This Agreement provides that all disputes between you and Kismia will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 21 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Kismia.
a. Electronic Agreement. This Agreement is a binding agreement between you and the Company. You accept this Agreement each time you access the Service. If you do not accept this Agreement, then do not use the Service. This Agreement may be modified by Us from time to time, such modifications to be effective upon posting by Us on the Service; provided that we will endeavor to give you prior notice of any material modifications. Notwithstanding the foregoing, no revisions to this Agreement will apply to any dispute between you and us that arose prior to the date of such revision. By accessing the Service, you accept this Agreement and agree to all of the terms, conditions and notices contained or referenced herein.
b. You acknowledge and agree that users of Kismia may be part of an online community that includes other websites owned by the Company or its affiliates (“Affiliate Websites”). Therefore, with your consent, we may use your profile on the Websites to populate registration and profile information on the Affiliate Websites. By using the Service, you consent to receiving electronic communications initiated from Us regarding your account, security, privacy, and administrative issues. If we learn of a security system’s breach, then we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at email@example.com.
a. Age Restrictions. No part of the Service is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By using the Service, you represent and warrant you are at least 18 years of age. If you are under 18 years of age, then you are not permitted to use the Service.
b. Membership in the Service is void where prohibited by law. By using the Service, 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 of this Agreement. If you become a Member, you represent and warrant that you have never been convicted of a felony and that you are not required to register as a sex offender with any government entity. If any such representations or warranties turn out to be false or misleading in any way, your membership will be terminated immediately without refund of any unused or used funds in your account.
3. MEMBERSHIP AND SUBSCRIPTION; PRICING.
a. Accounts. You may become a Member of the Service at no cost. As a Member, you will have the ability to participate in some, but not all, of the features and services available within the Service. If you register with the Service and create a profile, then you are a “Member.”
b. To become a Member, you must create an account by providing a valid email address, username, password and other information as prompted by the registration form or as required by applicable law. We may also allow you to register by using your social network credentials. When registering, you are prohibited from selecting or using as a username: (i) a name of another person with the intent to impersonate that person; (ii) a name that is subject to any rights of a person other than you without appropriate authorization; or (iii) a name that is otherwise offensive, vulgar, or obscene. You represent and warrant that the information you provide to us upon registration and at all other times will be true, accurate, current, and complete. We reserve the right to reject any username or to terminate your username and give such username to another user of the Service in our sole discretion, and without any liability to you. You also represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
c. Premium Features. Certain features of the Service are only available to paying Members (“Premium Features”). In some cases, we may offer Premium Features for a flat, one-time fee. In those cases, you agree to pay the fee stated on the Service using your Billing Account (as defined below). In other instances, you may subscribe for regular access to certain features of the Service. In either case, you are a “Premium Member.”
d. Billing Accounts. If you are a Premium Member, we bill you through an online account (your “Billing Account”). Depending on the payment method, we will use commercially reasonable efforts to credit any payment to your account within 30 seconds. You agree to pay us all charges at the prices you agreed to for any use of the Service by you, and you authorize us to charge your chosen payment provider (your “Payment Method”) for the Service. We may allow you to pay in installments. You agree to make payment using that selected Payment Method. Kismia may correct any billing errors or mistakes (e.g., charging you for an incorrect amount) that it makes even if it has already requested or received payment. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, we may in our discretion terminate your account immediately. If we successfully dispute the reversal, and the reversed funds are returned to us, you are not entitled to a refund or to have your account or subscription reinstated. If you are a subscriber, then after your initial subscription commitment period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing. By subscribing, you authorize Kismia to charge your Payment Method now and again at the beginning of any subsequent subscription period. You also authorize Kismia to charge you for any sales or similar taxes that may be imposed on your subscription payments. Upon the renewal of your subscription, if Kismia does not receive payment from your Payment Method provider, (i) you agree to pay all amounts due on your Billing Account upon demand, and/or (ii) you agree that Kismia may either terminate or suspend your subscription and continue to attempt to charge your Payment Method provider until payment is received (upon receipt of payment, your account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received). Please be aware that when you subscribe to any package, including the trial period, you will become liable for automatic renewal billing at the full subscription price.
e. Auto-Renewal. YOU MUST PAY FOR YOUR SUBSCRIPTION TO THE SERVICE PRIOR TO USING THE SERVICE. BY PURCHASING A SUBSCRIPTION TO THE SERVICE, YOU AGREE THAT, ONCE YOUR SUBSCRIPTION EXPIRES, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE PERIODS UNLESS YOU CANCEL YOUR SUBSCRIPTION AS FURTHER DESCRIBED BELOW. YOU AUTHORIZE US TO CHARGE THE PAYMENT METHOD THAT OUR SERVICE PROVIDER HAS ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. YOU WILL BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT SUBSCRIPTION PRICE PLUS ANY APPLICABLE TAXES. WE WILL PROCESS YOUR PAYMENTS FOR ANY RENEWAL SUBSCRIPTION USING THE SAME BILLING CYCLE AS YOUR CURRENT SUBSCRIPTION. ADDITIONAL TERMS AND CONDITIONS MAY APPLY UPON RENEWAL, AND SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED UNDER LAW. If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, please log in and go to the Change / Cancel Membership (or similar) page on your Account Settings page.
f. Cancellation Refund Policy. YOU MAY CANCEL YOUR SUBSCRIPTION TO THE SERVICE AT ANY TIME, AFTER WHICH WE WILL NOT RENEW YOUR SUBSCRIPTION (I.E. CANCELLATION WILL BE EFFECTIVE AT THE END OF THE THEN-CURRENT RENEWAL TERM). FOR THE AVOIDANCE OF DOUBT, YOU DO NOT HAVE A RIGHT OF WITHDRAWAL, BUT YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME AS DESCRIBED ABOVE. WE WILL ISSUE REFUNDS IN OUR SOLE DISCRETION. IF YOU WOULD LIKE A REFUND, PLEASE CONTACT [email protected]
g. Accurate Information. You must provide current, complete, and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete and accurate (such as a change in billing address, card number or expiration date), and you must promptly notify the Company if your Payment Method is canceled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). Changes to such information can be made at "Account Settings" on the Website. If you fail to provide the Company any of the foregoing information, you agree that you are responsible for fees accrued under your Billing Account. In addition, you authorize us to obtain updated or replacement expiration dates and card numbers for your credit or debit card as provided by your credit or debit card issuer.
h. Free or Discounted Trials. If you are participating in any free or discounted promotional offer via the Website, you must cancel such services before the end of the trial period to avoid incurring additional charges.
i. 3-Day Cancellation. Regarding the service, you, the buyer, may cancel this Agreement, without any penalty or obligation, at any time prior to midnight of the third business day following the date of this Agreement, as set forth in this paragraph, excluding Sundays and holidays. To cancel the Agreement, mail or deliver a signed and dated notice, or send a telegram which states that you, the buyer, are canceling this Agreement, or words of similar effect. The notice under this Section shall be sent to Cellar Door Ltd (SUITES 41/42, VICTORIA HOUSE, 26 MAIN STREET, GIBRALTAR, GX11 1AA, Gibraltar). Registration number: 116607 and via email to [email protected] Please include the e-mail address associated with your Kismia account in this notice. If you have any additional questions regarding refund policy, please contact us: [email protected] or +1 (877) 410-3952. For the Service, the day that you submit a completed subscription form will be the date of this Agreement. Any refunds under this 3-day cancellation policy will be made within 10 days after our receipt of your cancellation notice.
j. Cancellation As a Result of Death or Disability. If by reason of death or disability you are unable to receive the Service for which you contracted, you or your estate may elect to be relieved of the obligation to make payments for services other than those received before death or the onset of disability, except as provided in subsection (iii) below.
i. If you have prepaid any amount for the Service, so much of the amount prepaid that is allocable to services that you have not received will be promptly refunded to you or your representative.
ii. “Disability” means a condition which precludes you from physically using the Service during the term of disability and the condition is verified in writing by a physician designated and remunerated by you. Written verification from the physician must be presented to Kismia.
iii. If the physician determines that the duration of the disability will be less than six (6) months, Kismia may extend the term of the Service contract for a period of six (6) months at no additional charge to you in lieu of cancellation.
This Agreement will remain in full force and effect while you use the Service. You may terminate your membership and/or subscription (subject to Section 3 above) at any time, for any reason, by contacting our Support Team online. We may cancel or suspend your use of our Services, membership and/or subscription at any time, without cause and without notice. If we cancel or suspend your use of the Services without cause (as determined by Kismia), we will provide you with a refund for any pre-paid, but unused fees. We are not required, and may be prohibited, from disclosing a reason for the termination of your account. After your membership or subscription is terminated, all terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination. We reserve the right to take further action for our loss or the potential loss of other members or third parties when necessary due to your breach of this Agreement, in our sole discretion.
5. NON-COMMERCIAL USE BY MEMBERS.
The Website is for personal use only and may not be used in connection with any commercial endeavors. Organizations, companies, and/or businesses may not use the Service for any purpose.
6. ACCOUNT SECURITY.
You are responsible for maintaining the confidentiality of the username and password that you designate during the registration process, and you are fully responsible for all activities that occur under your username and password. You agree to (a) immediately notify Us of any unauthorized use of your username or password or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Service will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. Additionally, by using the Service, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Website may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted. We will not be liable for any loss or damage arising from unauthorized use of your credentials. You may not authorize others to use your membership and you may not assign or otherwise transfer your account to any other person or entity.
7. YOUR INTERACTIONS WITH OTHER MEMBERS.
a. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. YOU UNDERSTAND THAT THE SERVICE CURRENTLY DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR SCREENINGS ON ALL MEMBERS. MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE MEMBERS. MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE ABILITY TO SECURE ANY VISAS OR OTHER INTERNATIONAL TRAVEL DOCUMENTATION. RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
b. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service. This includes disputes between users. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release Kismia of all claims, demands, and damages in disputes among users of the Service. You also agree not to involve us in such disputes. Use caution and common sense when using the Service, especially when providing personal information to other users. Kismia makes no representations or warranties as to the conduct of users. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS (COLLECTIVELY, THE “RELEASED PARTIES”) BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF, OR RELATING TO, THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, LOSS OF BUSINESS, LOST PROFITS, TRADE SECRET MISAPPROPRIATION, INTELLECTUAL PROPERTY INFRINGEMENT, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THIS SERVICE OR PERSONS YOU MEET THROUGH THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON. YOU ASSUME ALL RISK WHEN ENGAGING THE SERVICES OF ANY OTHER USER AND IN CONNECTION WITH USING THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY RISKS ASSOCIATED WITH SHARING CONFIDENTIAL INFORMATION WITH ANY OTHER USER OR SENDING MONEY TO ANY USER. ALL USERS OF THE SERVICE HEREBY EXPRESSLY AGREE NOT TO HOLD THE RELEASED PARTIES LIABLE FOR ANY INSTRUCTION, ADVICE OR SERVICES DELIVERED THAT ORIGINATED THROUGH THE SERVICE AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ANY LIABILITY WHATSOEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES THAT ARISE OR RELATED IN ANY WAY TO THE SERVICE, THE INFORMATION PROVIDED THROUGH THE SERVICE AND THE SERVICES PROVIDED BY OR TO ANY USER OF THE SERVICE, WHETHER ARISING UNDER CONTRACT, TORT OR OTHERWISE. IN ADDITION, YOU AGREE TO REVIEW ’S SAFETY TIPS PRIOR TO USING THE SERVICE. YOU UNDERSTAND THAT MAKES NO GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING YOUR ULTIMATE COMPATIBILITY WITH INDIVIDUALS YOU MEET THROUGH THE SERVICE. YOU SHOULD NOT PROVIDE YOUR FINANCIAL INFORMATION (FOR EXAMPLE, YOUR CREDIT CARD OR BANK ACCOUNT INFORMATION) TO OTHER MEMBERS AND WE DISCLAIM ALL LIABILITY ASSOCIATED WITH THE FOREGOING.
c. WE CLAIM IMMUNITY FROM LIABILITY TO THE FULLEST EXTENT UNDER THE LAW AND FOR CONTENTS AND SERVICES PROVIDED BY THIRD-PARTY AGENCIES THAT THE SERVICE COOPERATES WITH AND NOTHING IN THIS AGREEMENT IS INTENDED TO WAIVE, REMOVE OR USURP SUCH IMMUNITY. WE ASSUME NO RESPONSIBILITY FOR THE PRIVACY PRACTICES OF ANY THIRD-PARTY AGENCIES THAT WE COOPERATE WITH. WE DO NOT DETERMINE WHICH INFORMATION WILL BE COLLECTED BY THAT THIRD PARTY FOR PURPOSES UNRELATED TO THE SERVICES OF THE SERVICE.
d. To the fullest extent permitted by law, we make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service. Use the Service at your own risk.
e. Third-Party Websites. The Service may include links to third party websites and applications. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them.
f. We make no promises and disclaim all liability of specific results from the use of the Service.
g. The Service may ask you to rate other users' photos or ask other users to rate your photo.
h. The Service may send you the notification of other users visiting your profile (via email or on the Website) if a user rates your photo or visits your profile on the Service;
i. The Service operates an algorithm for the automatic allocation of attention and activity. The algorithm automatically determines users with insufficient incoming and outgoing activity, and then sends from the user a welcome message to the most appropriate contact (another user of the Service, defined as the most appropriate contact for the user by the algorithm). The task of the algorithm is to allocate the attention and activity among users of the Service. Automatic messages generated by algorithm differ from the standard messages in style and are easy to sprawl.
j. The Service may automatically translate your name or your city to other languages;
k. The Service is not taking any responsibility for the actions listed in this paragraph. If you do not agree with them, fully or partially, PLEASE LEAVE THE SERVICE IMMEDIATELY.
From time to time, we may remove the profiles of non-subscribers without any explanations or notifications. A Member profile (both subscribers and non-subscribers) may remain posted on the Website even if that Member is not actively using the Service. You acknowledge that although a Member’s profile may be viewed, you may not (even as a subscriber) be able to use the Service to communicate with that Member if he or she is not then actively using the Service.
8. CONTENT ON
a. Proprietary Rights. Kismia owns, licenses, or otherwise retains all proprietary rights in the Service. Those rights include, but are not limited to, database rights, copyright, design rights (whether registered or unregistered), patents, trademarks (whether registered or unregistered) and other similar rights, wherever existing in the world, together with the right to apply for the protection of the same of Kismia and its licensors. The Service contains the copyrighted material, trademarks, and other proprietary information of Kismia, and its licensors. Except for that information which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.
b. Reliance on Content, Advice, Etc. Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by Kismia, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Kismia does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Service, or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Website. To the fullest extent permitted by law, under no circumstances will Kismia or its affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted on the Service or transmitted to or by any Members.
9. CONTENT POSTED BY YOU ON THE SERVICE
a. You are solely responsible for the content that you publish or display (hereinafter, “post”) on the Service, or transmit to other users (“User Content”). You will not post on the Service, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not provide inaccurate, misleading or false information to the Company or to any other user. If information provided to Kismia, or another user, subsequently becomes inaccurate, misleading or false, you will promptly notify Kismia of such change.
b. You understand and agree that we reserve the right, but have no obligation, to monitor the information or content that is being submitting to the Services or post in the public areas of the Services. We have the right but have no obligation to remove any such information or content with no explanations and notifications.
d. You hereby release, discharge and agree to hold Kismia harmless to the full extent you may lawfully do so, from any causes of action in law or equity you may have or may hereafter acquire against Kismia or any of its affiliates for libel, slander, invasion of privacy, copyright or trademark violation, right of publicity, or false light arising out of or in connection with the utilization by Kismia or its affiliates of your User Content.
e. The following is a list of the kind of User Content that is illegal or prohibited on the Website; provided that Kismia may remove any User Content for any reason. We reserve the right to investigate and take appropriate legal action in our sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Service and terminating the membership of such violators. It includes, but is not limited to, User Content that: (i) is patently offensive to the online community, such as User Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person; (ii) promotes information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (iii) promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files; (iv) contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page); (v) provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18; (vi) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; (vii) engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes; or (viii) has features of porno or adult content, including, but not limited, content that represent sexual act, naked genitals etc.
f. Your use of the Service, including but not limited to your User Content, must be in accordance with any and all applicable laws and regulations.
g. You may not include in your Member profile any telephone numbers, street addresses, last names, URLs or email addresses.
h. You may not publish false or inaccurate information in your Member profile. You may not create duplicate profiles. Kismia reserves the right to terminate the membership and deactivate the profile of any Member violating this provision.
i. You may not engage in advertising to, or solicitation of, other Members. This includes but is not limited to solicitation or advertising to buy or sell any products or services through the Service or to attend parties or other social functions or networking for commercial purposes. You may not transmit any chain letters or junk email to other Members. Although Kismia cannot monitor the conduct of its Members off the Website, it is also a violation of these rules to use any information obtained from the Service in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any Member without their prior explicit consent. In order to protect our Members from such advertising or solicitation, we reserve the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which we deem appropriate in our sole discretion.
j. To ensure the quality of the Services, your phone call or live chat through the Website may be recorded.
k. All information you include in your Member profile must be accurate, current and complete. You will be honest in your communication and interactions with other members. You should not conceal from those whom you correspond information regarding infectious, incurable diseases, physical or psychological handicap/disabilities you may have or may believe that you have or any other adverse elements that may be deemed by some to be unsuitable for relationships.
l. When using particular services on the Service, you shall be subject to any posted policies or procedural rules applicable to such Services, which may be posted and modified from time to time. All such policies or procedural rules are hereby incorporated into this Agreement.
10. PROHIBITED ACTIVITIES.
Kismia reserves the right to investigate and terminate your membership if you have misused the Service, or behaved in a way which could be regarded as inappropriate or whose conduct is unlawful or illegal. It includes, but is not limited to, the partial list below of the type of actions that you may not engage in with respect to the Service:
a. You will not “stalk” or otherwise harass any person.
b. You will not use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents.
c. You will not post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights.
d. You will not remove any copyright, trademark or other proprietary rights notices contained in the Service.
e. You will not interfere with or disrupt the Services or the site or the servers or networks connected to the Services or the site.
f. You will not post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
g. You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Service.
h. You will not make illegal and/or unauthorized uses of the Services, including collecting usernames and/or email addresses of other members posted on the Service by any means for the purpose of sending unsolicited emails and unauthorized framing of or linking to the Service. Appropriate legal action will be taken on our side, including without limitation, civil, criminal and injunctive redress.
i. You will not “frame” or “mirror” any part of the Service or the Website, without Kismia prior written authorization. You also shall not use meta-tags or code or other devices containing any reference to Kismia or the Service or the site in order to direct any person to any other web site for any purpose.
j. You will not modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or any software used on or for the Service or cause others to do so.
k. You will not post any pornographic materials.
l. You will not attempt to interfere with, harm, steal from, or gain unauthorized access to the Service, user accounts, or the technology and equipment supporting the Service.
m. You will not post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity.
n. You will not disclose personal information about another person or harass, abuse, or post objectionable material.
o. You will not post advertising or marketing links or content, except as specifically allowed by this Agreement.
p. You will not use the Service in an unlawful or illegal way or commit an illegal act in relation to the Service or that otherwise results in fines, penalties, and other liability to Kismia or others, including, without limitation, all laws associated with international money transfers.
q. You will not access the Service from a jurisdiction where it is illegal or unauthorized.
r. You will not collect usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Service.
s. You will not create any databases, websites, software, legal entities and/or services competitive with the Website.
t. You will not access or use (or attempt to access or use) the Service in any way that violates this Agreement.
11. CUSTOMER SERVICE
a. Kismia provides assistance and guidance through its customer care representatives. We may, from time to time, create profiles which are created, maintained and managed by our employees (“Staff Profiles”). The purpose of these Staff Profiles is to enable us to ensure our Services are operating properly by testing the Services, features and functionalities, and to research our products and Services. All Staff Profiles will be identifiable as such and in the event that you opt to communicate or interact with a Staff Profile you will be made aware of the nature of this Staff Profile.
c. By providing your phone number, you consent to receive autodialed or prerecorded calls from us at the phone number that you have provided to us or that we have otherwise obtained to: (i) facilitate conversations between you and other users; or (ii) otherwise provide our services or enforce this Agreement. You are not required to provide your consent to these calls as a condition of purchase on the Service. Standard telephone minute charges may apply. We may, without further notice or warning and in our discretion, monitor or record telephone conversations that we have with you or anyone acting on your behalf for quality control and training purposes or to protect our rights.
d. When communicating with our customer care representatives, you agree to not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or to not otherwise behave inappropriately. If we feel that your behavior towards any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate your membership and you will not be entitled to any refund of unused subscription fees.
12. MODIFICATIONS TO SERVICE.
Kismia reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Kismia shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
13. BLOCKING OF IP ADDRESSES.
In order to protect the integrity of the Service, Kismia reserves the right at any time in its sole discretion to block Members from certain IP addresses from accessing the Website.
14. COPYRIGHT POLICY.
You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights.
a. Overview and Repeat Infringer Policy. Kismia respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask you to do the same. Infringing activity will not be tolerated on or through the Service. Our intellectual property policy is to (i) remove or disable access to material that we believe in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on or through the Service; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” Kismia considers a “repeat infringer” to be any user that has uploaded User Content to or through the Service and about whom Kismia has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 (or other equivalent notices under applicable law) with respect to such User Content. Kismia has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Kismia’s own determination.
b. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the designated agent identified below. Kismia may share your Notification of Claimed Infringement with the user alleged to have infringed a right you own or control, and you consent to Kismia making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the material(s) that has/have been allegedly infringed;
- Identification of the material allegedly being infringed, or, if multiple materials are covered by a single notification, then a representative list of such works;
- Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Kismia to locate the material on the Service;
- Information reasonably sufficient to permit Kismia to contact you, such as your name, address, telephone number, and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 or other applicable law regarding copyright infringement to confirm your obligations to provide a valid notice of claimed infringement.
c. Designated Agent Contact Information. Kismia’s designated agent for receipt of Notifications of Claimed Infringement can be contacted at:
Via E-mail: [email protected]
Via Mail: Cellar Door Ltd (SUITES 41/42, VICTORIA HOUSE, 26 MAIN STREET, GIBRALTAR, GX11 1AA, Gibraltar). Registration number: 116607
d. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Kismia] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Kismia reserves the right to seek damages from any party that submits a false notification in violation of the law.
15. MEMBER DISPUTES.
We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service. This includes disputes between users. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release Kismia of all claims, demands, and damages in disputes among users of the Service. You also agree not to involve us in such disputes. Use caution and common sense when using the Service. Kismia makes no representations or warranties as to the conduct of users.
17. ADDITIONAL DISCLAIMERS.
a. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (i) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (ii) THE RELEASED PARTIES MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, INCLUDING DATA, WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY DATA OR SERVICE AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONS AND, (E) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (iii) ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.
b. In addition to the preceding paragraph and other provisions of this Agreement, any advice that may be posted on the Service is for informational and entertainment purposes only and is not intended to replace or substitute for any professional financial, medical, legal, or other advice. Kismia makes no representations or warranties and, to the fullest extent permitted by law, expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Service. If you have specific concerns or a situation arises in which you require professional or medical advice, you should consult with an appropriately trained and qualified specialist.
18. LIMITATION ON LIABILITY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (E) YOUR RELIANCE ON CONTENT OR DATA MADE AVAILABLE BY US; OR (F) ANY OTHER MATTER RELATING TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF COMPANY CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE GREATER OF THE FEES YOU HAVE PAID TO AND USD $100.
19. INDEMNITY BY YOU.
To the fullest extent permitted by law, you agree to indemnify and hold Kismia, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of your use of the Service in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in connection therewith.
20. NO THIRD PARTY BENEFICIARIES.
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
a. Mandatory Arbitration. Please read this Section carefully. YOU AND , AND EACH OF OUR RESPECTIVE AGENTS, CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND ASSIGNS, AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, UNLESS YOU ARE LOCATED IN A JURISDICTION THAT PROHIBITS THE EXCLUSIVE USE OF ARBITRATION FOR DISPUTE RESOLUTION. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
i. Commencing Arbitration. A party intending to seek arbitration must first send to the other, by an international courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Kismia, via any other method available to Kismia, including via e-mail. The Notice to Kismia must be addressed to Cellar Door Ltd (SUITES 41/42, VICTORIA HOUSE, 26 MAIN STREET, GIBRALTAR, GX11 1AA, Gibraltar). Registration number: 116607, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Kismia do not reach an agreement to resolve the claim within 30 days after the Notice is received, then you or Kismia may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) WILL ADMINISTER THE ARBITRATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at http://www.adr.org. If you are required to pay a filing fee to commence an arbitration against Kismia, then Kismia will promptly reimburse you for your confirmed payment of the filing fee upon Kismia’s receipt of a Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
ii. Arbitration Proceeding. The arbitration will be in English. A single independent and impartial arbitrator with his or her primary place of business in San Francisco, California will be appointed pursuant to the Rules, as modified herein. You and Kismia agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award the arbitrator renders may be entered in any court of competent jurisdiction.
iii. No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER LAW, YOU AND AGREE THAT YOU AND MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
iv. Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of California in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to this Section 21 in this Agreement.
b. Equitable Relief. The foregoing provisions of this Section 21 do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. For the avoidance of doubt, however, you acknowledge that, in the event Kismia or a third party breaches this Agreement, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Kismia, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this Agreement.
c. Claims. You and Kismia agree that, notwithstanding any other rights a party may have under law or equity, any cause of action arising out of or related to this Agreement or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Improperly Filed Claims. All claims you bring against Kismia must be resolved in accordance with this Section. All claims filed or brought contrary to this Section will be considered improperly filed. Should you file a claim contrary to this Section, Kismia may recover attorneys’ fees and reimbursement of its costs, provided that Kismia has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
e. Modifications. In the event that Kismia makes any future change to the “Mandatory Arbitration” paragraph set forth above (other than a change to Kismia’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to Kismia’s Arbitration Notice Address, in which case your account with Kismia and your license to use the Service will terminate immediately, and this Section, as in effect immediately prior to the amendments you reject, will survive the termination of this Agreement.
f. Enforceability. If only the “No Class Actions” paragraph above or the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to this Agreement.
22. GOVERNING LAW
The laws of the State of California, excluding its conflicts of law rules, govern this Agreement and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
23. OTHER AND AMENDMENTS.
This Agreement contains the entire agreement between you and Kismia regarding the use of the Service. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. This Agreement is subject to change by Kismia at any time. If you are a non-subscribing Member at the time of any change, the revised terms will be effective upon posting on the Service and your use of the Service after such posting will constitute acceptance by you of the revised Agreement. If you are a subscribing Member at the time of any change, this Agreement will continue to govern your membership until such time that you renew your subscription as contemplated by Section 3. If you continue your subscription, your renewal will constitute acceptance by you of the revised Agreement. Alternatively, if you terminate your subscription at such time, your use of the Service after your termination will constitute re-acceptance by you of the Agreement.
The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Kismia as a result of this Agreement or use of the Service.
24. Notice Regarding Apple. If you are using our mobile applications on an iOS device, the terms of this Section 24 apply. You acknowledge that this Agreement is between you and Kismia only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 24 of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 24 of this Agreement against you. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Please contact us with any questions regarding this agreement.
Cellar Door Ltd (SUITES 41/42, VICTORIA HOUSE, 26 MAIN STREET, GIBRALTAR, GX11 1AA, Gibraltar). Registration number: 116607
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.