The terms and conditions set forth below (the “End User License Agreement”) form a legally binding agreement between Kinetiq, Inc. (“Kinetiq”) and the end user (“Customer”) who receives services (“Services”) which include or incorporate, access to data provided by Kinetiq (such services, collectively, the “Add-On Services”), which may include broadcast media content, including video content (“Video”). The Customer must execute, or otherwise affirmatively agree in writing to be bound by, this End User License Agreement without modification prior to receiving access to or using the Add-On Services. In the event of any conflict or inconsistency between this End User License Agreement and any terms or conditions of Customer’s contract with the entity providing the Add-On Services to Customer (the “Customer Agreement”), the End User License Agreement shall prevail solely with respect to the Add-On Services. BY CLICKING ON “I AGREE,” “I ACCEPT” OR AN EQUIVALENT MESSAGE, CUSTOMER ACCEPTS THE TERMS OF THIS END USER LICENSE AGREEMENT WITHOUT MODIFICATION AND AGREES TO BE BOUND BY THEM. IF CUSTOMER DOES NOT ACCEPT THIS END USER LICENSE AGREEMENT, CUSTOMER MAY NOT ACTIVATE OR USE THE ADD-ON SERVICES. IF AN INDIVIDUAL IS ACCEPTING THIS END USER LICENSE AGREEMENT ON BEHALF OF THEIR EMPLOYER, SUCH INDIVIDUAL WARRANTS AND REPRESENTS TO KINETIQ THAT THEY HAVE SUFFICIENT AUTHORITY TO BIND THEIR EMPLOYER TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT.
- CUSTOMER ACKNOWLEDGES THAT KINETIQ IS A SERVICE PROVIDER ONLY, AND DOES NOT SELL, DISTRIBUTE OR SYNDICATE CONTENT AND DOES NOT OWN THE MEDIA CONTENT ACCESSIBLE IN THE ADD-ON SERVICES. ALL VIEWING AND OTHER USAGE OF MEDIA CONTENT (INCLUDING VIDEO) AVAILABLE WITHIN THE ADD-ON SERVICES IS STRICTLY LIMITED TO “FAIR USES” OR OTHER PERMISSIBLE USES UNDER APPLICABLE COPYRIGHT LAW. To the extent brief snippets of third-party media content contained in the Add-On Services are made available to Customer, Customer agrees that it may solely view and use such brief snippets of media content solely for the purpose of its internal analysis and not for sale, licensing, re-broadcast, distribution, syndication or public display. In order to protect rights holders, Kinetiq uses digital rights management technology (“DRM”) to monitor and trace the usage and sharing of media content snippets and block potentially infringing activities. Customer shall not circumvent or disable Kinetiq’s DRM. Customer acknowledges that Customer’s access to any or all of the Video or closed-caption content, or content snippets therein, may immediately and without notice be suspended or terminated if a complaint is made by a rights holder about Customer, or if Kinetiq believes in good faith that Customer has breached this End User License Agreement. Customer further acknowledges that, upon a complaint from a rights holder, certain third-party content and/or other data available and/or accessible in the Add-On Services may temporarily or permanently be removed. Kinetiq shall have no liability whatsoever relating to any suspension, denial or termination of access to the Add-On Services, or any content therein, where permitted by this End User License Agreement.
- THE ADD-ON SERVICES AND CONTENT THEREIN (INCLUDING, BUT NOT LIMITED TO, ALL ACCESS TO VIDEO) IS PROVIDED “AS IS”, WITH NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, ACCURACY, TIMELINESS AND ERROR-FREE OR UNINTERRUPTED OPERATION. IN NO EVENT WILL KINETIQ OR ANY ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, BUSINESS, REVENUE OR DATA, IN CONNECTION WITH THE ADD-ON SERVICES, EVEN IF CUSTOMER OR KINETIQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. CUSTOMER HEREBY EXPRESSLY WAIVES THE RIGHT TO BRING ANY CLAIM OR LAWSUIT AGAINST KINETIQ, WHETHER IN LAW OR EQUITY, RELATING TO THE ADD-ON SERVICES OR ANY CONTENT OR DATA AVAILABLE THEREIN. WITHOUT LIMITING THE PREVIOUS SENTENCE, IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION DETERMINES THAT LIABILITY EXISTS AGAINST KINETIQ, AS BETWEEN CUSTOMER AND KINETIQ, THE ENTIRE LIABILITY OF KINETIQ AND ITS AFFILIATES, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY CLAIM OR ACTION (OR SERIES OF CLAIMS OR ACTIONS) RELATING TO THE ADD-ON SERVICES (WHETHER IN NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER THEORY OR CAUSE OF ACTION WHATSOEVER) SHALL BE DIRECT DAMAGES NOT TO EXCEED, IN THE AGGREGATE, $100 USD. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL BE ENFORCEABLE EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Customer shall indemnify, defend, and hold harmless Kinetiq, its affiliates, and its and their respective officers, directors, shareholders, members, managers, employees and agents from all losses and expenses (including reasonable attorneys’ fees) related to or arising out of any third-party claim, action, proceeding or demand that arises from any alleged facts that, if true, would constitute (i) Customer’s breach of this End User License Agreement, (ii) Customer’s unauthorized use of the Add- On Services or the data or other content (including Video) contained therein, or (iii) an infringing or otherwise unlawful use of Kinetiq Data by a third party to whom Customer has disclosed such Kinetiq Data.
- As between Customer and Kinetiq, all disputes arising out of or relating to the Add-On Services or this End User License Agreement shall be governed by the laws of United States of America and the State of Delaware, without giving effect to the conflicts of laws rules thereof, with exclusive jurisdiction and venue for the adjudication of any such disputes between Kinetiq and Customer being in the state and federal courts (including the appellate courts) for New Castle County, Delaware. Kinetiq and Customer expressly consent to the jurisdiction and venue of such courts.