitted information and/or materials You submit through the Services (each, a “Posting”), You grant to GKP and its designees a worldwide, non-exclusive, transferable, royalty-free, perpetual, irrevocable right and license, without compensation to You: (i) to use, reproduce, distribute, adapt (including, without limitation, edit, modify, translate and reformat), create derivative works of, transmit, publicly display, publicly perform and digitally perform such Posting, in any media now known or hereafter developed, for GKP’s business purposes, and (ii) to sublicense the foregoing rights, through multiple tiers, to the maximum extent permitted by applicable law. For each Posting, You represent and warrant that You have all rights necessary for You to grant the licenses granted in this Section 6.0, and that such Posting, and Your provision thereof to and through the Services, complies with all applicable laws, rules and regulations. No Posting shall be subject to any obligation of confidentiality of GKP and GKP shall not be liable for use or disclosure of any Posting.
You acknowledge and agree that: (i) GKP reserves the right (but has no obligation) to evaluate each Posting before allowing it to be posted on or in connection with the Services; and (ii) We may do one or all of the following, at Our discretion: (a) monitor Postings; (b) alter, remove, or refuse to post or allow to be posted any Posting; and/or (c) disclose any Postings, and the circumstances surrounding their transmission, to any third party (v) in order to operate the Services; (w) to protect the GKP Entities and Our users; (x) to comply with legal obligations or governmental requests; (y) to enforce this Agreement; or (z) for any other reason or purpose.
Information made available through the Services may be provided both by GKP and by third party users of the Services. Please note that users may post messages or make statements that are inaccurate, misleading or deceptive. GKP neither endorses nor is responsible for any opinion, advice, information or statements made on or in connection with the Services by third parties, including, but not limited to, users. Without limitation, GKP is not responsible for any information or materials made available through the Services (including, without limitation, errors or omissions in Postings or links or images embedded in messages) or results obtained by using any such information or materials. Under no circumstances will the GKP Entities be liable to You or any third party claiming through You for any loss or damage caused by Your reliance on such information or materials. The opinions expressed on or through the Services reflect solely the opinions of the individuals who submitted such opinions, and may not reflect the opinions of GKP.
In addition, GKP has no control over, and shall have no liability for, any damages resulting from the use (including, without limitation, republication) or misuse by any third party of information voluntarily made public on or through the Services. If You choose to make any of Your personally identifiable or other information publicly available on or through the Services, You do so at Your own risk.
6.0 UNSOLICITED SUBMISSIONS.
GKP does not accept unsolicited submissions of any work, idea, creative material, concept or other information, and GKP assumes no obligation, either express or implied, with respect to any work, idea, creative material, concept or other information submitted by You. In the event that You submit any work, idea, creative material, concept, or other information to GKP in violation of the previous sentence (each, an “Unsolicited Submission”), You hereby grant to GKP (and its subsidiaries, affiliates and related entities) the free and unfettered, worldwide, non-exclusive, sublicensable (through multiple tiers of sublicensees), assignable (in whole or in part, including sub-assignments), transferable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale, import, use and/or exploit in any way Your Unsolicited Submission in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to You or any provider, author, or owner of the Unsolicited Submission. No Unsolicited Submission shall subject GKP to any obligation of any kind, including without limitation, confidentiality, attribution, compensation, or otherwise, and GKP shall not be liable for any exploitation, use, or disclosure of any Unsolicited Submission. You hereby agree that no confidential or fiduciary relationship is intended or created by reason of the submission of any Unsolicited Submission by You. You hereby release the GKP Entities, to the maximum extent allowable by law, of and from, and irrevocably waive, any and all claims, costs, demands, liabilities, fees, penalties and other expenses of any kind whatsoever, known or unknown, that may exist or arise relating to, arising out of, or in connection with any Unsolicited Submission and/or GKP’s or any other GKP Entity’s use or disclosure of an Unsolicited Submission.
7.0 PRIVACY POLICY STATEMENT.
Any information that GKP may collect from You during or in connection with Your use of the Services is subject to Our Privacy Policy.
8.0 TRANSACTIONS.
If payment is required in order for You to access or use the Services (or any feature therein), or any product or service made available through the Services, and You wish to make such payment or purchase (each payment or purchase, a “Transaction”), You may be asked to supply certain information relevant to Your Transaction, including, without limitation, Your credit card number, the expiration date of Your credit card, Your billing address and Your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. We use a third-party payment service to process Transactions and fulfill orders. Your Transactions are subject to such third party’s user agreement and privacy policy, not this Agreement. You acknowledge and agree that We are not, and will not be, responsible or liable for such third party’s products, services, site, acts or omissions. We reserve the right to discontinue or change any third-party payment service used in connection with the Services.
GKP and its third-party payment service reserve the right, with or without prior notice, to change the descriptions, images, products, services and other materials accompanying or made available in connection with the Services; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all Transaction(s); and/or to refuse to provide any user with the Services (or any feature therein). Price and availability of the Services (or any feature therein), or any product or service made available through the Services, are subject to change without notice. Refunds and exchanges will be subject to Our third-party payment service’s refund and exchange policies then in effect.
To the extent that You conduct a Transaction or any other purchase or transaction through a third party or third-party site or platform (for example, the purchase of an App through Apple’s App Store or the Google Play Store), each such transaction will be subject to the terms and conditions applicable to such third party site or platform. Please see Section 11.0 below for more information on third party sites.
9.0 THIRD PARTY SITES.
The Services may provide links to or feeds from web sites and other online resources. Except as otherwise expressly stated by Us on the Services, We do not control and are neither affiliated with nor responsible for the operators of any third party web sites or other resources that link to or are linked from the Services, and We have neither reviewed nor endorsed such third party web sites or other resources. You hereby acknowledge and agree that GKP shall not be responsible for the content, products, services or other materials available on or through such third party web sites or other resources, or any loss or damages incurred in connection with such content, products, services or other materials. To the extent applicable, You are responsible for compliance with all applicable laws regarding content, products, services and other materials obtained from the Services or any third party web sites or other resources that link to or are linked from the Services.
In addition, other web sites may embed an App or link to the Services with or without Our authorization. We do not endorse any such site, and are not and shall not be responsible or liable for such web site, any links from any such site to the Services, any content, advertising, products or other materials available on any such sites or any loss or damages incurred in connection with any such site. GKP shall have the right, at any time and in its sole discretion, to block links to the Services through technological or other means without prior notice.
YOU AGREE THAT YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR MADE AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH WEB SITES AND RESOURCES. YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ANY SUCH TERMS AND CONDITIONS OF USE.
10.0 TERMINATION.
This Agreement can be terminated at any time by GKP for any or no reason whatsoever with or without prior notice to You. In the event that GKP terminates this Agreement, Your limited rights hereunder, including to the license granted to You in Section 1.0 above, shall immediately terminate, and GKP may immediately deactivate or delete Your password and user name (if any), and all related information and files associated with them, and/or bar any further access to such information or files. You agree that GKP shall not be liable to You or any third party for any termination of Your access to any of the Services or to any such information or files, and shall not be required to make such information or files available to You after any such termination. After Your account or access to the Services is terminated by Us or by You, the terms of this Agreement shall remain in full force and effect with respect to Your past and future use of the Services and Our rights in the Services shall survive any expiration or termination hereof.
11.0 DISCLAIMER; NO REPRESENTATIONS AND WARRANTIES.
THE SERVICES AND ALL SERVICES, PRODUCTS, THIRD PARTY CONTENT (AS DEFINED IN SECTION 3.0), INFORMATION AND MATERIALS MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICES (COLLECTIVELY, THE “MATERIALS”) ARE PROVIDED TO YOU “AS IS” WITHOUT ANY (AND THE GKP ENTITIES HEREBY DISCLAIM ANY) REPRESENTATION, WARRANTY, GUARANTEE OR PROMISE OF ANY KIND WHATSOEVER, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. YOUR USE OF THE SERVICES AND ANY MATERIALS IS AT YOUR OWN RISK. THE SERVICES AND THE MATERIALS MAY CONTAIN INACCURATE, INCOMPLETE, OR OUT-OF-DATE INFORMATION. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR THE MATERIALS, IN WHOLE OR IN PART, WILL BE ACCURATE, COMPLETE OR ERROR-FREE, NOR THAT ANY PARTICULAR DEVICES, OTHER HARDWARE OR SOFTWARE WILL BE COMPATIBLE WITH THE SERVICES OR ANY MATERIALS (IN WHOLE OR IN PART), AND YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (I) OBTAIN AND PAY FOR ANY DEVICES, OTHER HARDWARE, SOFTWARE AND SERVICES (INCLUDING, WITHOUT LIMITATION, INTERNET CONNECTIVITY) NEEDED TO USE THE SERVICES AND ANY MATERIALS (IN WHOLE OR IN PART) AND (II) ENSURE THAT ANY DEVICE, OTHER HARDWARE, SOFTWARE AND SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE SERVICES AND ANY MATERIALS (IN WHOLE OR IN PART). GKP ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS ON OR WITHIN THE SERVICES OR MATERIALS, AND MAKES NO COMMITMENT TO UPDATE ANY INFORMATION MADE AVAILABLE ON OR WITHIN THE SERVICES OR MATERIALS. YOUR SOLE AND EXCLUSIVE REMEDY FOR ISSUES RELATING TO, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES OR MATERIALS SHALL BE TO DISCONTINUE USING THE SERVICES. YOU HEREBY ACKNOWLEDGE AND AGREE THAT GKP SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY AND ALL LOSSES, DAMAGES, LIABILITIES, COSTS, PENALTIES, FEES OR OTHER EXPENSES OF ANY KIND RELATED TO, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR MATERIALS. ANY MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES ARE ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIALS.
12.0 LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU HEREBY RELEASE THE GKP ENTITIES OF AND FROM, AND IRREVOCABLY WAIVE, ANY AND ALL CLAIMS (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ACTUAL ATTORNEYS’ FEES AND COSTS, AND CLAIMS FOR INTEREST), EVEN IF GKP IS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RELATED TO, ARISING OUT OF, OR IN CONNECTION WITH (DIRECTLY OR INDIRECTLY) YOUR USE OF (OR INABILITY TO USE) THE SERVICES OR THE MATERIALS, YOUR VIOLATION OF THIS AGREEMENT OR THE VIOLATION OF THE RIGHTS OF ANY THIRD PARTY.
IN NO EVENT SHALL GKP’S TOTAL AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY RELATED TO, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, AND/OR THE MATERIALS, EXCEED FIVE UNITED STATES DOLLARS (US $5.00).
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF THE ACTS OR OMISSIONS OF THE GKP ENTITIES OR YOUR USE OF THE SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE SERVICES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SOME OF THE LIMITATIONS SET FORTH IN THIS AGREEMENT MAY NOT APPLY TO YOU. THE GKP ENTITIES’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. THIS PARAGRAPH WILL ONLY APPLY IF AN ARBITRATOR OR COURT WITH APPLICABLE JURISDICTION IN ACCORDANCE WITH THIS AGREEMENT FINDS EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY TO BE UNCONSCIONABLE OR OTHERWISE VIOLATE APPLICABLE LAWS. NOTHING IN THIS AGREEMENT SHALL EFFECT A WAIVER OF ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: 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.
13.0 INDEMNITY.
YOU UNDERSTAND THAT YOU ARE PERSONALLY RESPONSIBLE FOR YOUR BEHAVIOR WHILE USING THE SERVICES AND AGREE TO INDEMNIFY, DEFEND AND HOLD THE GKP ENTITIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS, PENALTIES, FEES OR OTHER EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ACTUAL ATTORNEYS’ FEES AND COSTS AND CLAIMS FOR INTEREST) THAT THEY MAY INCUR IN CONNECTION WITH ANY THIRD PARTY CLAIM RELATED TO, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES OR MATERIALS, YOUR VIOLATION OF THIS AGREEMENT OR THE VIOLATION OF THE RIGHTS OF ANY THIRD PARTY.
14.0 JURISDICTIONAL ISSUES.
The Services are controlled and operated by GKP from the United States and are not intended to subject GKP to the laws or jurisdiction of any state, country or territory other than those of the United States. GKP does not represent or warrant that the Services or any part thereof are appropriate or available for use in any particular jurisdiction. Those who choose to access the Services do so on their own initiative and at their own risk and are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the Services’ availability, in whole or in part, to any person, geographic area or jurisdiction We choose, at any time and in Our sole discretion.
15.0 GOVERNING LAW.
The formation, construction and interpretation of this Agreement shall in all respects be governed by and construed in accordance with the laws of the United States and the State of California, U.S.A., without giving effect to any principles of conflicts of laws. This Agreement shall not be governed by the United Nations Conventions of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded from any interpretation of this Agreement. It is hereby agreed that, subject to the Arbitration Section and the Disputes Section (below), any action at law or in equity arising under this Agreement and/or Your use of the Services shall be finally adjudicated or determined in any court or courts of the State of California or of the United States of America, in Los Angeles County, California, and the parties hereto hereby submit generally and unconditionally to the personal and exclusive jurisdiction and venue of these courts in respect to any such matter and consent to service of process by any means authorized by California law.
16.0 INFRINGEMENT POLICY.
We respect the intellectual property of others, and We ask Our users to do the same. The Services, including Materials incorporated by Us in the Services are protected by copyrights, patents, trade secrets or other proprietary rights. Some of the characters, logos or other images incorporated by Us in the Services are also protected as registered or unregistered trademarks, trade names and/or service marks owned by Us or others.
We, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the “Act”), reserve the right, but without obligation, to terminate Your license to use the Services if We determine in Our sole and absolute discretion that You are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. We accommodate and do not interfere with standard technical measures used by copyright owners to protect their materials. Therefore, in compliance with the Act, if You believe that any such third party materials infringe Your intellectual property please send an email to contact@glenkeane.com.
In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:
Your name, address, telephone number, and e-mail address;
A physical or electronic signature of a person authorized to act on behalf of (i) the owner of an exclusive right that is allegedly infringed or (ii) the person defamed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials;
Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate the material;
A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law; and
A statement that the information in the notice is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.
17.0 BINDING ARBITRATION OF ALL DISPUTES; NO CLASS RELIEF.
This “Binding Arbitration of All Disputes; No Class Relief” Section (the “Arbitration Section”) is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and We agree that We intend that this Arbitration Section satisfies the “writing” requirement of the Federal Arbitration Act. If binding arbitration is adjudged by a tribunal to be unenforceable, the provisions of the Dispute Section (below) shall apply to all relevant disputes between You and Us.
We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that You may have with Us. Therefore, pursuant to this Agreement, if You have any dispute or disagreement with Us regarding (i) Your use of or interaction with the Services, (ii) any purchases or other transactions or relationships (collectively, “Purchases, Transactions or Relationships”) related to Your use of the Services, or (iii) any data or information You may provide to Us or that We may gather in connection with such use, interaction or transaction, You will not have the right to pursue a claim in court, or have a jury decide the claim and You will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Services, or engaging in any other Purchases, Transactions or Relationships with Us, You agree to binding arbitration as provided below.
We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that You may have with Us. If those efforts fail, by using the Services, You agree that any complaint, dispute, or disagreement You may have against Us, and any claim that We may have against You, arising out of, relating to, or connected in any way with this Agreement or any Purchases, Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the Arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, We agree to provide the benefit of such Minimum Standards to You to the extent they are more favorable than this Arbitration Section, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this Arbitration Section shall not prevent any party from seeking provisional remedies in aid of Arbitration from a court of appropriate jurisdiction. You further agree that:
(a) Single Arbitrator. The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between You and Us (the “Arbitrator”);
(b) Arbitrator Will Interpret This Agreement. The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of this Agreement and/or this Arbitration Section, including but not limited to any claim that all or any part of this Agreement is void or voidable;
(c) Location of Arbitration. The Arbitration shall be held either: (i) at a location determined pursuant to the Applicable Rules (provided that such location is reasonably convenient for You and does not require travel in excess of 100 miles from Your home or place of business); or (ii) at such other location as may be mutually agreed upon by You and Us; or (iii) at Your election, if the only claims in the Arbitration are asserted by You and are for less than $10,000 in aggregate, by telephone or by written submission.
(d) Governing Law. The Arbitrator (i) shall apply internal laws of the State of California consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with California or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
(e) No Class Relief. The Arbitration can resolve only Your and/or Our individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
(f) Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
(g) Arbitration Costs. In the event that You are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, We will pay as much of Your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the Arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that Your claim(s) were frivolous or asserted in bad faith;
(h) Reasonable Attorney’s Fees. In the event You recover an Award greater than Our last written settlement offer, the Arbitrator shall also have the right to include in the Award Our reimbursement of Your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but We shall in all events bear Our own attorneys’ fees; and
(i) Interpretation and Enforcement of Arbitration Clause. With the exception of subpart (e) above, if any part of this Arbitration Section is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this Arbitration Section shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Section shall be null and void, and neither You nor We shall be entitled to arbitrate any dispute between Us and You, and must instead bring any claims subject to subsection (k) below and the Disputes Section.
(j) Modification of Arbitration Clause With Notice. We may modify this Arbitration Section, but such modifications shall only become effective thirty (30) days after We have given notice of such modifications and only on a prospective basis for claims arising from Purchases, Transactions or Relationships occurring after the effective date of such notification. If any modification pursuant to this subpart (j) is deemed to be invalid, unenforceable, or illegal, then the Arbitration Section effective at the time of Your agreement to this Agreement shall govern any dispute or disagreement between You and Us regarding Purchases, Transactions or Relationships.
(k) Small Claims Matters are Excluded. No Class Relief or Joinder of Claims. Notwithstanding the foregoing Arbitration Section, and subject to Sections 13.0 and 14.0, at Your option, You may bring any claim for damages You have against Us in Your local small claims court within the U.S., if Your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
(l) Confidentiality of Arbitration. You and We agree to maintain the confidential nature of the Arbitration and shall not disclose the fact of the Arbitration, any documents exchanged as part of any mediation, proceedings of the Arbitration, the Arbitrator’s decision and the existence or amount of any Award, except as may be necessary to prepare for or conduct the Arbitration (in which case anyone becoming privy to such confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or court order.
18.0 DISPUTE RESOLUTION ONLY IF A TRIBUNAL HAS RULED THAT ARBITRATION IS PROHIBITED BY LAW
This “Dispute Resolution only if a Tribunal has Ruled that Arbitration is Prohibited by Law” Section (the “Disputes Section”) applies only where applicable law, as determined by a court with appropriate jurisdiction, prohibits arbitration of disputes in accordance with the Arbitration Section.
(a) Applicable disputes. If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Services, any content therein, this Agreement or to any of Our actual or alleged intellectual property rights (collectively, an “Applicable Dispute”), then You and We agree to send a written notice to the other providing a reasonable description of the Applicable Dispute, along with a proposed resolution of it. Our notice to You will be sent to You based on the most recent contact information that You provide Us. But if no such information exists or if such information is not current, then We have no obligation under this Disputes Section. Your notice to Us must be sent via email to contact@glenkeane.com.
For a period of sixty (60) days from the date of receipt of notice from the other party, We and You will engage in a dialogue in order to attempt to resolve the Applicable Dispute, though nothing will require either You or Us to resolve the Applicable Dispute on terms with respect to which You and Us, in each of Our sole discretion, are not comfortable.
(b) Jurisdiction. The parties agree that the state or federal courts in Los Angeles County, California shall have non-exclusive jurisdiction of any Applicable Dispute.
(c) Governing Law. To the maximum extent permitted by the mandatory laws in Your country of residence, this Agreement and any Applicable Dispute arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of the U.S. and the State of California without regard to its conflicts of law provisions.
(d) Injunctive Relief. The foregoing provisions of this Disputes Section will not apply to any legal action taken by Us to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, any content therein and/or Our intellectual property rights (including such as We may claim may be in dispute), Our operations, and/or Our products or services.
19.0 NOTICE FOR CALIFORNIA USERS.
Under California Civil Code Section 1789.3, California users of the Services 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 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
20.0 GENERAL
(a) Severability. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
(b) No Waiver. No failure or delay by Us in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement.
(c) Headings. Division of this Agreement into sections and the use of headings is for convenience of reference only and shall not modify or affect the interpretation or construction of this Agreement, or any provision hereof.
(d) Entire Agreement. This Agreement constitutes the entire agreement by and between You and GKP pertaining to the subject matter hereof and supersedes all prior or contemporaneous agreements, representations, warranties and understandings of You and GKP. This Agreement may not be amended, nor any obligation waived, other than expressly in writing by GKP. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof.
(e) Assignment. This Agreement is binding upon and shall ensure to the benefit of parties and their respective successors, heirs, executor, administrators, personal representatives and assigns. You shall not assign Your rights or obligations hereunder without Our prior written consent and any such assignment shall be void and invalid at the outset.
(f) Acts of God. GKP shall be excused from its obligations for any period to the extent that GKP is prevented from performing, in whole or in part, its obligations under this Agreement, as a result of any acts of God, any action(s), regulation(s), order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulations(s), order(s), or request(s) prove(s) to be invalid), Internet or other communications failure, equipment failure, earthquake, war, fire, flood, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal) labor or material shortage, transportation interruption of any kind, work slow-down, civil disturbance, insurrection, riot, foreign or domestic court order, third party non-performance (including the acts or omissions of any suppliers, agents, or subcontractors) or any other cause beyond GKP’s reasonable control affecting production or delivery in any manner, including failure or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment or lines or other equipment, whether electronic or otherwise.
(g) Survival. Sections 1.0, 2.0, 3.0, 6.0, 7.0 and 10.0-22.0 of this Agreement and any other terms that by their nature survive this Agreement shall survive any termination of this Agreement.