Effective Date: January 4, 2017
You accept these Terms of Service by agreeing to use the services offered by Kirb, Inc, a California based Corporation (“us”, “our” or “we”). These terms of service may change over time and you agree that the continued use of our services enter into these terms of service by accepting the conditions set out herein, and any future updates, you agree to accept any changes therein. These terms of services govern the services offered by us and your obligations to ensure proper delivery of our services.
In order to use the interactive features on the Application, you must first register with us through our online registration process on the Application. Regardless of how you decide to use the Application, your conduct on the Application is governed by this Agreement.
- Your Use of the Application and Affirmative Representations.
When you use the Application, you represent that: (a) the information you submit is truthful and accurate; (b) you will update your contact information if it changes so that we can contact you; (c) your use of the Application and your use of services available on the Application do not violate any applicable law or regulation or constitute or encourage a criminal offense, illegal activity or violate the rights of any third party; (d) you are age of majority and may enter into binding contracts in the state in which you reside; and (e) you will comply with the rules for online conduct and making Listings (as defined in Section 2 below) to the Application, as discussed in Section 2 below. You further represent and warrant that you will comply with all local rules regarding online conduct and acceptable Listings.
- Rules Governing Public Listings, Fora and Interactive Features.
(a) own or have sufficient rights to post your Listings on or through the Application;
(b) have fully complied with any third-party licenses relating to Listings;
(c) will not post or submit Listings that contain advertisements, promotional materials, junk mail, spam or solicit any person to buy or sell products or services (other than our products and services);
(d) will not use the Application for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Application without our express written consent;
(e) will not disrupt or interfere with the security of, or otherwise abuse the provision of any services, system resources, accounts, servers or networks connected to or accessible through the Application or affiliated or linked websites, or access or use nonpublic areas of the Application;
(f) will not disrupt or interfere with any other user’s enjoyment of the Application or linked websites;
(g) will not impersonate any other person or entity, misrepresent your affiliation with a person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity.
(h) will not use your account for any unlawful or otherwise unauthorized activities as determined by Us.
(i) will comply with all local, state, and federal laws including but not limited to having all appropriate permits, licenses, and will comply with any regulatory agencies regarding posting, fee sharing, or any work performed.
- Grant of License to Us for Listings.
We do not claim any ownership right in the Listings that you post on or through the Application. After posting your Listings on the Application, you continue to retain any rights you may have in your Listings, including any intellectual property rights or other proprietary rights associated with your Listings, subject to the license you grant to us below. We need a license from you so that we can use your Listings on the Application or elsewhere and permit App users to license your Listings for use in connection with our App.
By making a Listing to the Application, you grant us a perpetual, nonexclusive (meaning you are free to license your Listing to anyone else in addition to us), sublicensable (so that we can use third party service providers such as hosted service providers to make the Application available to you and permit you and others to use interactive features on the Application such as allowing App users to license your Listings for use in connection with the App) and worldwide (because the Internet and the Application are global in reach), transferable license to use, modify, create derivative works of, publicly perform, publicly display, reproduce and
distribute the Listing in connection with the Application, our App, our business or the promotion thereof in any media formats and through any media channels now known or hereafter devised.
- Grant of License to You to use Listings.
4.1 Limited Granting of License to Use Listings in Connection with the App.
We reserve the right to allow users to offer Listings. Use of Listings will be limited by Us pursuant to predetermined geographical restrictions. Subject to your payment of all applicable fees, we grant you a nonexclusive, nontransferable, revocable, limited license to use our services subject to the restrictions set forth herein.
4.2 License Restrictions.
4.2.1 Limited Listings. We reserve the right to limit listings in specific geographical regions at our discretion. You may contact us regarding availability for Listings, but may not be granted listings as Our quotas for restrictions may have been met.
4.2.2 Account Maintenance. You have an obligation to maintain your Listing. You shall not either directly or through the use of any device, software, internet website, web based service or other means remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on Listings or any digital rights management mechanism, device, or other content protection or access control measure associated with Listings or the Application. We also reserve the right to remove your Listing at our discretion. The take down may occur due to violation of these terms, low reviews by other members, or reports of abuse and or fraudulent activities.
4.2.3 Accuracy of Information. You agree all information you post in your Listing shall be accurate and up to date including any and all licenses you may hold, business information
- Fees; Royalty Payments and Payment Terms
Any individual who seeks to make a listing will be required to apply via an application for acceptance of the Listing by us. We also require you to provide us with an approved billing method for the purposes of maintenance of your account. You agree that so long as you continue to maintain the listing, you authorize reoccurring charges based upon a fee structure agreed upon by you at the time of placement of the listing.
- Use and Protection of Account Number and Password.
We may ask you to create a username and password. You are responsible for maintaining the confidentiality of your account number and password, if applicable. You are responsible for all uses of your account, whether or not actually or expressly authorized by you. You shall not transfer your account, username or password to any third party without our consent. You must: (a) immediately notify us of any unauthorized use of your account or any other breach of security; and (b) ensure that you exit from your account at the end of each session.
- Our Intellectual Property Rights. All of the content on the Application, including without limitation Listings, and the trademarks, service marks, and logos contained on the Application (“Materials ”), are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. We reserve all rights not expressly granted in and to the Application and the Materials. You agree that you will not circumvent, disable or otherwise interfere with security related features of the Application or features that: (a) prevent or restrict use or copying of any Materials; or (b) enforce limitations on use of the Application or the Materials on the Application. You further agree not to access the Application by any means other than through the interface that we provide, unless otherwise specifically authorized by us in a separate written agreement.
- Our Management of the Application/User Misconduct.
8.1 Our Application Management. We may, but are not required to: (a) monitor or review the Application for violations of this Agreement and for compliance with our policies;
(b) report to law enforcement authorities and/or take legal action against anyone who violates this Agreement;
(c) refuse, restrict access to or the availability of, or remove or disable (to the extent technologically feasible) any Listing or any portion thereof that may violate this Agreement, the law or any of our policies or are excessive in size or burdensome without prior notice to you; and/or
(d) manage the Application in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Application.
8.2 Our Right to Terminate Users.
Without limiting any other provision of this Agreement, we reserve the right to, in our sole discretion and without notice or liability deny access to and use of the Application to any person for any reason or for no reason at all, including without limitation for breach of any representation, warranty or covenant contained in this Agreement, or of any applicable law or regulation.
8.3 Risk of Harm.
Please note that there are risks, including but not limited to the risk of physical harm, of dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you post on the Application and that you give to other Application users. You assume all risks associated with dealing with other users with whom you come in contact through the Application. We expect that you will use caution and common sense when using the Application.
- Term and Survival. This Agreement shall remain in full force and effect while you use the Application. You may terminate your use or participation at any time, for any reason, by emailing us. Upon termination of your Application account for any reason, we will close your account, and you will no longer be able to retrieve materials contained in the account. The following sections will survive termination of this Agreement: 3, 5, 10,12, and 18.
- Copyright Policy.
We will terminate the account and access rights of any repeat infringer in appropriate circumstances. If you are a copyright owner or the legal agent of a copyright owner, and you believe that any Listing or Materials on the Application infringes upon your copyrights, you may submit a notification pursuant to our Digital Millennium Copyright Act Notice.
- Modifications. The Internet and technology are rapidly changing. Accordingly, we may modify this Agreement from time to time. If you are a registered user, you will be asked to click to accept the new agreement the next time you log on to the Application in order to be able to continue to use the interactive portions of the Application. We will also put any revised versions of this Agreement on the Application with a notice advising of the change. It is therefore important that you regularly check the Application for any announcements about revisions and keep your contact information current to ensure you are informed of any changes.
- Third Party Websites.
The Application may contain links to other websites (“Third Party Websites” ). We do not own or operate the Third Party Websites, and we have not reviewed, and cannot review, all of the material, including goods or services, made available through Third Party Websites. The availability of these links on the Application does not represent, warrant or imply that we endorse any Third Party Websites or any materials, opinions, goods or services available on them. Third party materials accessed through or used by means of the Third Party Websites may also be protected by copyright and other intellectual property laws.
- Disputes Between Users.
You agree that any disputes between users shall be resolved by the users. Kirb makes no representations or warranties as to the quality of services offered by users nor guarantees any specific services. Users post and rely on listings at their own risk. Kirb is not responsible for the actions of those services provided by any listings. Any and all disputes should be resolved between the parties themselves.
- Disputes with Us, Choice of Law and Forum.
You agree that any dispute shall be settled via arbitration and that arbitration will be administered by Judicial Arbitration & Mediation Services, Inc. (“JAMS”) pursuant to its Streamlined Arbitration Rules & Procedures (the “JAMS Rules”). You agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers applying the standards set forth under the California Code of Civil Procedure. You agree that the arbitrator shall issue a written decision on the merits. You also agree that the arbitrator shall have the final power to award any remedies available under applicable law, and that the arbitrator shall award Attorney’s fees and costs to the prevailing party where provided by applicable law. You agree that the decree or award rendered by the arbitrator may be entered as a final and binding judgment in any court having jurisdiction thereof. You agree that the arbitrator shall administer and conduct any arbitration in accordance with California LAW, including the California Code of Civil Procedure and the California evidence code, and that the arbitrator shall apply substantive and procedural California law to any dispute or claim, without reference to rules of conflict of law. To the extent that the JAMS Rules conflict with California law, California law shall take precedence.
WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND KIRB WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR REPRESENTATIVE ACTION OR PROCEEDING.
ALL LISTINGS, MATERIALS AND ITEMS PROVIDED THROUGH THE MARKETPLACE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING THE MARKETPLACE, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY LISTINGS OR OTHER MATERIALS OR ITEMS AVAILABLE ON OR LINKED TO BY THE MARKETPLACE, INCLUDING WITHOUT LIMITATION, CONTENT HOSTED ON THIRD PARTY MARKETPLACES, OR THAT WE BELIEVE LISTINGS OR ANY OTHER MATERIALS OR ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE LISTINGS OR MARKETPLACE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THE MARKETPLACE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU AGREE THAT YOUR USE OF THE CONTENT, MARKETPLACE AND SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED IN CONNECTION WITH THE MARKETPLACE AND YOUR USE THEREOF. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE MARKETPLACE’S CONTENT, THE CONTENT OF ANY WEBSITE LINKED TO THE MARKETPLACE, LISTINGS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THE MARKETPLACE OR LINKED TO BY THE MARKETPLACE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT, LISTINGS AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR MARKETPLACE OR SERVICES, (C) ANY ILLEGAL OR UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE MARKETPLACE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE MARKETPLACE BY ANY THIRD PARTY, OR (F) ANY ERRORS OR OMISSIONS IN ANY LISTINGS, CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT, LISTINGS, OR MATERIALS POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE MARKETPLACE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
- Limited Liability.
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE MARKETPLACE, LISTINGS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED FIVE HUNDRED DOLLARS [$500]
You agree to indemnify and hold us, our subsidiaries, affiliates, and licensors and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of the Listings you post to the Application, your use of the Application, Listings, or Materials 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. 18. Miscellaneous.
18.1 Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Application and supersedes any prior or contemporaneous understandings and agreements between you and us related to the subject matter hereof.
18.2 Independent Contractors.
Nothing in this Agreement shall be deemed to create an agency, partnership, joint venture, employer/employee or franchisor/franchisee relationship of any kind between us and any user.
18.3 No Third Party Beneficiaries.
This Agreement is between you and us. There are no third-party beneficiaries to this Agreement.
18.4 Section Titles.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.
This Agreement operates to the fullest extent permissible by law. If any provision or part of a provision of this Agreement is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
18.7 Assignment. You may not assign your rights under this Agreement to any third party; we may assign our rights under this Agreement without condition.
This Agreement was last updated on: January 4, 2017