Kontera Website Terms of Service

Introduction. Your Agreement to these Terms of Service.

Welcome to the Kontera Technologies, Inc. (“Kontera”) web site at www.kontera.com (the “Site”).  The following Terms of Service for the Site is a legal contract between you, either an individual subscriber, customer, member, publisher, advertiser, or user of at least 18 years of age (“You”), and Kontera regarding your use of the Site.  Visitors and users of the Site are referred to individually as “User” and collectively as “Users”.

The services hereunder are offered by Kontera, located at: 1940 Bryant St., First Floor, San Francisco, CA 94110, U.S.A. and email: support@kontera.com.

PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE.  BY ACCESSING, BROWSING, OR USING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”).

  1. Eligibility. THE SITE IS NOT AVAILABLE TO PERSONS UNDER THE AGE OF 18 OR TO ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE BY KONTERA.  By using the Site, You represent that You are at least 18 years of age and have not been previously suspended or removed from the Site by Kontera.
  2. Privacy Notice.  Your privacy is important to Kontera.  Kontera’s Privacy Policy is hereby incorporated into these Terms by reference.  Please read this notice carefully for information relating to Kontera’s collection, use, and disclosure of your personal information.
  3. Modification of these Terms.  Kontera reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time.  Please check these Terms periodically for changes.  Your continued use of the Site after the posting of changes constitutes your binding acceptance of such changes.  For any material changes to these Terms, such amended terms will automatically be effective thirty days after they are initially posted on the Site.
  4. Digital Millennium Copyright Act.  It is Kontera’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act .  For more information, please go to Kontera’s Copyright Policy .  Kontera will promptly terminate your use of Kontera’s services if you are determined by Kontera to be a “repeat infringer.”  A repeat infringer is a User who has been notified by Kontera of infringing activity violations more than twice.
  5. Prohibited Conduct.

5.1 Use the Site for any purposes other than to access information and services offered by Kontera;

5.2 Rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section ‎9, below);

5.3 Impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Site accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Site, or perform any other similar fraudulent activity;

5.4 Delete the copyright or other proprietary rights on the Site;

5.5 Use the Site for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;

5.6 Use the Site if You are under the age of 18 years old;

5.7 Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, features that prevent or restrict use or copying of any content accessible through the Site, or features that enforce limitations on the use of the Site;

5.8 Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

5.9 Modify, adapt, translate or create derivative works based upon the Site or any part thereof, except and only to the extent foregoing restriction is expressly prohibited by applicable law; or

5.10 Intentionally interfere with or damage operation of the Site or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.

Publisher and Advertiser Accounts. When You obtain an account pursuant to a separate partnership agreement, including an In Text Service Agreement, or otherwise use the Site to upload and/or download or purchase content or any products, services, or information from Kontera, You may be asked to provide a password.  You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and You agree to accept responsibility for all activities that occur under your account or password.  You agree that the information You provide to Kontera on registration and at all other times will be true, accurate, current, and complete.  You also agree that You will ensure that this information is kept accurate and up-to-date at all times.  If You have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then You agree to immediately notify Kontera.  You may be liable for the losses incurred by Kontera or others due to any unauthorized use of your Site account.

Third-Party Sites, Products and Services; Links.  The Site may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”).  Kontera does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites.  In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site are solely between You and such advertiser.  ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK.

Termination; Terms of Service Violations.

8.1 Kontera. You agree that Kontera, in its sole discretion, for any or no reason, and without penalty, may terminate your use of the Site and remove and discard all or any part of your User profile at any time.  Kontera may also in its sole discretion and at any time discontinue providing access to the Site, or any part thereof, with or without notice.  You agree that any termination of your access to the Site may be effected without prior notice, and You agree that Kontera will not be liable to You or any third party for any such termination.  Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.  These remedies are in addition to any other remedies Kontera may have at law or in equity.  As discussed herein, Kontera does not permit copyright infringing activities on the Site, and will terminate access to the Site, and remove any other content submitted by any Users who are found to be repeat infringers.

8.2 You. Your only remedy with respect to any dissatisfaction with (i) the Site, (ii) any term of these Terms of Service, (iii) any policy or practice of Kontera in operating the Site, or (iv) any content or information transmitted through the Site, is to discontinuing use of any and all parts of the Site.
Ownership; Proprietary Rights.  The Site is owned and operated by Kontera.  The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Site provided by Kontera (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.  All Materials contained on the Site are the property of Kontera or its subsidiaries or affiliated companies and/or third-party licensors.  All trademarks, service marks, and trade names are proprietary to Kontera or its affiliates and/or third-party licensors.  Except as expressly authorized by Kontera, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Kontera reserves all rights not expressly granted in this Terms of Service.

Indemnification.  You agree to indemnify, save, and hold Kontera, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Site, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein.  Kontera reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Kontera, and You agree to cooperate with Kontera’s defense of these claims.  Kontera will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
Disclaimers; No Warranties.

11.1 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KONTERA, AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KONTERA OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION ‎11 THE TERM KONTERA INCLUDES KONTERA’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.

11.2 “As is” and “As available” and “With All Faults”. YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. 

11.3 Content. KONTERA, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SITE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. 

11.4 Accuracy. KONTERA, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. 

11.5 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SITE OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPRERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

Limitation of Liability and Damages.

12.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL KONTERA OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE SITE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH KONTERA, EVEN IF KONTERA OR AN KONTERA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.  IN SUCH CASES, KONTERA’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

12.2 Limitation of Damages. IN NO EVENT WILL KONTERA OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE OR YOUR INTERACTION WITH OTHER SITE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

12.3 Reference Sites. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN KONTERA AND RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY REFERENCE SITES.

12.4 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT KONTERA HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND KONTERA, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND KONTERA. KONTERA WOULD NOT BE ABLE TO PROVIDE THE SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

12.5 Limitations by Applicable Law. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.  YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. 

12.6 Consumer End Users (Outside of the USA). This Section ‎12.6 applies only to Users residing and using the Site outside of the United States. The limitations or exclusions of warranties and liability contained in this Terms of Service do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods for solely personal use otherwise than in the course of business outside of the U.S.A. The limitations or exclusions of warranties, remedies or liability contained in this Terms of Service apply to You to only the extent such limitations or exclusions are permitted under the laws of the jurisdiction where You are located.

Miscellaneous.

13.1 Notice. Kontera may provide You with notices, including those regarding changes to these Terms of Service, by email, regular mail or postings on the Site.  Notice will be deemed given twenty-four hours after email is sent, unless Kontera is notified that the email address is invalid.  Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the Site.  In such case, notice will be deemed given three days after the date of mailing.  Notice posted on the Site is deemed given 30 days following the initial posting.

13.2 Waiver. The failure of Kontera to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Kontera.

13.3 Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.

13.4 Arbitration. For Users residing outside the United States of America and using the Site in another territory, Section ‎13.5 (Jurisdiction) does not apply and this Section ‎13.4 applies to you. Any dispute or claim arising out of or in connection with these Terms or your use of the Kontera Services shall be finally settled by binding arbitration in San Francisco, California under the Rules of Arbitration of the International Chamber of Commerce by three arbitrator(s) appointed in accordance with said rules; judgment on the award rendered by these arbitrators may be entered in any court having jurisdiction thereof. The parties agree that this arbitration is the exclusive remedy for any disputes.

13.5 Jurisdiction. For Users residing inside the United States of America and using the Site in the United States, Section ‎13.4 (Arbitration) does not apply and this Section ‎13.5 applies to You. You agree that any action at law or in equity arising out of or relating to these Terms or Kontera will be filed only in the state or federal courts in and for San Francisco County, California, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action. 

13.6 Severability. If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

13.7 Assignment. These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Kontera without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.

13.8 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections ‎4 through ‎13.

13.9 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

13.10 Entire Agreement. These Terms, the Privacy Policy and Guidelines constitute the entire agreement between You and Kontera relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms, Privacy Policy or Guidelines made by Kontera as set forth in Section ‎3 above.

13.11 Claims. YOU AND KONTERA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.  OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

13.12 Disclosures. The services hereunder are offered by Kontera, Inc., 1940 Bryant St., First Floor, San Francisco, CA 94110, U.S.A. and email: support@kontera.com. If You are a California resident, You may have this same information emailed to You by sending a letter to the foregoing address with your email address and a request for this information.