Kilterly, LLC

Terms of Service Agreement

Effective Date:  October 10, 2018

PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND KILTERLY, LLC, AN IOWA LIMITED LIABILITY COMPANY (“KILTERLY,” “WE,” OR “US”).

By accessing or using www.kilterly.com (or any successor domain(s) thereto), or any subdomain or page thereof, and/or accessing, using, downloading or installing any other website, mobile application or other digital property with an authorized link or reference to this Agreement (each of the foregoing, a “Kilterly Digital Property”), or registering an account or accessing or using any content, information, services, software, features or resources available or enabled via any Kilterly Digital Property (collectively with the Kilterly Digital Properties, the “Services”), including but not limited to clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. If you do not agree to be bound by this Agreement, you may not access, download, post information to, obtain information from or otherwise use the Services and you must discontinue use of the Services immediately.

Your use of the Services is also subject to Kilterly’ s Privacy Policy, any additional terms, conditions and policies that we may from time to time separately post on the Kilterly Digital Properties (“Supplemental Terms”) which are incorporated by reference into this Agreement. Some of the specialized features and tools accessible through our Services are provided by third-party companies pursuant to their own separate Terms of Service (“Third-Party Terms”) that differ from ours.  By using such third-party features and tools, you agree that your relationships with the third-party service providers will be governed by the applicable Third-Party Terms.

 

Kilterly reserves the right to modify this Agreement or Kilterly’s policies relating to the Services at any time, effective upon posting of an updated version of this Agreement, and/or Kilterly’s Privacy Policy, and/or any applicable Supplemental Terms on any of the Kilterly Digital Properties. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes, and Kilterly is not required to give specific notice of such changes to you other than the posting any of the Kilterly Digital Properties of the updated terms containing such changes.

  1. Registration.When registering an account for the Services (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary, including but not limited to immediately updating any Registration Data that becomes false or incorrect after it is submitted. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities, whether or not authorized by you, that occur under your Account or using your login credentials. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Kilterly immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. Kilterly reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Kilterly. For the avoidance of doubt, this Agreement applies to any and all uses of the Services by you, whether or not you create an Account or access the Services using your Account.
  2. Disclaimer of Content/Information Warranties. We strive to use reasonable efforts to include information on the Services that is accurate and current, however, we cannot and do not guarantee the accuracy, completeness or authenticity of any information on the Services and the Services and the information provided thereon and thereby is presented “as-is”, “where-is” and “with all faults” and without warranty of any kind, including but not limited to any warranty as to accuracy, authenticity or completeness of information. Further, the information on the Services may include certain information or content submitted by third parties, whether or not expressly identified as having been submitted by third parties (such information and content, collectively, “Third Party Information”). You acknowledge and agree that we are not in a position to control or confirm any Third Party Information, including but not limited to the accuracy or completeness thereof, and that therefore any use or reliance on Third Party Information by you is solely at your own risk.

 

  1. Third Party Links. The Services may from time to time display or otherwise provide links to websites or other digital properties controlled by persons or entities other than Kilterly (“Third Party Links”). When you click on a Third Party Link, we will not warn you that you have left the Services. Kilterly does not control and is not responsible for Third-Party Links or any content or other material that you may encounter by clicking on a Third Party Link. Kilterly provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is solely at your own risk you hereby agree to assume all such risks.

 

  1. Subscriptions. Certain of the Services offered by Kilterly require a subscription and/or payment of fees in order to enable your use of such Services (“Paid Services”). Prior to using or accessing any Paid Services, you must complete, execute and deliver a Software as a Services and Subscription Agreement in a form prescribed by Kilterly for such Paid Services (“Subscription Agreement”). In addition to the obligations set forth in this Agreement, you agree to at all times comply with all of your obligations (including but not limited to payment obligations) set forth in any Subscription Agreement to which you or your company or organization is a party. Subscription Agreements completed and submitted by you will not be considered approved or effective unless and until approved by Kilterly, in its sole discretion. Kilterly reserves the right to decline to enter into a Subscription Agreement with you for any reason, and in such case you will not be permitted to use the Paid Services. Failure by you and/or your company or organization and/or other users affiliated with you or your company or organization may result in the suspension or termination by Kilterly of your access to and ability to use the Paid Services.
  2. Feedback.You agree that your submission of any ideas, suggestions and/or proposals to Kilterly (“Feedback”) is at your own risk and that Kilterly has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Kilterly the right to use any Feedback in any way at any time without any additional approval or compensation, and you hereby waive any right that you may have to any such compensation.
  3. Ownership of and License to Use the Services.

6.1 Use of the Services. Kilterly and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Kilterly grants you a limited, non-exclusive, revocable license to use the Services, except for Paid Services, solely for their intended purposes. With respect to Paid Services, your rights (if any) to use Paid Services shall be solely as set forth in the Subscription Agreement between you and Kilterly and shall further be subject to your compliance with your obligations under such Subscription Agreement. Any future release, update or other addition to the Services shall be subject to this Agreement and/or the Subscription Agreement (as applicable). Kilterly, its suppliers and service providers reserve all rights not granted in this Agreement.

6.2 Trademarks. Kilterly’s name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Kilterly and may not be used without Kilterly’s permission for any purpose, including but not limited to in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

  1. Restrictions on Use of Services. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, logo or Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Kilterly’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services and you shall not otherwise misappropriate Kilterly’s or its suppliers’ intellectual property rights; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by Kilterly pursuant to this Agreement, and Kilterly has no obligation to give you any notice of such termination.
  2. Indemnification.You agree to indemnify and hold Kilterly, its affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each of the foregoing (collectively, the “Kilterly Parties”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) of any nature whatsoever, expressly including but not limited to consequential damages, losses and costs, relating to or arising out of any claims concerning: (a) your use or misuse of the Services; (b) your violation of this Agreement; (c) your violation of any rights of another party, including any users; or (d) your violation of any applicable laws, rules or regulations. Kilterly 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 Kilterly in asserting any available defenses. This provision does not require you to indemnify any of the Kilterly Parties for any unconscionable commercial practice by the Kilterly Parties or for the Kilterly Parties’ gross negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this Section will survive any termination of your Account, this Agreement or your access to the Services.
  3. Disclaimer of Warranties and Conditions.YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KILTERLY AND THE OTHER KILTERLY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES AND PRODUCTS. KILTERLY AND THE OTHER KILTERLY PARTIES MAKE NO WARRANTY, REPRESENTATION OR GUARANTEE THAT: (1) THE SERVICES OR ANY PRODUCTS WILL MEET YOUR REQUIREMENTS OR (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR (3) THE SERVICES ARE OR WILL BE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS. ANY TRANSMISSION OF INFORMATION (INCLUDING BUT NOT LIMITED TO PERSONAL INFORMATION) IS AT YOUR OWN RISK. KILTERLY IS NOT RESPONSIBLE FOR CIRCUMVENTION OF ANY PRIVACY SETTINGS OR SECURITY MEASURES CONTAINED ON THE SERVICES OR ANY UNAUTHORIZED INTRUSIONS INTO THE SERVICES (INCLUDING BUT NOT LIMITED TO VIA HACKING, ETC).

IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH OUR PRODUCTS OR SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.

OUR PRODUCTS AND SERVICES ARE PROVIDED WITH THE UNDERSTANDING THAT KILTERLY IS NOT ENGAGED IN RENDERING LEGAL, MEDICAL, COUNSELING OR OTHER PROFESSIONAL SERVICES OR ADVICE. OUR PRODUCTS AND SERVICES ARE NO SUBSTITUTE FOR PROFESSIONAL SERVICES OR ADVICE.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, THEN THE DISCLAIMERS SET FORTH HEREIN SHALL BE CONSTRUED TO COMPLY WITH SUCH LAWS, AND SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

  1. Limitation of Liability.

10.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE KILTERLY PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT THE KILTERLY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Cap on Liability.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE KILTERLY PARTIES ARE LIABLE TO YOU EXCEED THE GREATER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO KILTERLY BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100).

10.3 Storage of Content and Settings. THE KILTERLY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT OR PERSONALIZATION SETTINGS.

10.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KILTERLY AND YOU.

10.5 Exclusions. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SHALL BE CONSTRUED TO COMPLY WITH SUCH LAWS AND SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.

  1. Procedure for Making Claims of Copyright Infringement.If you believe content posted on the Services infringes your copyright rights, please provide us with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Correspondence regarding notice of claims of copyright infringement should be addressed to:

 

Kilterly, LLC

Attn: Chris Arringdale

5133 NE Seneca Dr

Ankeny, IA 50021

  1. Termination.At its sole discretion, Kilterly may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Kilterly reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and you shall not be relieved of liability for any breach of this Agreement. All of your obligations and Kilterly’s rights that should by their nature survive termination of your use of the Services, including but not limited to your warranty and indemnification obligations, the disclaimers and limitations on the Kilterly Parties’ liability, and the rights and license granted by you related to Feedback, shall survive and continue in full force and effect.
  2. International Users.The Services are controlled and offered by Kilterly from its facilities in the United States of America. Kilterly makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and their own risk and are responsible for compliance with local law.
  3. Dispute Resolution

 

14.1     Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Iowa and the United States of America, without regard to any conflicts of laws principles. The state and federal courts sitting in Polk County, Iowa shall have sole and exclusive jurisdiction over any and all disputes arising out of or related to this Agreement and/or the Services (including but not limited to your use thereof) and you hereby irrevocably consent to the sole and exclusive jurisdiction of such courts and hereby waive any right you may have to object to venue in or transfer venue from such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

14.2      Waiver of Jury Trial. YOU AND KILTERLY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS YOU MAY HAVE TO A JURY TRIAL AND HEREBY AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES SHALL BE DECIDED BY A JUDGE OF A COURT OF COMPETENT JURISDICTION SITTING IN POLK COUNTY, IOWA.

14.3 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES RELATED TO THIS AGREEMENT AND/OR THE SERVICES MUST BE ADJUDICATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE COMINBED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

  1. General Provisions.

15.1 Electronic Communications. The communications between you and Kilterly use electronic means, whether you visit the Services or send Kilterly e-mails, or whether Kilterly posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Kilterly in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Kilterly provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.

15.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Kilterly’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

15.3 Force Majeure. Kilterly shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

15.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us using the contact information available on the Services. We will do our best to address your concerns.

15.5 Notice. Where Kilterly requires that you provide an e-mail address, you are responsible for providing Kilterly with your most current e-mail address. In the event that the last e-mail address you provided to Kilterly is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Kilterly’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Kilterly at the following address: 5133 NE Seneca Drive, Ankeny, IA 50021 or support@Kilterly.com. Such notice shall be deemed given when received by Kilterly by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address, or, if sent by e-mail, when receipt is confirmed by Kilterly’s e-mail system.

15.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

15.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

15.10 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you 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. You also will not use the Services for any purpose prohibited by U.S. law.

 

15.11 Entire Agreement. This Agreement, together with Kilterly’s Privacy Policy, any applicable Supplemental Terms and Third Party Terms, and (if applicable) the Subscription Agreement, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.