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Last updated: 10/18/2010
Access to and Use of the Site
The Site contains information about KAPOW and its various products and services (collectively, "Products"). KAPOW reserves the right, for any reason, in its sole discretion and without notice to You, to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, information, data, text, graphics, messages or other materials ("Content"), features and/or hours of availability, and KAPOW will not be liable to You or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.
In order to access certain Content or otherwise use certain areas of the Site, KAPOW may require that You provide certain information about yourself and/or register with the Site. You agree to provide true, accurate, current and complete information as prompted by the applicable form(s). If you provide any information that is untrue, inaccurate, not current or incomplete, or KAPOW has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, KAPOW has the right to refuse any and all current or future use of the Site (or any portion thereof) by You. If You are required to register, You will designate a user name and password during the registration process. You are responsible for maintaining the confidentiality of the user name and password, and You are responsible for all activities that occur under your user name and password, whether or not authorized by You. KAPOW will not be liable for any loss or damage arising from your failure to comply with the foregoing.
KAPOW and/or its licensors own and retain all ownership and proprietary rights in and to the Site, including, without limitation, all intellectual property rights therein. You do not acquire any right, title or interest in and to the Site or any such intellectual property rights, other than the limited right to access and use the Site for purposes authorized by KAPOW. Unless otherwise restricted on the Site, You may download particular Content for your own informational purposes only, provided that You maintain and reproduce all proprietary rights notices on such downloads. Except as expressly authorized by KAPOW, You agree not to download, modify, duplicate, rent, lease, loan, sell, distribute or create derivative works based on the Site or its Content, in whole or in part, nor may You use any of these items for any commercial purposes.
Kapow Technologies and the KAPOW logo and other KAPOW product and service names are trademarks of KAPOW (the "KAPOW Marks"). You agree not to display or use the KAPOW Marks in any manner without KAPOW's express, prior written permission. Any other trademarks and proprietary designations displayed on the Site or in its Content are the property of their respective owners, as designated.
Certain areas of the Site may allow registered users to upload, post, publish and otherwise transmit Content (collectively, "User Content"). You understand and expressly agree that KAPOW assumes no responsibility or liability for any User Content, and that You are solely and entirely responsible for any User Content You provide on the Site. By uploading and posting User Content on the Site, You represent and warrant that: (a) You are the owner of such User Content or have been granted by the owner all the rights necessary to submit such User Content, and (b) such User Content will not infringe the intellectual property rights, or otherwise violate the rights, of any third party. KAPOW does not control User Content and, as such, assumes no responsibility for the accuracy, integrity or quality of such Content. KAPOW reserves the right to refuse to post and/or to remove any User Content on the Site at any time and for any reason. KAPOW is not responsible if the User Content contains any errors or omissions; is offensive, objectionable, defamatory or otherwise violates any intellectual property right or any other proprietary right of a third party; or for loss or damage of any kind incurred as a result of such User Content.
You will not, in connection with Your use of the Site: (a) upload, post, make available or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam" or any other form of solicitation; (b) upload, post, make available or transmit by means of the Site any material of any kind which violates, plagiarizes, or infringes the intellectual property or proprietary rights of any third party, or 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, hardware, or telecommunications equipment; (c) violate any applicable local, state, or federal law, rule or regulation; (d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (e) forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Site; (f) interfere with or disrupt the integrity or performance of the Site or disobey any requirements, procedures, policies, or regulations of networks connected to the Site; (g) attempt to gain unauthorized access to the Site; or (h) use the Site other than for the purposes authorized by KAPOW (collectively, "Prohibited Conduct").
THE SITE, INCLUDING, WITHOUT LIMITATION ALL CONTENT, IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. KAPOW AND ITS SUPPLIERS AND LICENSOR(S), IF ANY, EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS. KAPOW DOES NOT WARRANT THAT THE SITE, OR ANY CONTENT, WILL BE TIMELY, ACCURATE, SECURE, UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE WILL MEET USERS' EXPECTATIONS OR REQUIREMENTS.
Limitation of Liability
IN NO EVENT SHALL KAPOW, ITS AFFILIATES, SUPPLIERS, LICENSORS OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SITE, INCLUDING ANY CONTENT (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL KAPOW'S AGGREGATE LIABILITY FOR CLAIMS IN CONNECTION WITH THIS SITE, OR ITS USE OR THE INABILITY TO USE THE SITE, EXCEED FIFTY U.S. DOLLARS (US $50.00).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Links to Third Party Sites
The Site may provide links to other Internet sites or resources owned, controlled or operated by third parties. KAPOW has no control over or responsibility for such sites and resources, even if identified on the Site as a "partner" site. You agree that KAPOW is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. KAPOW provides these links to You only as a convenience. You acknowledge that your use of such sites or resources is governed by separate terms and privacy policies.
KAPOW will own, and You will and hereby do assign to KAPOW, any and all suggestions, ideas, enhancements requests, feedback, recommendations (“Feedback”) that You may provide to KAPOW relating to the Site or any Products. KAPOW shall be free to use, reproduce, disseminate, distribute and otherwise exploit such Feedback, including without limitation, any ideas, concepts, know-how, techniques or methods contained in such Feedback for any purpose and in any manner whatsoever, without limitation, and without providing any compensation to You.
KAPOW may, in its sole discretion, terminate your access to and/or use of the Site for any reason without prior notice. Upon any such termination, You must immediately cease any and all use of Site. You acknowledge and agree that KAPOW may immediately deactivate or delete your user account and all related information and files in your user account and/or bar any further access to the Site. KAPOW will not be liable to You or any third party for any termination of your access to the Site.
Entire Agreement; Modification
The Terms constitute the entire agreement between KAPOW and You with respect to terms and conditions applicable to your access to and use of the Site and supersedes any other prior or contemporaneous understandings or agreements (whether oral or written) between KAPOW and You regarding such subject matter. The Terms may not be modified, supplemented, or amended, except by KAPOW. All captions and headings in the Terms are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. All waivers hereunder must be in writing, and no failure by either party to enforce any rights hereunder shall constitute a waiver of such right then or in the future.
The Terms may not be assigned by You without the prior written consent of KAPOW. Any unauthorized assignment or transfer shall be null and void. The Terms shall inure to the benefit of and be binding upon each party's permitted successors and assigns. The validity, interpretation, construction and performance of the Terms shall be governed by the laws of the State of California, excluding its conflict of laws principles. The California state courts of Santa Clara County, California (or, if federal courts have exclusive jurisdiction, the United States District Court for the Northern District of California) shall have exclusive jurisdiction and venue over any dispute arising out of or relating to the Terms, and each party hereby consents to the jurisdiction and venue of such courts. If for any reason a court of competent jurisdiction finds any provisions of the Terms, or portion thereof, to be unenforceable, that provision of the Terms will be enforced to the maximum extent permissible so as to effect the economic intent of the parties, and the remainder of the Terms will continue in full force and effect.