Disclaimer of Warranties
NEITHER KINETICA MEDIA, LLC. NOR ITS
AFFILIATES, NOR ANY OF THEIR OFFICERS, DIRECTORS, OR EMPLOYEES, AGENTS,
LICENSORS, OR THE LIKE, WARRANT THAT KINETICA MEDIA, LLC. SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE, OR THAT THE CONTENT IS FREE FROM VIRUSES OR
OTHER HARMFUL COMPONENTS; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS
THAT MAY BE OBTAINED FROM THE USE OF KINETICA MEDIA, LLC.. KINETICA MEDIA,
LLC. PROVIDES SERVICE(S) ON AN "AS-IS" AND "AS AVAILABLE" BASIS. KINETICA
MEDIA, LLC. MAKES NO REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS
OR IMPLIED, AS TO THE OPERATION OF KINETICA SERVICE(S) TO THE FULL EXTENT
PERMISSIBLE BY APPLICABLE LAW, KINETICA MEDIA, LLC. DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO
ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY KINETICA MEDIA, LLC. NOR ITS
AFFILIATES, SUBSIDIARIES NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, PROVIDERS, CONTRACTORS OR THE LIKE, SHALL CREATE A WARRANTY; NOR
SHALL ANY USER RELY ON ANY SUCH INFORMATION OR ADVICE.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL KINETICA MEDIA, LLC. OR ANY OTHER PARTY INVOLVED IN
CREATING, PRODUCING OR DISTRIBUTING KINETICA MEDIA, LLC. SERVICES BE LIABLE FOR
ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
THAT RESULT FROM THE USE, OR THE INABILITY TO USE, THE LOYAL EMAIL SERVICE.
THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT,
TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF KINETICA MEDIA,
LLC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS EXCLUSION AND
LIMITATION OF LIABILITY SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, RELIANCE BY
A USER ON ANY INFORMATION OBTAINED FROM KINETICA MEDIA, LLC., THAT RESULTS IN
DAMAGE TO THE USER'S COMPUTER SYSTEM OR WEB SERVICE INCLUDING: DELETION OF
FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION,
OR ANY FAILURE OF PERFORMANCE. THIS EXCLUSION AND LIMITATION OF LIABILITY
INCLUDES ANY AND ALL DAMAGE THAT MAY OCCUR TO USER'S COMPUTER SYSTEM, WEB
SERVICE OR SERVER AS A RESULT OF THE SERVICES PROVIDED BY KINETICA MEDIA, LLC.
TO THE USER. IN NO EVENT WILL KINETICA MEDIA, LLC. TOTAL LIABILITY UNDER THIS
AGREEMENT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY KINETICA MEDIA, LLC. FROM THE
USER, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL DAMAGES, KINETICA MEDIA, LLC. LIABILITY IN SUCH JURISDICTIONS
SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Indemnification
User shall defend, indemnify, and forever hold Kinetica Media, LLC., its
owners, shareholders, partners, members, affiliates, subsidiaries, officers,
directors, employees, agents, providers, contractors and their heirs,
successors and assigns, free and harmless from and against any and all actions,
claims, liabilities, assertion of liabilities, losses, costs and expenses
whatsoever, including, but not limited to, attorney fees, that any such parties
may incur or be exposed to by reason of User's use or misuse of this service
and the services provided herein. This indemnification shall extend to and
apply to any and all such actions, claims, assertion of liabilities, losses,
costs and expenses whatsoever, including, but not limited to, attorney fees,
whether brought against Kinetica Media, LLC. by User or third parties due
directly or indirectly to the User's use or misuse of Kinetica Media Services
provided herein.
Choice of Law and Forum
Kinetica Media, LLC. in the State of Ohio. As such, the laws of the State of
Ohio will govern this Terms and Conditions of Use Agreement, without giving
effect to any principles of conflicts of law. User hereby irrevocably and
unconditionally consents to the exclusive jurisdiction of the courts of the
State of Ohio and the United States of America located in the State of Ohio for
any litigation arising out of, or relating to, use of Kinetica Media, LLC.
Services (and agrees not to commence any litigation relating thereto except in
such courts), waives any objection to the laying of venue of any such
litigation in the Ohio courts, and agrees not to plead or claim in any Ohio
court that such litigation brought therein has been brought in an inconvenient
forum.
Severability
The provisions of these Terms and Conditions of Use are intended to be
severable. If any part of these Terms and Conditions of Use is held invalid or
unenforceable, that portion shall be construed in a manner consistent with
applicable law to reflect, as nearly as possible, the original intentions of
the parties, and the remaining portions shall remain in full force and effect.
Unless specified herein, this agreement constitutes the entire agreement
between Users and Kinetica Media, LLC. with respect to the terms and conditions
of service. This agreement supersedes all prior and contemporaneous
communications and proposals (whether written, oral or electronic) between User
and Kinetica Media, LLC.
Termination
Either party may terminate the
Agreement if the other party fails to perform any of its obligations in
any material respect, and such failure continues for a period of thirty
(30) days after receipt by the breaching party of written notice from the
non-breaching party specifying such default. Either party may terminate
this Agreement in the event that the other party ceases to do business,
undergoes a bankruptcy or insolvency proceeding, or an assignment for the
benefit of creditors. Upon the expiration or termination of the Agreement
for any reason, the parties will return all confidential information of
the other party in their possession. All payment obligations of Customer
shall survive expiration or termination of the Agreement, as shall the
parties' rights and obligations. Kinetica Media, LLC reserves the right,
in its sole discretion, to terminate User's access to all or part of this
service, and to terminate User's account upon giving Notice to User.
Notice will be given via email. You agree by using this Service, not to
reproduce, duplicate, copy, sell, resell, or exploit for any commercial
purpose other than as provided herein, any portion of Kinetica Media,
LLC , use of the Services, or access to the Services.
Term and Level of Service
The term shall commence
on the Effective Date indicated in Customer's signed service agreement
contract and shall continue for the period indicated in the agreement. The
term shall automatically renew for the same period of time as the initial
term unless, within 30 days of the end of any term, either party notifies
the other of its decision to terminate the Agreement.
Assignment
This Terms and Conditions of Use
Agreement is not assignable or transferable by Customer/User without the
prior written consent of Kinetica Media, LLC.
Announcements and Design
Customer agrees that
Kinetica Media, LLC may list User as a customer of Kinetica Media,
LLC. in press materials (online/offline), and may also display Customer's
corporate logo or any pictures, images, copy, verbiage, and "look and
feel" from Customer's website to brand Kinetica Media, LLC. Services.
Kinetica Media Copyright Information
The "Kinetica Media name, logo, network, Kinetica Media, LLC. Services - Loyal-Email"
are trademarks of Kinetica Media, LLC. Used with permission. All rights
reserved. ©2002-2004.
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