kgb: Terms of Service
1. DEFINITIONS AND GENERAL PROVISIONS.
In these Terms of Service:
“Bundles” means a payment method for the Services where you pay in advance for a number of answers to questions;
“kgb Alerts Service” means kgb’s standard rate monthly subscription service designed to provide news and informational alerts;
“kgb Answers Service” means the kgb SMS and web question answering services operated by kgb on SMS or any other medium (for example, WAP) on, inter alia, short codes 542542, and the Websites;
“Services” means the kgb Answers Service and the kgb Alerts Service;
“Subscription” means a payment method for the Services where you pay in advance for the Services for a period of time; and
” Websites” means all the websites owned and/or operated by us, including www.kgb.com.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND KGB. BY USING THE SERVICES AND/OR THE WEBSITES, YOU SIGNIFY YOUR AGREEMENT WITH THE TERMS AND CONDITONS CONTAINED IN THIS AGREEMENT. ANY REFERENCE TO “KGB” IN THIS AGREEMENT INCLUDES ANY DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OWNERS, AGENTS, LICENSORS OR LICENSEES OF KGB. AS USED IN THIS AGREEMENT, THE WORDS “YOU”, “YOUR”, AND “USER” REFER TO YOU AS THE PARTY AGREEING TO THE TERMS AND CONDITIONS TO USE THE SERVICE. THE WORDS “WE”, “US”, “OUR”, AND “COMPANY” AND ANY OTHER OBVIOUS REFERENCE THEREOF REFER TO KGB.
You must be at least 18 years old to use the Websites and/or Services. In addition, you may not use the Websites or the Services or accept the Terms of Service if (i) you are not of legal age to form a binding contract, or (ii) you are prohibited by law from receiving or using the Services.
By accessing or using the Websites or the Services, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions set forth herein. If you access or use the Websites or the Services on behalf of a company, entity or organization, you represent and warrant that you are an authorized representative of such company, entity, or organization with the authority to bind it to this Agreement. You understand that adult content may be found on our site or be provided through our Websites or the Services and that you may avoid the use of both if you choose.
2. DESCRIPTION OF SERVICES
2.1 The carriers in the United States supporting the Services on 542542 include: Alltel, AT&T, Cellular One, Cellular South, Cincinnati Bell, Cricket, nTelos, Cellcom, Sprint-Nextel, Boost, T-Mobile, US Cellular, Verizon Wireless & Virgin Mobile. The price for the kgb Answers Service is $1.49 cents (message and data rates may apply). US pricing is subject to change. Premium charges will be billed on the customer’s wireless phone bill or deducted from the customer’s prepaid balance. A customer can stop participating and receiving messages (including the kgb Answers Service and the kgb Alerts Service) by sending STOP, QUIT, END, CANCEL, UNSUBSCRIBE, or STOP ALL to 542542. A customer can receive help about their issue by sending HELP to 542542 or calling toll free at 888knowkgb or email at email@example.com or firstname.lastname@example.org.
2.2 The Canadian carriers supporting the Services on 542542 include: Sasktel, Telus, Bell, Virgin, Rogers (including Fido) and MTS. The price for the kgb Answers Service is one Canadian dollar for all (Canadian) carriers – message and data rates may apply. Premium charges will be billed on the customer’s wireless phone bill or deducted from the customer’s prepaid balance. A customer can stop participating and receiving messages (including the kgb Answers Service and the kgb Alerts Service) by sending STOP or ARRET to this short code. A customer can receive help about their issue by sending HELP, INFO, or AIDE.
2.3 kgb Answers Subscription Service.
2.3.1 From time to time we may offer the Services to you on a Subscription basis or in pre-paid message Bundles or in other packages. To opt into the kgb Answers Service on a Subscription basis, text SUBJOIN2 to 542542. To cancel the Subscription, text STOP or NOSUB to 542542.
2.3.2. Pricing/Frequency: As of today, the kgbkgb Subscription service costs $9.99/month for 30 answers and $4.99/month pricing may apply in conjunction with certain offers detailed at point of purchase. This Subscription pricing is subject to change or termination without notice. If we should change or eliminate a Subscription price we will honor the terms of any previous purchase.
2.3.3 Carriers Supported: Alltel, Boost ($4.99 only), Cricket ($4.99 only), Cellcom, Cincinnati Bell, Cellular One, Cellular South, nTelos, Nextel, T-Mobile, Sprint, Verizon Wireless, Virgin.
2.4. kgb Alerts Subscription Service
2.4.1. To opt into the kgb Alerts Service, text ALERTS to 542542. To cancel the kgb Alerts Service, text STOP or NOALERTS to 542542.
2.4.2 Pricing/Frequency: As of today, there is no charge for the kgb Alerts Service, however, message and data rates may apply. Maximum 31 messages per month.
2.5 We may at any time refuse to provide the Services if, in our sole opinion, the questions are defamatory, blasphemous, racist, harassing or otherwise illegal or if the answer may, in our sole opinion, facilitate or promote behavior falling into any of these categories. If you continue to ask such questions, we may at our option terminate your Subscription or your Bundle by notice to you with immediate effect.
2.6 We may at our discretion refuse to answer questions where professional advice should be sought, including without limitation questions regarding medical, dental, veterinary, legal, tax, financial or accounting issues. Even if we do answer such questions, you are still advised to seek professional advice.
2.7 We will use our best efforts to provide the Services at all times in accordance with the Mobile Marketing Association ” MMA” guidelines.
2.8 The games we provide through the Websites or the Services, including, without limitation, the kgb Special Agents Challenge, are intended for your general amusement only. We may at our discretion use such games as a tool for establishing your suitability to provide services as a kgb Special Agent. As a result of your participation in such games, we may invite you to apply to be considered as a kgb Special Agent (subject to our standard terms and conditions of service). We do not guarantee to offer to train you or to offer you the opportunity to become a kgb Special Agent.
2.9 By using the 542542 services you agree to receive messages from us from time to time, by SMS. These messages include reminders, updates about offers on our products, product and features and enhancements, information about sweepstakes and contests, and other service-related information from time to time. Message and data rates may apply. You may unsubscribe from the Services and these messages at any time by sending STOP in response.
3. YOUR RESPONSIBILITIES
3.1 You acknowledge that you are responsible for use of the telephone which is registered in your name and accept all responsibility for any use of the Services from that telephone. Do not use any telephone to access the Services without the bill-payer’s permission.
3.2 You agree not to copy, reproduce, transmit, extract, adapt or distribute materials from the Websites, except for your own personal non-commercial use. All intellectual property rights in any material used by us in providing the Services (including, without limitation, the rademark, kgb) or any other trademarks or logos displayed by us on the Websites are expressly reserved to us or our licensors.
3.3 If you submit any question to the Services you agree to grant us a perpetual, unconditional, royalty-free, non-exclusive, transferable, sub-licensable license to use, reproduce, edit, translate, amend, adapt and distribute your question through the Services, including using it as the basis of the Fact of the Day or any other promotional activity, on the Websites or otherwise. If we do this, we will not include any information that might reasonably be expected to disclose your identity.
You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your content.
3.5 You understand that kgb does not guarantee any confidentiality with respect to your content. kgb has no obligation to store or provide you with copies of your content. We reserve the right not to answer any question, and may monitor your questions at any time.
3.5 You agree not to use the Websites and/or the Services to engage in any activity or for any purpose which is unlawful (including but not limited to asking questions which are defamatory on invasion of privacy, harassing, obscene, blasphemous or racist) or prohibited by this Agreement. You may not use the Websites and/or the Services in any manner which could damage, disable, overburden, or impair the Website and/or the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Websites and/or the Services. kgb, at its sole and absolute discretion, shall determine whether any information transmitted or received violates this provision. You may not use any material in connection with any site or other use that contains or is associated with information or content prohibited by this Section 3.4 and Section 3.5 below.
3.6 It is a condition of your use of the Websites and/or the Services that you do not:
3.6.1 restrict or inhibit any other user from using and enjoying the Websites and.or the Services;
3.6.2 post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including without limitation, any images or other material depicting Nudity (as herein defined);
3.6.3 post or transmit comments containing harassing or offensive language, including sexual references, sexual nicknames, racial slurs, hate propaganda, hate mongering, swearing, or rude or deliberately offensive comments, or engage in disruptive activities online, including excessive use of scripts, sound waves, scrolling (repeating the same message over and over), or use of viruses, bots, worms or trojan horses;
3.6.4 post or transmit any information, software or other material that is fraudulent or violates or infringes the rights of others, including material that violates privacy or publicity rights, or infringes copyright, trademark or other proprietary rights, without first obtaining permission from the owner or right holder;
3.6.5 post or transmit any information, software or other material that contains a virus or other harmful component;
3.6.6 post or transmit content that encourages or provides instructional activities about illegal activities, including but not limited to terrorism, hacking, cracking or phreaking;
3.6.7 post, transmit or in any way exploit any information, software or other material for commercial purposes or that contains advertising, “junk mail,” “spam,” or “chain letters”;
3.6.8 solicit other users to join, become members of, or contribute money to any online service or other organization, advocate or attempt to get users to join in legal or illegal schemes or plan or participate in scams involving other users;
3.6.9 impersonate any person or entity or falsely state or otherwise misrepresent your professional or other affiliation with any person or entity;
3.6.10 resell, redistribute, broadcast or transfer the information or use the information derived from the
Websites and/or the Services in a searchable, machine-readable database;
3.6.12 disguise a file type to thwart kgb’s detection processes;
3.6.13 post or transmit any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law;
3.6.14 submit to the live directory multiple web sites with different URLs that re-direct a user to one web page;
3.6.15 submit to live directory more than one URL for a single category;
3.6.16 update live directory listings with intent to distort or misrepresent them, including but not limited to changing titles of the entries, descriptions of the entries, URLs, or keywords, or
3.6.17 attempt to gain unauthorized access to other computer systems or networks connected to the Service.
For the purposes of this Agreement, “Nudity” shall include, without limitation, images depicting persons with unclothed genitalia or persons wearing transparent clothing over genitalia
3.7 You are solely responsible for your content. You assume all risks associated with use of your content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure by you of information in your content that makes you personally identifiable. You hereby affirm, represent, and warrant that you own, or have the necessary licenses, rights, consents, and permissions to use, and authorize kgb to use, your content as described herein. You may not imply that your content is in any way sponsored or endorsed by kgb.
3.8 Because you alone are responsible for your content (and not kgb), you may expose yourself to liability if, for example, your content violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is false, intentionally misleading, or defamatory; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
3.9 Communications posted through the Websites and/or the Services are sometimes provided by users such as you who are unaffiliated with kgb, and the user providing each such communication is solely responsible for the content thereof. This means that you and not kgb are entirely responsible for all communications that you upload, post email or otherwise transmit via the Websites and/ or the Services. In using the Websites and/or the Services or receiving e-mail messages from members through the Websites and/or the Services, you should not assume that such messages have been reviewed by kgb, that such communications contain correct information, or that the persons posting such communications have accurately identified themselves and/or their affiliation with any third party. You understand that by using the Websites and/or the Services, you may be exposed to communications that are offensive, indecent, or objectionable.
3.10 Under no circumstances will kgb be liable in any way for any communication including, but not limited to, liability for any errors or omissions in any communication, or for any loss or damage of any kind incurred as a result of the use of any communication posted, e-mailed, or otherwise transmitted via the Websites and/or the Services. Any communication by an agent or employee in response to a text inquiry for our ask us anything products is the opinion or statement of such individuals and is meant for entertainment or edification purposes only and you agree that we are not responsible for any such responses.
4.1 You shall promptly pay all fees and other charges (arising from your use of the Services in accordance with your arrangement with your telephone services provider or to us, where we have a direct billing or advanced payment arrangement with you for a Subscription or a Bundle, directly to us via the payment mechanisms provided on the Websites. The fees payable to your telephone services provider will include the standard or premium text rate fees charged by your telephone services provider and our fees.
4.2 If you pay us directly and any and any payment is more than 30 days overdue, we may by notice to you with immediate effect suspend the Services and/or terminate your Subscription until payment in full has been received.
4.3 If in our opinion it would be inappropriate for us to answer your question or we are unable to answer your question, we will try to text you back and tell you that there will be no charge by us for that question and or provide a credit or refund. Your telephone service provider may still charge you for sending text messages.
4.4 We reserve the right to change the pricing of the Services by publishing a new price on our Websites and or in our text message responses.
4.5 If you are on a plan to pay us directly we may use credit reference agencies to help us check your credit worthiness and make decisions about you for fraud protection. You agree that we may register information about how you conduct your account with us with any credit reference agency. Such information may also be passed to debt collection agencies for debt collection purposes.
5. CHANGES TO THE TERMS OF SERVICE OR THE WEBSITES.
The Terms of Service may be modified by kgb at any time. When these changes are made, kgb will notify you by making a new copy of the Terms of Service available on this page and will indicate at the bottom of this page the date these terms were last revised. Any such modification will be effective upon kgb’s posting of new Terms of Service. Your continued use of the Websites and/or the Services after any posted modification to the Terms of Service indicates your acceptance of the modification. Unless expressly stated otherwise by kgb, any new Services or content on the Websites implemented after your initial access to the Site shall be subject to the Terms of Service.
6. PROPRIETARY RIGHTS IN KGB CONTENT; LIMITED LICENSE.
All content on the Websites and available through the Services, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the “kgb Content”), are the proprietary property of kgb, its users or its licensors with all rights reserved. No kgb Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without kgb’s prior written permission, except that the foregoing does not apply to your own user content that you legally post on the Websites. Provided that you are eligible for use of the Websites, you are granted a limited license to access and use the Websites and the kgb Content and to download or print a copy of any portion of the kgb Content to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Except for your own user content, you may not upload or republish kgb Content on any Internet, Intranet or Extranet Site or incorporate the information in any other database or compilation, and any other use of the kgb Content is strictly prohibited. Such license is subject to these Terms of Service and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Services and/or the Websites or the kgb Content other than as specifically authorized herein, without the prior written permission of kgb, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Service shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause.
7. COPYRIGHT DISPUTE POLICY.
kgb has adopted the following policies and procedures toward copyright infringement in accordance with Title 17, United States Code, Section 512(c), which is part of the Digital Millennium Copyright Act (“DMCA”). The address of kgb’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is provided at the bottom of this section. It is kgb’s policy to (i) respond to notices of alleged copyright infringement that comply with the DMCA; and (ii) terminate the accounts of those who kgb determines to be “repeat infringers”.
7.1 Procedure for Reporting Copyright Infringements.
If you are a copyright owner or agent thereof, and believe that your copyright is being infringed in connection with the Site, please send a written notification to the Designated Agent detailing the alleged infringement. Your written notification must include:
1. Identification of the copyrighted work that you claim has been infringed;
2. Identification of the content on the Site that allegedly infringes upon the copyrighted work at issue, and information reasonably sufficient to permit kgb to locate such content on the Site;
3. A statement by you that you have a good faith belief that the use of the content identified in your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;
4. A statement by you that you attest, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
5. Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
Please note that kgb may, at its sole discretion, send a copy of such notices to third-parties for publication. Please note that you may be subject to liability under Section 512(f) of the DMCA if you materially misrepresent that content on the Site infringes your copyright.
7.2 Procedure to Supply a Counter-Notice to the Designated Agent.
If you believe that content has been mistakenly removed from the Site pursuant to this DMCA policy, you may send a written counter-notice to the Designated Agent including the following:
1. Identification of the content that was removed, and the location on the Site where it would have been found prior to its removal;
2. A statement under penalty of perjury that you have a good faith belief that the content was removed as a result of a mistake or misidentification;
3. A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is located outside the United States, for any judicial district in which kgb is located, and that you will accept service of process from the person who provided notification under 512(c)(1)(C) or an agent of such person; and
4. Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
7.3 Address for Designated Agent.
Please contact kgb’s Designated Agent at the following address:
Attention: Copyright Agent
655 Madison Avenue, Third Floor
New York, NY 10065
Phone: (212) 909-8282
Fax: (212) 909-8283
Email to: email@example.com
The Designated Agent should only be contacted in connection with the issues raised in this Section. The Designated Agent will not respond to other inquiries.
9. PERSONAL SAFETY
When using the Websites and/or the Services, please be certain that anything you say does not compromise your personal safety. Do no provide your name, phone number postal or e-mail address, your password, or any other personally identifying information to people you do not know. Do not continue any conversation online that makes you feel uncomfortable.
10. THIRD-PARTY WEBSITES AND CONTENT
The Websites contain (or you may be sent through the Websites or the Services) links to other websites (“Third Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Websites and/or the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by us. If you decide to leave the Websites and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Websites or relating to any applications you use or install from the Websites.
11.1 kgb reserves the right (but is under no obligation) to terminate or suspend your account or your ability to use the Websites and/or the Services, in whole or in part, at kgb’s sole discretion, for any or no reason, and without notice or liability of any kind. Termination of your account may include: (i) removal of access to all offerings within the Websites and/or the Services; (ii) deletion of your password and all related information, files and materials associated with or inside your account (or any part thereof), including your content; and (iii) barring of further use of the Websites and/or the Services. You agree that kgb shall not be liable to you or any third party for any termination of your account, or access to the Websites, theServices and related materials, including your content.
11.2 You may terminate the Terms of Service at any time by closing your account or discontinuing your use of any and all parts of the Websites or by opting out of the Services.
11.3 The Terms of Service necessary to protect kgb will survive termination.
By submitting ideas, suggestions, documents and/or proposals (“Feedback”) to kgb through its suggestion, feedback, forum or similar web pages, you acknowledge and agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) kgb is not under any obligation of confidentiality, express or implied, with respect to the Feedback, (iii) kgb, in its discretion, shall be entitled to use and disclose such Feedback for any purpose, in any way, in any media worldwide, (iv) kgb may have something similar to the Feedback already under consideration or in development, (v) the Feedback automatically becomes kgb’s property without any obligation to you, and (vi) you are not entitled to any compensation or reimbursement of any kind from kgb under any circumstances.
13.1. THE SERVICES, WEBSITES AND ALL SITE CONTENT IS MADE AVAILABLE TO YOU ON AN “AS IS” BASIS. YOU ACCEPT AND ACKNOWLEDGE THAT ADULT CONTENT CAN BE FOUND ON THE WEBSITES AND THROUGH OUR SERVICES. KGB MAKES NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO (1) THE OPERATION AND FUNCTIONALITY OF THE WEBSITES, (2) THE ACCURACY, INTEGRITY, COMPLETENESS, QUALITY, LEGALITY, USEFULNESS, SAFETY, AND IP RIGHTS OF ANY OF THE CONTENT ON THE WEBSITES, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF BUSINESS REVIEWS AND BUSINESS INFORMATION LISTED ON THE WEBSITES, AND (3) THE PRODUCTS AND SERVICES ASSOCIATED WITH THE WEBSITES OR CONTENT ON THE WEBSITES, INCLUDING BUT NOT LIMITED TO THE PRODUCTS AND SERVICES SOLD BY BUSINESSES LISTED ON THE WEBSITES. KGB FURTHER DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM KGB OR THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION, OR CONDITION NOT EXPRESSLY STATED HEREIN.
13.2. KGB SPECIFICALLY DISCLAIMS ALL LIABILITY RELATING TO YOUR USE OF THE WEBSITES, SERVICES, AND CONTENT ON THE WEBSITES. ACCESS TO, AND USE OF, THE WEBSITES, SERVICES, AND CONTENT ON THE WEBSITES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. KGB ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM THE WEBSITES OR IN CONNECTION WITH THE SERVICES.
13.3 YOUR COMMUNICATIONS OR DEALINGS WITH ANY OF THE BUSINESSES, ADVERTISERS, OR USERS ON THE WEBSITES OR THROUGH YOUR USE OF THE SERVICES, ARE SOLELY BETWEEN YOU AND SUCH BUSINESSES, ADVERTISERS, AND USERS. KGB IS NOT RESPONSIBLE, AND DISCLAIMS ALL LIABILITY, FOR ANY LOSS OR DAMAGE ARISING OUT OF ANY SUCH COMMUNICATIONS OR DEALINGS. KGB RESERVES THE RIGHT (BUT HAS NO OBLIGATION) TO MONITOR DISPUTES BETWEEN YOU AND SUCH BUSINESSES, ADVERTISERS, AND USERS.
13.4. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS, OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU RESIDE IN SUCH A JURISDICTION, THE ABOVE LIMITATIONS SHALL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
14. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT KGB SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (EVEN IF KGB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING IN CONNECTION WITH THE SERVICES, THE WEBSITES OR ANY LINKED SITE OR USE THEREOF OR INABILITY TO USE BY ANY PARTY, OR IN CONNECTION WITH ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, VIRUS, NETWORK OR SYSTEM FAILURE OR RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE WEBSITES AND/OR THE SERVICES; (ii) THE TIMELINESS OR ACCURACY OF SERVICE; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITES AND/OR THE SERVICES; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITES AND/OR THE SERVICES; OR (vi) ANY OTHER MATTER RELATING TO THE WEBSITES AND/OR THE SERVICES.
In the event that a court should hold that the limitations of liabilities or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of your remedies under this Agreement fail of their essential purpose, you expressly agree that under no circumstances shall kgb’s total liability to you or any party claiming by, through or under you for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence or strict liability, in the aggregate, exceed $500 (U.S.). If your Account Login Information is improperly disclosed to a third party without your consent, and this disclosure is the direct result of kgb’s negligence or gross negligence in operating the Service, then you and kgb agree that kgb’s liability for your direct and actual damages in this circumstance shall not, in the aggregate, exceed $500 (U.S.).
You agree to indemnify and hold kgb, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your access to or use of the Websites and/or the Services, (ii) your violation of the Terms of Service, or (iii) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. kgb 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. You agree not to settle any matter without the prior written consent of kgb. kgb will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
16. JURISDICTION; GOVERNING LAW
This Agreement shall be deemed and treated as though it were entered into, executed, and performed solely in New York and the laws of the State of New York, without regard for conflict of law rules thereof, apply to all matters relating to use of the Service and shall without limitation govern this Agreement. You agree by use of the service to hereby submit to jurisdiction of the courts of New York with appropriate subject matter jurisdiction and that any conflict brought or filed with respect to use of the Service or concerning the this Agreement shall be brought in a court of competent jurisdiction in New York. In any legal action relating to enforcement or breach of this Agreement, the prevailing party shall be entitled to recovery of costs, fees and expenses of any action, including, without limitation, attorney fees and accounting fees.
This Agreement shall be interpreted according to its fair meaning and shall not be interpreted strictly against or for either party. This Agreement constitutes the entire agreement with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals, whether, electronic, oral or written, between kgb and the user of the Service. Headings used herein are for convenience only and shall not limit, control or add to the meaning of any term, provision or condition.
LAST REVISED: November 15, 2010