The following Terms of Service (these “Terms”) describe the terms and conditions on which Kaminario, Inc. (sometimes referred to in these Terms as “Kaminario,” “we” or “us”) offers you access to this website and any related website, application, service and mobile application on or to which these Terms are linked or referenced (the “Services”).
Before accessing and using the Services, please read these Terms carefully because they constitute a legal agreement between Kaminario and you. BY USING THE SERVICES, YOU AFFIRM THAT:
✓ YOU HAVE READ AND UNDERSTAND THESE TERMS;
✓ YOU WILL COMPLY WITH THE TERMS; AND
✓ YOU ARE AT LEAST THE AGE OF LEGAL MAJORITY IN YOUR PLACE OF RESIDENCE AND OTHERWISE LEGALLY COMPETENT TO ENTER INTO CONTRACTS.IMPORTANT NOTE: These Terms contain provisions that limit Kaminario’s liability to you and require you to resolve any dispute with us on an individual basis and not as part of any class or representative action. Please see “DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY” (Section 8) and “DISPUTE RESOLUTION” (Section 10) below for more information.
IMPORTANT NOTE: These Terms contain provisions that limit Kaminario’s liability to you and require you to resolve any dispute with us on an individual basis and not as part of any class or representative action. Please see “DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY” (Section 8) and “DISPUTE RESOLUTION” (Section 10) below for more information.
If you use the Services on behalf of your employer, you represent that you are authorized by your employer to accept these Terms. If you do not agree to these Terms, then please do not use the Services.
1. CHANGES TO TERMS
The Effective Date of these Terms is set forth at the top of this webpage. As we add new features, we may need to modify these Terms. When we modify these Terms, we will update the Effective Date. Whenever possible, we also will provide you with advance written notice of our changes. We will not make changes that have a material retroactive effect unless we are legally required to do so. Your continued use of the Services after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions of or agreements, notices or statements of or about the Terms.
2. ADDITIONAL TERMS
Certain Services may be governed by additional terms and conditions presented in conjunction with them, such as Kaminario’s K-Assured Program (click here for more information). You must agree to the additional terms before using such Services. These Terms and any additional terms will apply equally. If any additional term is irrevocably inconsistent with any provision of these Terms, the additional term will prevail but solely to the extent of the inconsistency.
In addition, the terms applicable to use of certain non-public sections of the Services may be set forth in agreements between Kaminario and its customers (“Customer Agreements”). A Customer Agreement prevails over these Terms to the extent of any conflict or inconsistency.
3. DATA PROTECTION
You also understand that we do not and cannot guarantee that your use of the Services and/or the information provided by you through the Services will be private or secure. We are not responsible or liable to you for any lack of privacy or security you may experience. You are responsible for using the precautions and security measures best suited for your situation and intended use of the Services. We reserve the right at all times to disclose any information as we deem necessary to satisfy any applicable law, regulation, legal process or governmental request.
4. KAMINARIO CONTENT
The Services, including any information, graphic, artwork, text, video clip, audio clip, trademark, logo and other content provided on, in or through the Services, (collectively, “Kaminario Content“) are owned by Kaminario or its licensors and protected under both United States and foreign copyright, trademark and other laws.
Kaminario grants to you a personal, nonexclusive, nontransferable and limited license (without the right to sublicense) to access and use the Services and download, print and/or copy Kaminario Content solely for your own personal use and subject to these Terms. You acknowledge that the trade secrets and intellectual property embodied in the Services have not been and will not be licensed or otherwise disclosed to you. You acknowledge that the HTML code that generate the pages of the Services are protected by Kaminario’s copyrights. All rights not expressly granted herein are reserved by Kaminario.
These Terms and your use of the Services grant you only the limited rights described in these Terms. Nothing contained in these Services grants by implication, estoppel or otherwise, any license or right in or to Kaminario’s trademarks, logos or service marks (“Marks”), patents, trade secrets or other intellectual property embodied in the Services. Unauthorized use of any of the Marks or our other intellectual property may violate law.
5. USING THE SERVICES
5.1. Eligibility: You must be the age of legal majority or older in your place of residence to use the Services. Persons who are not of the age of majority are not eligible to use the Services.
5.2 Your Account: You are required to create an account (“Account”) to use certain features of the Services, such as the Partner Community or our customer portal. You agree that you will maintain your Account information to ensure that it is always current, complete and accurate. If you provide untrue, incomplete or inaccurate information, you understand that we have the right to terminate your Account and use of the Services.
Please do not share your Account with anyone else. You are responsible for all use of your Account, including use by others to whom you have provided access to your Account. Access to any of the Services through your Account will be treated as authorized by you. You also are responsible for any use of your Account caused by your failure to secure your user ID or password.
5.3. Your Responsibilities: You may use the Services for lawful, non-commercial purposes only. You may not use the Services in any manner that could damage, disable, overburden, or impair our servers or networks or interfere with any other party’s use and enjoyment of the Services.
You may not attempt to gain unauthorized access to the Services, other users’ Accounts or Kaminario’s computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you agree that you shall not (and you agree not to encourage or allow any third party to):
a. copy, modify, adapt, translate, reverse engineer, decode or otherwise attempt to derive or gain access to any portion of the Services or Kaminario Content;remove any copyright, trademark or other proprietary rights notice contained in the Services or Kaminario Content;
b. remove any copyright, trademark or other proprietary rights notice contained in the Services or Kaminario Content;use any robot, spider, search/retrieval application, or
c. use any robot, spider, search/retrieval application, or other automated device, process or means to access, retrieve, scrape or index any portion of the Services;
d. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services or any feature or functionality of the Services to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time
e. reformat or frame any portion of the web pages that are part of the Services;
f. create more than one Account under false or fraudulent pretenses;
g. collect or store personal data about any other user without his/her express prior written consent;
h. use the Services to send any unauthorized advertisement, junk mail or other unsolicited or unauthorized commercial or promotional content.
Kaminario has the discretion to terminate your access to the Services without notice for any violation of the above rules.
You are solely responsible for any and all charges, fees and other costs related to use of the Services. If you access and use the Services on your smartphone, tablet or other mobile device, you must have wireless service through Wi-Fi or a participating mobile service provider. You agree that you are solely responsible for all message and data charges that you incur from your mobile service provider.
5.4. Submissions. Kaminario may from time to time offer areas in the Services where you and other users can post or otherwise submit suggestions, ideas, notes, concepts or other information or materials to or through the Services (collectively, “Submissions“). By sending, posting or transmitting Submissions to Kaminario (and/or our designees) through the Services, you grant Kaminario and our designees a worldwide, non-exclusive, sub-licensable (through multiple tiers), transferable, royalty-free, perpetual, irrevocable right to use, reproduce, sublicense (through multiple tiers), distribute, create derivative works of, perform and import your Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to you. In other words, Kaminario has the automatic right to use your Submissions — including reproducing, disclosing, publishing or broadcasting your Submissions — in any medium and for any purpose. Under no circumstances are you entitled to payment if Kaminario uses one of your Submissions. All Submissions are deemed non-confidential and non-proprietary.
By posting a Submission, you represent and warrant that:
> you own or otherwise control all of the rights to your Submission, including without implied limitation all copyrights;
> your Submission is true and accurate;
> your Submission does not violate the rights of any other person or entity, such as rights of privacy and publicity; and
> your Submission complies with applicable laws, rules and regulations.
You acknowledge and agree that Kaminario has the right (but not the obligation) to alter, remove or refuse to post or allow to be posted any Submission. Kaminario takes no responsibility and assumes no liability for any Submission posted by you or any third party. Kaminario is not responsible for information that you choose to communicate via Submissions.
From time to time, we may offer you the opportunity to participate in discounts, offers or other promotions (collectively, “Promotions”). You may not be transfer, assign, sell, trade or barter any prize, premium, reward or other benefit that you receive through our Promotions. Unless required by law, any Promotion-related prize, premium, reward or other benefit may not be combined with a benefit received in connection with any other Promotion. EXCEPT AS OTHERWISE EXPRESSLY STATED BY KAMINARIO, ANY PRIZE, PREMIUM, REWARD OF OTHER BENEFIT IS AWARDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR GUARANTEE FROM KAMINARIO, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
We reserve the right to modify, terminate or suspend the availability of Promotions and to correct errors or inconsistencies in Promotion-related materials. We may disqualify any individual who tampers with any Promotion or Promotion-related process. CAUTION: ANY ATTEMPT BY ANY INDIVIDUAL TO DELIBERATELY UNDERMINE THE LEGITIMATE OPERATION OF A PROMOTION IS A VIOLATION OF CRIMINAL AND CIVIL LAWS AND WE RESERVE THE RIGHT TO SEEK DAMAGES FROM SUCH INDIVIDUAL TO THE FULLEST EXTENT PERMITTED BY LAW.
7. LINKS TO OTHER SERVICES
The Services may contain links to third-party websites and services, including social media (collectively, “Linked Services”). Linked Services are not under the control of Kaminario and Kaminario is not responsible for Linked Services or for any information or materials on, or any form of transmission received from, any Linked Services. You access Linked Services at your own risk. The inclusion of a link does not imply endorsement by Kaminario of the Linked Services or any association with the operators of the Linked Services. Kaminario does not investigate, verify or monitor the Linked Services. Kaminario provides links to Linked Sites for your convenience only. Please check the URL address provided in your browser to see if you still are in the Services.
8. DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY
Kaminario warrants that Kaminario has validly entered into these Terms and has the legal power to do so. You warrant that you have validly entered into these Terms and have the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. Kaminario specifically disclaims all warranties and conditions of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, non-infringement, freedom from defects, uninterrupted use and all warranties implied from any course of dealing or usage of trade. Kaminario does not warrant that (a) the Services will meet your requirements, (b) operation of the Services will be uninterrupted or virus- or error-free or (c) errors will be corrected. Any oral or written advice provided by Kaminario or its authorized agents does not and will not create any warranty. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES WHICH MEANS THAT SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Your use of the Services is at your own risk.
YOU AGREE THAT KAMINARIO IS NOT LIABLE (Y) FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF KAMINARIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU ALSO AGREE THAT Kaminario IS NOT LIABLE FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES.
The disclaimers and limitations in this Section 8 do not purport to limit liability or alter any right cannot be excluded under applicable law.
IF FOR ANY REASON THE DISCLAIMERS OF WARRANTIES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN KAMINARIO’S MAXIMUM LIABILITY FOR ANY TYPE OF DAMAGES HEREUNDER SHALL BE LIMITED TO THE AMOUNT THAT YOU PAID TO KAMINARIO TO USE THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE EVENT THAT GAVE RISE TO THE LIABILITY.
You acknowledge and agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms and that we would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR”.
You agree to indemnify and defend Kaminario and its directors, officers, employees and agents from and against all losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees brought against Kaminario by any third party arising from your use of the Services, your Submissions or any breach or violation of these Terms, the rights of a third party or applicable law. Kaminario reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. No settlement that affects the rights or obligations of Kaminario may be made without Kaminario’s prior written approval.
10. GOVERNING LAW; DISPUTE RESOLUTION
If you are a resident of the United States or Any Other Country: All matters related to the Services are governed by the internal laws of the Commonwealth of Massachusetts, United States, as such laws apply to agreements made and performed therein (without giving effect to the principles of conflicts of laws). Any legal action or proceeding relating to your access to, or use of, the Services shall be instituted in a state or federal court in Suffolk County, Commonwealth of Massachusetts. You and Kaminario agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
If you are a resident of the European Union: These Terms shall be governed by and construed in accordance with U.K. law, without regard to its conflict of law principles. Notwithstanding anything in these Terms to the contrary, if you are an individual consumer who cannot resolve a dispute with Kaminario, you may have the right to submit a complaint through http://ec.europa.eu/consumers/odr.
You and Kaminario agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms.
YOU AND KAMINARIO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
Please Note: By agreeing to these Terms, you explicitly agree that any claims or actions that you may otherwise have against Kaminario under the laws of any jurisdiction outside the United States are hereby waived, including without limitation, any claims or actions under the laws of your own country, and that your sole location and applicable law for any disputes is in the United States according to the terms of this Section
10. This provision does not, however, apply if you reside in a jurisdiction that permits you to make your claim a legally competent court of the jurisdiction where you reside.
11. ELECTRONIC CONTRACTING
12. GEOGRAPHIC RESTRICTIONS
Our servers and operations are located primarily in the United States, and our policies and procedures are based primarily on United States law. The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or which that would subject Kaminario or its affiliates to any registration requirement within such jurisdiction or country.
You acknowledge that access to the Services may not be legal by certain persons or in certain countries and, if you access the Services from outside the United States, you are responsible for compliance with local laws. Specifically, (i) you consent to the transfer, storage, and processing of your information to and in the United States and/or other countries; (ii) you represent and warrant to Kaminario that you are not located in, under the control of, or a national or resident of any country subject to U.S. trade sanctions, (Supplement No. 1 to Part 740, Export Administration Regulations, Country Group E:1); and (iii) you agree to comply with all applicable federal laws, regulations and rules (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services available outside the United States.
13. US GOVERNMENT RIGHTS
The Services are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Services as are granted to all other users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
These Terms automatically terminate when you fail to comply with any term or condition of them. Kaminario may terminate or modify your access to the Services, with or without notice to you, at any time for any reason. For example, access to the Services may be denied without notice if Kaminario believes that you are a minor.
Termination will not limit any of Kaminario’s other rights or remedies. Sections 4, 8, 9, 10, 12, 15 and 16, as well as any other provision that must survive in order to give proper effect to the intent and purpose of these Terms, shall survive termination.
15. CLAIMS OF COPYRIGHT INFRINGEMENT
We respond to notices of alleged infringement as required by the U.S. Digital Millennium Copyright Act (“DMCA”), including by removing or disabling access to material claimed to be the subject of infringing activity. If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights otherwise have been violated in or through the Services, please send your claim or notice of infringement to our DMCA agent at email@example.com.
Our DMCA Agent will only respond to notices and inquiries that comply with the requirements of the DMCA. Please see www.copyright.gov for more information.
Upon receipt of notification complying with the DMCA, Kaminario will take steps to remove or disable access to any infringing material and remove or disable access to any link to infringing material. Notifications must include ALL of the following:
i. a physical or electronic signature of the persons authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
ii. a description of the copyrighted work that you claim has been infringed;
iii. a description of where in the Services the material that you claim is infringing is located;
iv. contact information reasonably sufficient to permit Kaminario to contact you;
v. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
vi. a statement by you, made under penalty of perjury, that the information in your notification to Kaminario is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
b. These Terms inure to the benefit of and will be binding upon Kaminario’s and your successors and assigns, respectively
c. These Terms may be assigned by Kaminario but you may not assign the Terms without the prior express written consent of Kaminario.
d. If any provision of these Terms is or becomes unenforceable or invalid, the remaining provisions will continue with the same effect as if such unenforceable or invalid provision had not been used. The English language version of these Terms will prevail over any translation.
e. If Kaminario fails or you fail to perform any obligation under these Terms and the other party does not enforce such obligation, the failure to enforce on any occasion will not constitute a waiver of any obligation and will not prevent enforcement on any other occasion.
f. Nothing contained in these Terms will be deemed to constitute Kaminario or you as the agent or representative of the other or as joint venturers or partners.
g. If Kaminario is or you are prevented from performing or unable to perform any obligation under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such cause.
h. Headings and captions are for convenience only.
If you have any questions about the Services or these Terms of Service, please contact us at firstname.lastname@example.org.
You can also write to us at:
75 Second Avenue
6th Floor, Suite 620
Needham, Massachusetts 02494
Copyright © 2016 Kaminario and/or its affiliates. All rights reserved.
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