Terms of Service
Last Revised: May 17, 2019
Modifications to the Terms of Service
The Open Kimono, in its sole and absolute discretion, may make changes or modifications to the Site or to this Agreement (including any policies or agreements which are incorporated by reference herein) at any time and without prior notice to you, and such changes or modifications shall be effective immediately upon posting to this Site. You acknowledge and agree that (i) The Open Kimono may notify you of such changes or modifications by posting them to this Site and (ii) your use of this Site or the Services after such changes or modifications have been made (as indicated by the “Last Revised” date at the top of this page) shall constitute your acceptance of this Agreement as last revised. In addition, The Open Kimono may occasionally notify you of upcoming changes or modifications to this Agreement by email. We, therefore, recommend that you keep your account information including, but not limited to, your email address, current.
This Site and the Services found at this Site are available only to Users who can form legally binding contracts under applicable law. By using this Site or the Services found at this Site, you represent and warrant that you are at least eighteen (18) years of age.
If you are visiting this Site from a country other than the country in which our servers are located, your communications with us may result in the transfer of information (including your User information) across international boundaries. By visiting this Site and communicating electronically with us, you consent to such transfers.
You may be asked to register in order to use certain Services including, but not limited to, The Open Kimono’s newsletters. You agree to provide accurate, current and complete information about yourself as requested or directed on the Services and to promptly update this information to maintain its accuracy. The Open Kimono has the right to suspend or terminate your registration and to refuse any and all current or future use of the Services if it suspects that such information is inaccurate or incomplete.
Your Use of the Site and Services
You acknowledge and agree that:
Your use of the Site and the Services including any content you submit will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations. You will not impersonate another User, or collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent. You will not use this Site or the Services in a manner (as determined by The Open Kimono in its sole and absolute discretion): that is illegal, infringing, defamatory, harassing, abusive; that violates the privacy or publicity rights of another User or any other third party, or that is otherwise objectionable. You will not use this Site or the Services for hate speech, hate crimes or violence. You will not use this Site or the Services: to send spam or other unsolicited bulk email; for computer or network hacking or cracking; or to transmit any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality or security of the Site or the Services. You will not copy or distribute in any medium any part of the Site or the Services, except where expressly authorized by The Open Kimono. You will not access The Open Kimono Content or User Content (as those terms are defined below) through any technology or means other than through this Site itself, or as The Open Kimono may designate. You will not use this Site or the Services found at this Site, including any of The Open Kimono’s related technologies, for any commercial use without The Open Kimono’s express prior written consent. The Open Kimono reserves the right to modify, change, or discontinue any aspect of this Site or the Services found at this Site at any time.
The content on this Site and the Services found at this Site, including without limitation the text (such as the articles found on our blog or in our newsletter), software, scripts, source code, API, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein (“The Open Kimono Content”), are owned by or licensed to The Open Kimono in perpetuity, and are subject to copyright, trademark, and/or patent protection in the United States and foreign countries, and other intellectual property rights under United States and foreign laws. The Open Kimono Content is provided to you “as is”, “as available” and “with all faults” for your information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of The Open Kimono. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement. The Open Kimono reserves all rights not expressly granted in and to The Open Kimono Content, this Site and the Services found at this Site, and this Agreement do not transfer ownership of any of these rights.
The Site and the Services have been specially designed to present The Open Kimono Content in a unique format and appearance. We are concerned about the integrity of The Open Kimono Content when it is viewed in a setting created by a third party that includes advertising or other materials that we have not authorized to be displayed with our content. Neither you nor any third party shall make use of The Open Kimono Content in any manner that constitutes an infringement of our rights, including copyright, or that has not been authorized by us.
Our Use of User Content
Some of the features of this Site or the Services found at this Site may allow Users to view, post, publish or share their ideas, opinions, preferences or feedback (e.g., through a “like” or “comment” function) relating to The Open Kimono’s news articles or current events (“User Content”). By posting or publishing User Content to this Site or to the Services found at this Site, you represent and warrant to The Open Kimono that: (i) you have all necessary rights to distribute User Content, either because you are the sole author and owner of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content; and (ii) you do not violate the rights of any third party. You shall be solely responsible for any and all of your User Content and the consequences of, and requirements for, distributing it.
The Open Kimono has no obligation, either express or implied, to treat your User Content as confidential, to develop or use your User Content and no compensation is due to you or to anyone else for any intentional or unintentional use of your User Content. You acknowledge and agree that The Open Kimono may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
If you post or publish your User Content to this Site, you authorize The Open Kimono to use the intellectual property and other proprietary rights in and to your User Content to enable inclusion and use of the User Content in the manner contemplated by this Site and this Agreement. Accordingly, you hereby grant The Open Kimono a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content in connection with this Site and The Open Kimono’s business, including without limitation for promoting and redistributing all or part of this Site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party. The above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete your User Content from this Site. You understand and agree, however, that The Open Kimono may retain (but not distribute, display, or perform) server copies of your User Content that have been removed or deleted unless you expressly request full removal of your User Content.
With your permission, The Open Kimono may access your email contacts and send emails on your behalf. We only store the email addresses you share, and only for email sending purposes.
Our Monitoring of User Content
The Open Kimono reserves the right, but has no obligation, to pre-screen User Content and decide whether any item of User Content is appropriate and/or complies with this Agreement. The Open Kimono may remove any item of User Content and/or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by The Open Kimono in its sole and absolute discretion), at any time and without prior notice. If The Open Kimono terminates your access to this Site or the Services found at this Site, The Open Kimono may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
The Open Kimono has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (“DMCA”). It is The Open Kimono’s policy to (a) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers or Users; and (b) remove and discontinue service to repeat offenders.
Written Notification. The Open Kimono will respond to notices of alleged infringement regarding third-party material sent pursuant to and in accordance with the DMCA, which may include The Open Kimono removing or disabling access to Third Party material claimed to be the subject of infringement or other activity. Written notification must be submitted to the Designated Agent at the address identified in Address for Notice section below. All notices sent to The Open Kimono regarding matters other than informing The Open Kimono that a party’s copyrighted material may have been infringed as a result of third party materials will not receive a response through this process. In order to be effective, your infringement notification must include the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single web site are covered by a single notification, a representative list of such works at that web site; Identification of the material (i.e., the third party materials) 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 The Open Kimono to locate the material; Information reasonably sufficient to permit The Open Kimono to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted; A statement, as follows: “I 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, as follows: “The information in this notification is accurate, and under penalty of perjury, I swear that I am the copyright owner or that I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Upon receipt of a valid written notification containing the information as outlined above, The Open Kimono shall, (1) remove or disable access to the Third Party Content that is alleged to be infringing; (2) forward the written notification to the alleged infringer (the “Subscriber”); (3) take reasonable steps to promptly notify the Subscriber that it has removed or disabled access to the Third Party Content.
Counter Notification. To be effective, a Counter Notification must be a written communication provided to The Open Kimono’s Designated Agent that includes substantially the following:
A physical or electronic signature of the Subscriber; Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; A statement, as follows: “I swear under penalty of perjury that it is my good faith belief that the material identified above was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled”; and The Subscriber’s name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the Subscriber’s address is located, or if the Subscriber’s address is outside of the United States, for any judicial district in which The Open Kimono may be found, and that the Subscriber will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a valid Counter Notification containing the information as outlined above, the DMCA provides that the removed material will be restored or access re-enabled and The Open Kimono will comply with this requirement within a reasonable time (or as otherwise required by law), provided The Open Kimono’s Designated Agent has not received notice from the original complaining party that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on The Open Kimono’s network or system.
Links to Third-Party Websites
This Site and the Services found at this Site may contain links to third-party websites that are not owned or controlled by The Open Kimono. These links are provided solely as a convenience to you and do not constitute an endorsement by The Open Kimono of the content on such websites nor of the business practices of those operating those websites. The Open Kimono has no control over and assumes no responsibility for the content, terms, and conditions, privacy policies, or practices of any third-party websites. In addition, The Open Kimono does not censor or edit the content of any third-party websites. By using this Site or the Services found at this Site, you expressly release The Open Kimono from any and all liability arising from your use of any third-party website. Accordingly, The Open Kimono encourages you to be aware when you leave this Site or the Services found at this Site and to review the terms and conditions, privacy policies, and other governing documents of each other website that you may visit.
To the maximum extent permitted by law, you agree to indemnify and hold harmless The Open Kimono, its and affiliates, and their directors, officers, managers, employees, shareholders, agents, and licensors, from and against all claims, demands, disputes, losses, expenses, damages, and costs, including reasonable attorneys’ fees, arising out of or in relation to these Terms or your use of the Services. The Open Kimono reserves the right to assume the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.
Disclaimer of Warranties and Limitation of Liability
Your access to and use of these Services is at your sole risk. If you are dissatisfied with any of the materials contained on the Site or in the Services, or with any of these Terms, your sole and exclusive remedy is to discontinue accessing and using the Site and/or Services.
THE SERVICES ARE AVAILABLE “AS IS.” THE OPEN KIMONO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, AND INACCURACIES IN THE NEWS, INFORMATION, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICES. WE DO NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES OR ANY INFORMATION OR GOODS THAT ARE AVAILABLE OR ADVERTISED OR SOLD THROUGH THE SERVICES. WE DO NOT PROVIDE OR AUTHORIZE THE PROVISION OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL ADVICE THROUGH THE SERVICES, AND SO WE DISCLAIM ANY RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL INFORMATION THAT IS CONTAINED WITHIN THE SERVICES; RATHER THAN RELYING ON THIS INFORMATION, YOU SHOULD SEEK ADVICE FROM A QUALIFIED PROFESSIONAL. WE DO NOT MAKE ANY REPRESENTATIONS REGARDING, NOR DO WE ENDORSE THE ACCURACY, COMPLETENESS, TIMELINESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, OR OTHER MATERIAL OR DATABASE DISPLAYED, UPLOADED, OR DISTRIBUTED IN THE SERVICES OR AVAILABLE THROUGH LINKS IN THE SERVICES. WE RESERVE THE RIGHT TO CORRECT ANY ERRORS OR OMISSIONS IN THE SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES, WORMS, “TROJAN HORSES,” OR OTHER DESTRUCTIVE MATERIALS TO THE SERVICES, WE DO NOT GUARANTEE OR WARRANT THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED FROM THE SERVICES DO NOT CONTAIN SUCH DESTRUCTIVE FEATURES. WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO SUCH FEATURES. IF YOU RELY ON THE SERVICES OR ANY MATERIALS AVAILABLE THROUGH THE SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK.
The Open Kimono, its affiliates, and their directors, officers, managers, employees, shareholders, agents, and licensors are not liable for incidental, indirect, consequential, special, punitive, or exemplary damages of any kind, including lost revenues or profits, loss of business, or loss of data, in any way related to the Services or for any claim, loss, or injury based on errors, omissions, interruptions, or other inaccuracies in the Services (including without limitation as a result of breach of any warranty or other term provided in these Terms). Any claim against us shall be limited to the amount you paid, if any, for use of the Services.
Limitation of Liability in Certain States
CERTAIN STATE LAWS IN THE UNITED STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. IN SUCH STATES, OUR LIABILITY AND THAT OF OUR THIRD PARTY CONTENT PROVIDERS AND OUR AND THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Except for disputes arising from an alleged violation of intellectual property rights or breach of confidentiality, for which the injured party may suffer irreparable harm and may seek a restraining order, preliminary injunctive relief, an injunction, specific performance or other equitable relief and/or legal remedies, and actions to enforce the decisions of the arbitrators, for which action may be taken in any court of competent jurisdiction, in the County of San Francisco, in the State of California, and you hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) waive the right to trial by jury in any such action or proceeding that takes place relating to or arising out of this Agreement, all disputes arising out of or related to this Agreement, including the scope, the construction or application of this Agreement, shall be resolved by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in force. Any controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party, unless agreed to by The Open Kimono at it sole discretion. The arbitration hearings and all meetings pursuant to this section shall be held in San Francisco County, in the State of California. If the parties cannot agree upon a single arbitrator within twenty (20) calendar days after demand by either of them, each party shall select one arbitrator knowledgeable about Internet commerce in California, and notify the other of its selection, and such two arbitrators shall select a third from a list of arbitrators (with knowledge of the Internet industry) qualified by the American Arbitration Association in California. If this procedure for selecting arbitrators fails, then a neutral arbitrator based in New York with knowledge of Internet commerce in California shall be selected by the American Arbitration Association to resolve the dispute. The arbitrator(s) shall conduct a hearing within sixty (60) days after their selection. A majority of the arbitrators (if there is more than one pursuant to this clause) shall determine the decision/award, which shall be rendered within ten (10) days after the completion of the hearing. The decision of the arbitrator(s) shall be final and binding upon the parties both as to law and to fact, and shall not be appealable to any court in any jurisdiction. The parties shall share the expenses of the arbitrators equally. Nothing in any indemnification provision hereunder shall be construed as having any bearing on the award of attorney’s’ fees or arbitrators’ fees under this section.
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws principles. The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
If you have any questions about this Agreement, please contact us via email firstname.lastname@example.org or regular mail at the following address:
KOM Media LLC
PO Box 52
Apopka, FL 32704