TDisclaimer 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 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 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 CUSTOMER 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 CUSTOMER ON ANY INFORMATION OBTAINED FROM KINETICA MEDIA, LLC., THAT RESULTS IN DAMAGE TO THE CUSTOMER’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 CUSTOMER’S COMPUTER SYSTEM, WEB SERVICE OR SERVER AS A RESULT OF THE SERVICES PROVIDED BY KINETICA MEDIA, LLC. TO THE CUSTOMER. IN NO EVENT WILL KINETICA MEDIA, LLC. TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY KINETICA MEDIA, LLC. FROM THE CUSTOMER, 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.
CUSTOMER 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 CUSTOMER’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 CUSTOMER or third parties due directly or indirectly to the CUSTOMER’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. CUSTOMER 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.
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 CUSTOMER 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 CUSTOMER and Kinetica Media, LLC.
Either party may terminate the Annual Loyal Email Service Agreement if the other party fails to perform any of its obligations in any material respect, and such failure continues.
Customer may terminate the Annual Loyal Email Service Agreement (in writing) 30 days before the Customers initial term will expire, by stating that Customer no longer wishes to renew the Annual Loyal Email Service Agreement for another year under the same terms. Customer may terminate initial Agreement in the event that the CUSTOMER undergoes a bankruptcy or insolvency proceeding, or an assignment for the benefit of creditors which must be submitted to Kinetica Media, LLC. in writing.
Upon the expiration or termination of the Agreement, the parties will return all confidential information of the other party in their possession (If requested in writing). 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 CUSTOMER’s access to all or part of this service, and to terminate CUSTOMER’s account upon giving Notice to CUSTOMER. Notice will be given via email.
You agree by using this Loyal Email, 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 Loyal Email, or access any other Kinetica Media, LLC Service.
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 (in writing) the other of its decision to terminate the Agreement.
This Terms and Conditions of Use Agreement is not assignable or transferable by Customer without the prior written consent of Kinetica Media, LLC.
Announcements and Design
Customer agrees that Kinetica Media, LLC may list CUSTOMER 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.
The “Kinetica Media” name, logo, network, Kinetica Media, LLC. Services -“Loyal-Email” are trademarks of Kinetica Media, LLC. Used with permission. © 2002-2017, Kinetica Media, LLC. All rights reserved.