Statement Regarding Terms & Conditions
This Terms of Service Agreement (this “Agreement”) explains the terms and conditions that apply to your use of the D7kni Service (described below) and constitutes a legally binding agreement between you and D7kni. (“D7kni”, “we”, “us” or “our”). By accepting this Agreement or using the D7kni Service, you acknowledge that you have read, understood, and agree to be bound by all the terms and conditions in this agreement (“Agreement”). If you do not agree with this Agreement, you must not accept this Agreement and may not use the D7kni Service.
1. Terms Of Service
We may at our discretion change the terms of this Agreement and will post a copy of the amended Agreement on the Site (as described below). Such changes shall be effective upon posting by us, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If you do not agree to, or cannot comply with the Agreement, as amended, then you must stop using the D7kni Service. We encourage you to check www.D7kni.com/terms frequently.
2. The D7kni Service
The “D7kni Service” consists of (a) our online guide designed to simplify finding jokes and funny pictures and videos, (b) the website located at www.D7kni.com (the “Site”), (c) all software (including the Software, as defined below), data, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”), (d) our applications and (e) any updates, additional features and functionality that D7kni may offer.
3. Changes To Your D7kni Service
D7kni may at its discretion and from time to time change, add or remove features and functionality of the D7kni Service without notice. D7kni reserves the right to discontinue some or all of the features of the D7kni Service at any time at its discretion (including the provision of updates). Additionally, a given D7kni subscription may support different features and functionality, and D7kni is under no obligation to provide all features and functionality with your subscription. You agree that D7kni shall not be liable to you or to any third party for any modification, suspension or discontinuance of the D7kni Service.
5. Using The D7kni Service
The D7kni Service is provided only for your personal, non-commercial use. You may not transfer the D7kni Service to a third party.
You agree you will not:
- sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the D7kni Service available to any third party, in whole or in part;
- use the D7kni Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the D7kni Service or its components;
- modify, adapt, circumvent or hack the D7kni Service to, or otherwise attempt to gain unauthorized access to the D7kni Service or its related systems or networks; or
- use the D7kni Service in any way that violates this Agreement.
You agree you will comply with any codes of conduct, policies or other notices D7kni provides you or publishes in connection with the D7kni Service, and you shall promptly notify D7kni if you learn of a security breach related to the D7kni Service. You agree and warrant that you will comply with all laws, rules and regulations in connection with your use of the D7kni Service (including, but not limited to traffic laws and rules when using the D7kni Service in a vehicle), and you will not use the D7kni Service in any manner that violates such laws, rules or regulations.
6. Mobile Services and other Requirements
The D7kni Service includes certain services that are available via a mobile device, including (i) the ability to browse the D7kni Service from a mobile device and (ii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the D7kni Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
In addition, you will be responsible for providing any other the equipment, hardware, software and services necessary to use the D7kni Service.
7. Third party content Is Copyrighted and Protected
You acknowledge and agree that Third Party Content is the copyrighted material of the third party that supplies it, is protected by U.S. copyright law and other applicable laws, and may not be reproduced, used to prepare derivative works, distributed, performed publicly or displayed publicly without the written permission of the third party that supplied it, except as permitted by applicable law.
8. Advertisements, Sponsorships, Promotions and Other Partnerships
D7kni may display advertisements for the goods and services of third parties or other promotional materials on the Site or via the D7kni Service. Your dealings with, or participation in promotions of any third-party advertisers via the D7kni Service are solely between you and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion. D7kni does not endorse or represent such third parties and is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the D7kni Service.
The D7kni Service may also present links to third-party web sites or third-party services not owned or operated by us. We do not endorse or represent such third parties and we are not responsible for the availability of these third-party sites or services or their content. You agree that we are not responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as a result of your use of or reliance on any content of any such third-party site or services or goods or services available through any such third-party site or service. Portions of the content are copyright © of Gracenote or its providers.
9. Eligible Users
You must be at least 18 years of age to use the D7kni Service. Children over the age of 13 may use the D7kni Service only if their parent or legal guardian accepts and agrees to the terms and conditions of this Agreement on their behalf and thereby assumes full responsibility for the child’s use of the D7kni Service.
10. Special Notice for International Use; Export Controls:
Software (defined below) available in connection with the D7kni Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the D7kni Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the D7kni Service, including as it concerns online conduct and acceptable content.
11. Your Content and Code of Conduct
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the D7kni Service (“Your Content”).
You agree to not use the D7kni Service to post, email or otherwise transmit or provide links to any content that:
- is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful racially, ethnically or otherwise objectionable;
- you do not have a right to transmit under any law or under contractual or fiduciary relationships; poses or creates a privacy or security risk to any person;
- infringes any intellectual property or other proprietary rights of any party;
- misrepresents who you are or misrepresents your affiliation with another person or entity if the intent is to mislead, deceive or defraud others;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- in the sole judgment of D7kni, is objectionable or which restricts or inhibits any other person from using or enjoying the D7kni Service, or which may expose D7kni or its users to any harm or liability of any type.
By posting Your Content on or through the D7kni Service, you hereby do and shall grant D7kni a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the D7kni Service. D7kni has the right, but not the obligation, to monitor the D7kni Service, Content, or Your Content. You acknowledge that D7kni may establish general practices and limits concerning use of the D7kni Service, including without limitation the maximum period of time that Your Content, data or other content will be retained by the D7kni Service and the maximum storage space that will be allotted on D7kni’s servers on your behalf. You acknowledge and agree that D7kni may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of D7kni, its users and the public.
You understand that the operation of the D7kni Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to D7kni’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the D7kni Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. D7kni will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
14. Termination Of Service
You may terminate this Agreement, and your right to use the D7kni Service, at any time and for any reason or no reason, by contacting D7kni Customer Support at support@D7kni.com. Notwithstanding anything to the contrary in this Agreement, D7kni retains the right to immediately suspend or terminate your account if you breach any provision in this Agreement. In addition, D7kni reserves the right to terminate your account and this Agreement for any other reason or no reason, with or without notice to you. All of Your Content on the D7kni Service (if any) may be permanently deleted by D7kni upon any termination of your account in its sole discretion.
15. License Grant and Intellectual Property
You may be required to use certain software programs to use or have full access to certain features of the D7kni Service. Any software that may be made available by D7kni in connection with the D7kni Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
Subject to the terms and conditions of this Agreement, D7kni hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on devices solely in connection with your personal non-commercial use of the D7kni Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. Your use of the Software is subject to the terms of this Agreement. As between you and D7kni, D7kni retains title to and ownership of the Software, D7kni copyrights and trademarks, and all Content provided or made available in connection with the D7kni Service. In the case of any third party software provided to you by D7kni, the applicable third party retains title to and ownership of its software and intellectual property rights. You acknowledge and agree that the D7kni Service may contain content (“Service Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by D7kni, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the D7kni Service or the Service Content, in whole or in part, except that the foregoing does not apply to Your Content (as defined above) that you legally upload to the D7kni Service. In connection with your use of the D7kni Service you shall not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Service Content other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by D7kni.
You agree to defend, indemnify and hold harmless D7kni from and against any and all claims, proceedings, injuries, liabilities, losses, costs and expenses (including reasonable attorney’s fees) relating to or arising out of your breach of any term of this Agreement, Your Content, or your use, access or misuse of the D7kni Service. D7kni shall provide notice to you of any such claim, suit or demand. D7kni reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting D7kni’s defense of such matter.
17. Representations and Warranties.
You represent and warrant to D7kni that (i) you have full power and authority to enter into this Agreement; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow D7kni to perform its obligations) in connection with the D7kni Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the D7kni Service, and D7kni’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
18. Warranty Disclaimer
YOU UNDERSTAND AND AGREE THAT THE D7kni SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. D7kni MAKES NO WARRANTY THAT THE D7kni SERVICE WILL MEET YOUR REQUIREMENTS, ALLOW YOU TO ACCESS ANY PARTICULAR PROGRAMMING, OR THAT YOUR USE OF THE D7kni SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR ERROR-FREE; NOR DOES D7kni MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE D7kni SERVICE (INCLUDING THIRD PARTY CONTENT), THAT ANY DEFECTS IN THE D7kni SERVICE WILL BE CORRECTED OR THAT THE SOFTWARE OR D7kni SERVICE WILL BE COMPATIBLE WITH ANY OTHER HARDWARE OR SERVICE. D7kni SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT THE D7kni SERVICE, THE SOFTWARE, OR OTHER HARDWARE. D7kni AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE D7kni SERVICE OR THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE LIMITATIONS IN THIS AGREEMENT MAY NOT APPLY TO YOU. IN THESE STATES, D7kni’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
19. Limitations of D7kni’s Liability
IN NO EVENT AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL D7kni OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, USE OF USER INFORMATION, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO YOUR USE OF THE D7kni SERVICE OR USE OF THE D7kni SERVICE THROUGH YOUR ACCOUNT BY A THIRD PARTY, EVEN IF D7kni HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL D7kni’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY, FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW, EXCEED THE AGGREGATE AMOUNT YOU PAID TO D7kni IN THE PRECEDING TWELVE MONTHS OR, IF GREATER, ONE HUNDRED DOLLARS ($100). YOU UNDERSTAND THAT THESE LIMITATIONS OF D7kni’S AND D7kni’S SUPPLIERS’ LIABILITY ARE A FUNDAMENTAL PART OF THIS AGREEMENT.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. D7kni will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to copyright@D7kni.com (subject line: “DMCA” Takedown Request”).
Notice: To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
Counter-Notice: If you believe that the relevant Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received, D7kni will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at D7kni’s sole discretion. Repeat Infringer Policy: In accordance with the DMCA and other applicable law, D7kni has adopted a policy of terminating, in appropriate circumstances and at D7kni ‘s sole discretion, members who are deemed to be repeat infringers. D7kni may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
At D7kni’s or your election, all disputes, claims, or controversies arising out of or relating to the Agreement or the D7kni Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in San Francisco, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Agreement. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Agreement, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.