KiKo Terms of Service
These Terms of Service (“Terms of Service”) describe the terms and conditions on which KiKo (“KiKo”) offers You access to www.objektyv.com or any related website, any mobile application(s) offered by KiKo, KiKo Data (as defined below) or service in or to which these Terms of Service is linked or referenced (collectively, the “Service”). By downloading or using the Service, you (“You” or “Your”) are agreeing to be bound by these Terms of Service. By accepting electronically (for example, clicking “I Agree”), installing, accessing or using the Service, You agree to be bound by the terms and conditions of these Terms of Service. Any services and products provided to You by KiKo directly or through the Service may also be governed by the written agreement(s) entered into between You and KiKo, and, in the event of any conflict between these Terms of Service and such written agreement, the written agreement shall apply for the services covered by such written agreement.
You represent and acknowledge that You have read, understood, and agree to be bound by these Terms of Service, and that the information You provide in registering for the Service is accurate, complete, and is Yours or within Your right to use. If You are entering into these Terms of Service on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to these Terms of Service, in which case the Terms of Service “You,” “Your” or related capitalized terms herein shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms of Service, You must not accept these Terms of Service and may not use the Service or Scanning Services (defined below).
You acknowledge that these Terms of Service govern Your use of the Service and Scanning Services and, except for written addendums signed by the parties that specifically modify these Terms of Service, these Terms of Service supersede any other agreements between You and KiKo. KiKo reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the Service or Scanning Services, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service or Scanning Services after any such changes shall constitute Your consent to such changes. You can review the most current version of the Terms of Service at any time at https://kikoxp.com/terms. Additional terms provided to You apply to any slide scanning services You order from KiKo through the Service (“Scanning Services”) in addition to these Terms of Service.
1. Description of Service
KiKo provides a platform for account holders to share scans of pathology slides and other content and to communicate with one another. KiKo may earn money through certain subscription fees and selling advertisements based on account holders’ self-identified specialties and zip codes. While KiKo does not currently charge fees for use of the Service, KiKo reserves the right, in its sole discretion, to charge You for and collect fees from You for use of the Service (and Scanning Services) with prior notice. If You fail to pay any fees due after such notice, KiKo reserves the right to terminate Your access to the Service (and Scanning Services).
The Service may contain links to, or otherwise may allow You to connect to and use certain third party products, services or software under separate Terms of Service and conditions (collectively, “Third-party Services”) in conjunction with the Service. In addition, You may access the Service on or through Third-party Services. If You decide to access and use such Third-party Services, be advised that Your use of the Third-party Services is governed solely by the terms and conditions of such Third-party Services, and KiKo does not endorse, is not responsible for, and makes no representations as to such Third-party Services, their content or the manner in which they handle Your data, including obtaining any consents necessary to display, collect, transmit, or otherwise use, any materials provided or collected by Third-party Services. KiKo is not liable for any damage or loss caused or alleged to be caused by or in connection with Your access to or use of any such Third-party Services, or Your reliance on the privacy practices or other policies of such Third-party Services.
Now or in the future, the Service may contain features that enable various Third-party Services (such as social media services like Facebook and Twitter) to be directly integrated into Your KiKo account, including using accounts with Third-party Services to authenticate an account with the Service. To take advantage of these features, You will be required to register for or log into such Third-party Services on their respective websites. By enabling Third-party Services within the Service, You are allowing KiKo to pass Your log-in information to these Third-party Services for this purpose.
2. Availability of the Service
You acknowledge that there may be interruptions in service or events that are beyond KiKo’s control. While KiKo uses reasonable efforts to keep the Service accessible, the Service may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of KiKo’s control, access to the Service may be interrupted, suspended or terminated. You further understand that there may be interruptions in service or events on third-party sites that will impact Your use of the Service and that are beyond KiKo’s control to prevent or correct. Interruptions in the Service that are beyond KiKo’s control shall not serve as a basis to terminate Your subscription (if applicable) or demand a full or partial refund of any prepaid fees, if any.
3. Intellectual Property Rights
KiKo shall maintain all rights, title and interest in and to all its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights, including rights in and to the Service, Scanning Services, KiKo Marks and KiKo Data (collectively, “Intellectual Property Rights”). The rights granted to You to use the Service and Scanning Services under these Terms of Service do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. “KiKo Data” means any data, including without limitation metadata, relating to the use of the Service, such as data schema, specific facts and other similar information collected by KiKo and made available via the Service.
Subject to applicable law, including applicable Privacy Laws, KiKo shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use, copy, exploit, modify, archive, store, adapt, translate, create derivative works from, and perform any suggestions, enhancement requests, recommendations or other feedback KiKo receives from You. KiKo, and KiKo’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of KiKo (collectively, “KiKo Marks”), and You may only use such KiKo Marks to identify Yourself as a customer and user of the Service; provided You do not attempt, now or in the future, to claim any rights in the KiKo Marks, degrade the distinctiveness of the KiKo Marks, or use the KiKo Marks to disparage or misrepresent KiKo, its services or products.
All rights, title and interest in and to the Service and its components and the Scanning Services, including all related Intellectual Property Rights, will remain with and belong exclusively to KiKo and its third-party vendors. Any use of the KiKo Marks shall inure to the benefit of KiKo.
Upon the condition that You comply with all of Your obligations under these Terms of Service, KiKo grants You a non-exclusive, non-transferable, revocable license to access and use the Service, strictly in accordance with these Terms of Service and subject to all the limitations set forth in these Terms of Service.
4. Signing Up/Registration
Subject to the terms and conditions of these Terms of Service and Your subscription order (if any), You agree to access and use the Service only for Your internal academic purposes as contemplated by these Terms of Service and Your subscription order. In order to use the Service (other than the publicly available portion of the KiKo website or mobile application), You are required to register with KiKo.
To be eligible to use the Service and Scanning Services, You must meet the following criteria and represent and warrant that You: (a) are 18 years of age or older; (b) are not currently restricted from the Service or Scanning Services, or not otherwise prohibited from registering with KiKo or having a KiKo account, (c) are not a competitor of KiKo or are not using the Service or Scanning Services for reasons that are in competition with KiKo; (d) have full power and authority to enter into these Terms of Service and doing so will not violate any other agreement to which You are a party; (e) will not violate any rights of KiKo, including Intellectual Property Rights such as copyright or trademark rights; (f) will not violate applicable Privacy Laws in relation to the information You provide KiKo; and (g) agree to provide at Your cost all equipment, software, internet, and data access necessary to use the Service.
5. Use of the Service
In using the Service or Scanning Services, You agree not to (a) upload to the Service or otherwise provide KiKo or any other user access to any individually identifiable information (except for Your individually identifiable information that You provide to create Your account) protected by Privacy Laws, including Protected Health Information (“PHI”), as defined at 45 C.F.R. § 160.103; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, copy, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms of Service; (c) use the Service to process data on behalf of any third party; (d) modify, adapt or hack the Service to falsely imply any sponsorship or association with KiKo, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (e) use the Service in any unlawful manner, including but not limited to violating Privacy Laws or any person’s privacy rights, infringing any person’s intellectual property rights, sending spam or otherwise duplicative or unsolicited messages in violation of applicable law; (f) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (g) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (h) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (i) attempt to use any method to gain unauthorized access to any paid features of the Service; (j) unless otherwise explicitly agreed to in writing by KiKo, use the Service or any content obtained from it to develop, as a component of, any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (k) use automated scripts to collect information from or otherwise interact with the Service; (l) try to use, or use the Service or Scanning Services in violation of these Terms of Service.
You are responsible for all information, data, text, messages or other materials transmitted by You via the Service or Scanning Services. You are responsible for complying with all applicable laws. You are responsible for maintaining the confidentiality of Your individually identifiable information, such as password and account information. You are fully responsible for any and all activities that occur under Your login or account. You agree and acknowledge that Your login may only be used by one (1) person, and that You will not share a single login among multiple people. You may create separate logins for as many people as Your plan allows. You agree that You will not sell, trade or otherwise transfer Your login or account to another party and that You will not, unless otherwise specifically agreed to in writing by KiKo, charge anyone for access to any portion of the Service, or any information therein. You agree that You are responsible for anything that happens through Your account until You cancel Your subscription (if applicable) and close Your account or prove that Your account security was compromised due to no fault of Your own.
You are responsible for the software, hardware and Internet service needed to access and use the Service. If You access and use the Service on Your smartphone, tablet or other mobile device (“Mobile Device”), You are solely responsible for any and all data and other fees related to use of the Service through Your Mobile Device.
6. Submissions and User-Generated Content
The Service contains interactive areas that allow You, in accordance with Your subscription order, to publicly post or share with certain users identified by You or otherwise noted in a written agreement(s) between You and KiKo information and/or other materials, such as slide images and associated information, which shall not include any individually identifiable information, (collectively, “User Generated Content”). KiKo does not monitor all of the User Generated Content posted or transmitted by users and third party information providers. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information from User Generated Content, are those of the third party and not of KiKo. KiKo does not represent or endorse the accuracy or reliability of any User Generated Content displayed, uploaded, or distributed on the Service by any third party. You acknowledge that any reliance upon any such third-party User Generated Content is at Your sole risk.
KiKo may, in its sole discretion, edit and/or remove any User Generated Content You submit to the Service. Without limiting the generality of the foregoing, KiKo may edit or remove any User Generated Content You submit to the Service that KiKo, in its sole discretion, deems abusive, defamatory, obscene, unlawful, or otherwise unacceptable or in violation of these Terms of Service, including any User Generated Content that contains any individually identifiable information (except for Your individually identifiable information that You provide to create Your account) or PHI, and You waive any moral rights You may have with respect to changes in the User Generated Content. KiKo is not responsible for maintaining Your posted User Generated Content and KiKo may, in KiKo’s sole discretion, delete or destroy it at any time with no liability or obligation to You.
You represent and warrant that You are entitled to and authorized to submit the User Generated Content, grant the foregoing rights and license to the information, and that the information is accurate, not confidential, and not in violation of any Privacy Laws or any contractual restrictions or other third-party rights.
For clarity, You may not use outside of the Service any User Generated Content uploaded or otherwise made available by other users outside without the express permission of the user that uploaded or otherwise made available such User Generated Content.
7. User-Generated Content Limitations
You agree not to post User Generated Content that: (a) contains vulgar, profane, abusive or hateful language, epithets or slurs, text or illustrations in poor taste, inflammatory attacks of a personal, racial or religious nature, or expressions of bigotry, racism, discrimination or hate; or (b) is defamatory, threatening, disparaging, inflammatory, false, misleading, deceptive, fraudulent, inaccurate, unfair, contains gross exaggeration or unsubstantiated claims, is unreasonably harmful or offensive to any individual or community, contains any actionable statement, or tends to mislead or reflect unfairly on any other person, business or entity; or (c) violates or infringes any agreement with a third party or a right of KiKo or any third party, including without limitation any privacy, trademark, copyright or other intellectual property right, or will otherwise cause injury to any third party, or (d) discriminates on the grounds of race, religion, national origin, gender, age, marital status, sexual orientation or disability, or refers to such matters in any manner prohibited by law; or (e) violates any municipal, state or federal law, rule, regulation or ordinance, or attempts to encourage evasion or violation thereof; or (f) unfairly interferes with any third party’s uninterrupted use and enjoyment of the Service; or (g) advertises, promotes or offers to trade any goods or services, except in areas specifically designated for such purpose; or (h) contains copyrighted or other proprietary material of any kind owned by a third party without the express permission of the owner of that material; or (i) includes or transmits viruses or other harmful, disruptive or destructive files; or (j) disrupts, interferes with, or otherwise harms or violates the security of the Service, system resources, accounts, passwords, servers or networks connected to or accessible through the Service or affiliated or linked sites; or (k) “flames” any individual or entity (e.g., sends repeated messages related to another user and/or makes derogatory or offensive comments about another individual), or repeats prior posting of the same message under multiple threads or subjects; (l) violates applicable Privacy Laws; or (m) otherwise violates these Terms of Service.
Without limiting the foregoing, You shall not submit, transfer, upload, or otherwise provide access to User Generated Content, or any other data or materials, through the Service or KiKo (including through the Scanning Services) that contain PHI or other individually identifiable information (except for Your individually identifiable information that You provide to create Your account) protected by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), or other state or federal privacy laws, and all related amendments and regulations thereof (collectively “Privacy Laws”). To the extent any User Generated Content or other data or materials that You intend to transfer, upload, or otherwise provide access to through the Service (including through the Scanning Services): (a) contain elements of PHI, such must be De-Identified by You in accordance with 45 C.F.R. § 164.514 prior to any transfer or upload to, or access through, the Service or KiKo (including through the Scanning Services); and (b) contain individually identifiable information protected by state or federal privacy laws other than HIPAA, such must be removed in compliance with applicable state or federal laws (except for Your individually identifiable information that You provide to create Your account). You acknowledge and agree that (a) KiKo is neither a Covered Entity nor a Business Associate or subcontractor of a Business Associate (as those terms are defined by HIPAA’s Privacy Rule) and, as such, has no duties under HIPAA, (b) the Service, including the Scanning Services, are not, and are not required to be, compliant with Privacy Laws, and (c) You are solely responsible for compliance with applicable Privacy Laws. In the event that You transfer, upload, or otherwise provide access to User Generated Content or other data or materials through the Service or KiKo (including through the Scanning Services) that contain PHI or other individually identifiable information protected by Privacy Laws (except for Your individually identifiable information that You provide to create Your account) (collectively, “Unauthorized Data”), (i) KiKo shall have the right to delete such Unauthorized Data, (ii) KiKo shall not be liable for any dissemination of Unauthorized Data to or by You or other users of the Service, and (iii) You shall indemnify and hold KiKo harmless for any direct or indirect losses, including government penalties, incurred by KiKo as a result of Your transfer, upload, collection, use or provision of Unauthorized Data to the Service or KiKo (including through the Scanning Services). You acknowledge and agree that KiKo is not responsible for monitoring the Service or Scanning Services for Unauthorized Data and that KiKo shall have no liability under these Terms of Service for Unauthorized Data received from You, in each case notwithstanding anything to the contrary herein. You further acknowledge and agree that KiKo shall at all times comply with Privacy Laws with regard to User Generated Content and other data and materials transferred, uploaded, or otherwise accessible through the Service (including through the Scanning Services), to the extent applicable. In particular, if KiKo becomes aware of any Unauthorized Data transferred or uploaded by You to the Service or KiKo (including through the Scanning Services), KiKo shall (i) take steps to mitigate any further disclosure by removing such Unauthorized Data from the Service or KiKo,, (ii) de-identify the User Generated Content so that it no longer contains Unauthorized Data, and (iii) to the extent practicable, securely return or destroy the Unauthorized Data; provided, however, KiKo has no duty to You or to any affected individuals in relation to such Unauthorized Data, and any failure by KiKo to take such steps shall not give rise to any claims of liability or damages against KiKo.
Any User Generated Content and other data and materials posted by You or others will be deemed not to be confidential or secret. You understand that Your personal and other information (e.g., username, e-mail address, phone number) that You post on the Service is generally accessible to, and may be collected and used by, other users and may result in unsolicited messages or other contact from others. To protect Your safety, please use Your best judgment when posting information. KiKo particularly discourages divulging personal phone numbers and addresses or other information that can be used to identify or locate You.
8. Data Privacy and Security
KiKo shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your data. These safeguards include encryption of Your data in transmission, except for external third party integrations that do not support encryption, which You may link to the Service at Your choice.
9. Cancellation and Termination
You may cancel Your account with KiKo at any time; however, unless KiKo is in breach of these Terms of Service and does not cure said breach within thirty (30) days of receiving written notice from You of an actual breach, identifying specifically the nature of the breach, You are not entitled to any refunds of fees paid (if any). KiKo may suspend or cancel Your account without notice or refund to You if You violate these Terms of Service. If Your account is cancelled, KiKo reserves the right to remove Your account information along with any account settings and Your User Generated Content from KiKo’s servers with NO liability or notice to You. Once Your account information, Your User Generated Content and account settings are removed, You will not be able to recover this data and You will lose access to all of Your content (except that content stored/published to third-party websites, which will remain on said third-party websites pursuant to those website’s Terms of Service and conditions). If You cancel Your account before the end of Your current paid-up subscription period (if applicable), Your cancellation will take effect immediately and You will not be charged again.
KiKo reserves the right to (a) modify, update, or discontinue, temporarily or permanently, the Service (or any part thereof) and (b) refuse any/all current and future use of the Service, suspend or terminate Your account or any part thereof (or Your use of the Service) if KiKo believes that You have violated these Terms of Service. KiKo will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of the Service, and may be referred to law enforcement authorities. KiKo shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.
10. Disclaimer of Warranties; Liability; Indemnification
YOU UNDERSTAND THAT OBJEKTYV, THE SCANNING SERVICES AND THE SERVICE DO NOT CONSTITUTE THE PRACTICE OF MEDICINE, DO NOT PROVIDE MEDICAL ADVICE, AND DO NOT TAKE THE PLACE OF A PHYSICIAN. IF YOU ARE A PHYSICIAN OR OTHER MEDICAL PROFESSIONAL: (A) YOU RETAIN RESPONSIBILITY FOR THE CONTENT OF ANY COMMUNICATIONS WITH YOUR PATIENTS AND FOR THE DIAGNOSIS AND TREATMENT OF YOUR PATIENTS; (B) YOU MUST MAKE YOUR OWN INDEPENDENT ASSESSMENT, USING YOUR OWN MEDICAL JUDGMENT, BEFORE SUGGESTING A DIAGNOSIS OR RECOMMENDING OR INSTITUTING A COURSE OF TREATMENT; AND (C) THE SERVICE AND SCANNING SERVICES SHOULD NOT IN ANY WAY BE SEEN AS A REPLACEMENT FOR CONSULTATION WITH COLLEAGUES OR OTHER SOURCES, OR AS A SUBSTITUTE FOR CONVENTIONAL TRAINING AND STUDY. THE SERVICE, SCANNING SERVICES, AND CONTENT ON THE SERVICE ARE PROVIDED FOR EDUCATIONAL PURPOSES ONLY, AND ARE INTENDED FOR USE BY MEDICAL PROFESSIONALS. THEY SHOULD NOT BE USED FOR SELF-DIAGNOSIS OR SELF-TREATMENT. THE SERVICE AND SCANNING SERVICES ARE NOT INTENDED AS, NOR SHOULD THEY BE, SUBSTITUTES FOR INDEPENDENT PROFESSIONAL MEDICAL JUDGMENT. ANY MESSAGING FEATURES PROVIDED THROUGH THE SERVICE ARE TO BE USED SOLELY TO OBTAIN FEEDBACK FOR EDUCATIONAL PURPOSES, AND COMMUNICATIONS SENT THROUGH SUCH FEATURES SHALL NOT CONSTITUTE THE PROVISION OF MEDICAL CARE.
THE SERVICE, SCANNING SERVICES, AND ANY OBJEKTYV DATA, OBJEKTYV MARKS, OR CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND OBJEKTYV EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, OBJEKTYV DOES NOT REPRESENT OR WARRANT THE ACCURACY OF ANY CONTENT FROM THIRD PARTIES, INCLUDING OTHER USERS, OR BASED ON THIRD PARTY-PROVIDED INFORMATION, SUCH AS USERS’ SELF-REPORTED SPECIALTIES OR QUALIFICATIONS, OR ANY LISTS OR COLLECTIONS BASED THEREON.
OBJEKTYV DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, THE SCANNING SERVICES, CONTENT OR MATERIALS FROM OR RELATED TO THE SERVICE OR SCANNING SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SERVICE, SCANNING SERVICES, SERVERS, OR ANY PLATFORM APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SERVICE AND SCANNING SERVICES, OR ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
YOU ACKNOWLEDGE THAT OBJEKTYV DOES NOT WARRANT THAT INFORMATION OR ADVICE OBTAINED BY YOU FROM OBJEKTYV OR THROUGH THE SERVICE OR SCANNING SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. OBJEKTYV DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN THE FUNCTIONING OF THE SERVICE OR SCANNING SERVICES, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN. FURTHERMORE, OBJEKTYV DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICE OR SCANNING SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, THE SATURATION OF THE INTERNET NETWORK, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICE OR SCANNING SERVICES OR THEIR USE, LOSS OF PERSONAL CONTENT ON THE SITE, LOST OR UNDELIVERABLE EMAIL, AND FOR ANY OTHER REASON. Under no circumstances will KiKo be responsible for any loss or damage, including, but not limited to personal injury or death, resulting from use of the Service, the Scanning Services, or any interactions between users of the Service, whether online or offline.
OBJEKTYV CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICE OR SCANNING SERVICES.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE AND SCANNING SERVICES IS AT YOUR SOLE RISK.
You agree to indemnify and hold KiKo and KiKo’s affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (a) Your use of the Service, Scanning Services, or any User Generated Content; (b) Your breach or violation of any of these Terms of Service; (c) Your User Generated Content or the slides You provide for Scanning Services; or (d) Your violation of the rights of any third party.
11. Limitation of Liability
NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL OBJEKTYV OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY YOU IN CONNECTION WITH THESE TERMS OF SERVICE OR THE SERVICE OR SCANNING SERVICES, REGARDLESS OF WHETHER OBJEKTYV HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OF SERVICE, OBJEKTYV’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS OF SERVICE CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OBJEKTYV’S SERVICE OR SCANNING SERVICES, SHALL BE LIMITED TO THE LESSER OF (A) ACTUAL DAMAGES INCURRED, OR (B) PAYMENTS MADE BY YOU FOR THE SERVICE AND SCANNING SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS OF SERVICE BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THESE TERMS OF SERVICE, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF OBJEKTYV WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS OF SERVICE.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE STATES, OBJEKTYV’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12. Entire Agreement;Assignment
These Terms of Service constitute the entire agreement between the parties with respect to the subject matter hereof, all previous understandings whether oral or written having been merged herein. No representations or warranties have been made other than those expressly set forth herein. Without limiting the foregoing, the parties have not relied on any oral statements that are not included in the Terms of Service. These Terms of Service (i) inure to the benefit of and will be binding upon KiKo’s and You and Your permitted successors and assigns, respectively and (ii) may be assigned by KiKo in whole or in part, but You may not assign these Terms of Service, or any part thereof, without the prior express written consent of KiKo.
If any provision of these Terms of Service, or the application thereof under certain circumstances, is held to be invalid or unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms of Service, or the application of such provision under other circumstances, shall remain in full force and effect
14. Export Control
Your use of the Service, including KiKo’s software, is subject to export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department’s Office of Foreign Assets Control. You shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any component or element of the Service to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that You are not prohibited from receiving U.S. origin products, including services or software.
15. Relationship; Indepdenent Contractor
Nothing herein contained shall be so construed as to constitute the parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the parties. Neither party shall have any power to obligate or bind the other party, except as specifically provided herein.
Sections 3 (Intellectual Property Rights), 9 (Cancellation and Termination), 10 (Disclaimer of Warranties; Liability; Indemnification), 11 (Limitation of Liability), 12 (Entire Agreement; Assignment), 13 (Severability), 14 (Export Control), 15 (Relationship; Independent Contractor), 16 (Survival), 17 (Governing Law), and 18 (No Waiver) will survive any termination of these Terms of Service.
17. Governing Law
The validity, interpretation and performance of these Terms of Service shall be governed by the laws of the Commonwealth of Pennsylvania without giving effect to the conflicts of laws provisions or principles thereof. Any legal suit, action or proceeding arising out of, or related to, these Terms of Services or the Service shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania in each case located in the City of Pittsburgh and County of Allegheny. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
18. No Waiver
KiKo’s failure to enforce at any time any provision of these Terms of Service does not constitute a waiver of that provision or of any other provision of these Terms of Service.
19. Copyright Policy
KiKo takes claims of copyright infringement seriously. KiKo will respond to notices of alleged copyright infringement that comply with applicable law. If You believe any materials accessible on or from the Service or Scanning Services infringe Your copyright, You may request removal of those materials (or access to them) from the Service or Scanning Services by submitting written notification to KiKo’s copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- Your physical or electronic signature.
- Identification of the copyrighted work You believe to have been infringed or, if the claim involves multiple works on the Service or Scanning Services, a representative list of such works.
- Identification of the material You believe to be infringing in a sufficiently precise manner to allow KiKo to locate that material.
- Adequate information by which KiKo can contact You (including Your name, postal address, telephone number, and, if available, email address).
- A statement that You have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that You are authorized to act on behalf of the copyright owner.
KiKo’s designated copyright agent to receive DMCA Notices is:
3945 Forbes Avenue, Box 517
Pittsburgh PA 15213
If You fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, Your DMCA Notice may not be effective. Please be aware that if You knowingly materially misrepresent that material or activity on the Service or Scanning Services is infringing Your copyright, You may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
If You believe that material You posted on the Service or Scanning Services was removed or access to it was disabled by mistake or misidentification, You may file a counter-notification with KiKo (a “Counter-Notice”) by submitting written notification to KiKo’s copyright agent designated above. Pursuant to the DMCA, the Counter-Notice must include substantially the following:
- Your physical or electronic signature.
- An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
- Adequate information by which KiKo can contact You (including Your name, postal address, telephone number, and, if available, email address).
- A statement under penalty of perjury by You that You have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
- A statement that You will consent to the jurisdiction of the Federal District Court for the judicial district in which Your address is located (or if You reside outside the United States for any judicial district in which the Service or Scanning Services may be found) and that You will accept service from the person (or an agent of that person) who provided the service with the complaint at issue.
The DMCA allows KiKo to restore the removed content if the party filing the original DMCA Notice does not file a court action against You within ten business days of receiving the copy of Your Counter-Notice.
Please be aware that if You knowingly materially misrepresent that material or activity on the Service or Scanning Services was removed or disabled by mistake or misidentification, You may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is the policy of KiKo to disable and/or terminate the accounts of users who are repeat infringers.
All feedback, comments, requests for technical support and other communications relating to the Service or Scanning Services should be directed to: firstname.lastname@example.org