By using the Site, you agree to be bound by these Terms. The Site may also provide rules of participation (“Rules”) for certain activities and services including, without limitation, contests and sweepstakes, games and membership clubs. To the extent that there is a conflict between these Terms and such Rules for the activity in which you choose to participate, the Rules shall govern. These Terms will remain in full force and effect as long as you are a user of the Site and in the event of termination of any membership, service or feature, you will still be bound by your obligations under these Terms or Rules, including any indemnifications, warranties and limitations of liability. You acknowledge that you have read, understood, and agree to be bound by these Terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU SHOULDN’T, AND ARE NOT PERMITTED TO, ACCESS OR USE THE SITE.
2. USE BY MINORS AND BLOCKED PERSONS
The Site is not available to persons under the age of 13. If you are between the ages of 13 and the age of legal majority in your jurisdiction of residence, you may only use the Site under the supervision of a parent or legal guardian who agrees to be bound by these Terms.
BY USING THE SITE, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND THAT YOUR PARENT OR LEGAL GUARDIAN AGREES TO BE BOUND BY THESE TERMS OF SITE IF YOU ARE BETWEEN 13 AND THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE.
5. RULES FOR SWEEPSTAKES, CONTESTS AND GAMES
6. MODIFICATION OF THESE TERMS OF SITE
Kx5 reserves the right to amend any of these Terms by posting the amended terms. Your continued use of the Site after the effective date of the revised Terms constitutes your acceptance of the terms.
For residents of the Republic of Korea, Kx5 will provide reasonable prior notice regarding any material amendments to its Terms. All amendments shall become effective no sooner than 30 calendar days after posting; provided that any amendment regarding newly available features of the Site, features of the Site that are beneficial to the user, or changes made for legal reasons may become effective immediately.
The Site is owned and operated by Kx5. Unless otherwise indicated, all content, information, and other materials on the Site, including, without limitation, Kx5’s trademarks and logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files, and the selection and arrangement thereof (collectively, the “Materials”) are protected by relevant intellectual property and proprietary rights and laws. All Materials are the property of Kx5 or its subsidiaries or affiliated companies and/or third-party licensors. Unless otherwise expressly stated in writing by Kx5, by agreeing to these Terms you are granted a limited, non-sublicensable license (i.e., a personal and limited right) to access and use the Site for your personal use or internal business use only.
Kx5 reserves all rights not expressly granted in these Terms. This license is subject to these Terms and does not permit you to engage in any of the following: (a) resale or commercial use of the Site or the Materials; (b) distribution, public performance or public display of any Materials; (c) modifying or otherwise making any derivative uses of the Site or the Materials, or any portion of them; (d) use of any data mining, robots, or similar data gathering or extraction methods; (e) downloading (except page caching) of any portion of the Site, the Materials, or any information contained in them, except as expressly permitted on the Site; or (f) any use of the Site or the Materials except for their intended purposes. Any use of the Site or the Materials except as specifically authorized in these Terms, without the prior written permission of Kx5, is strictly prohibited and may violate intellectual property rights or other laws. Unless explicitly stated in these Terms, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication, or other legal principles. Kx5 can terminate this license as set out in Section 13.
8. PROHIBITED CONDUCT
YOU AGREE NOT TO violate any law, contract, intellectual property, or other third-party right; not to commit a tort, and that you are solely responsible for your conduct while on the Site.
You agree that you will comply with these Terms and will not:
I. impersonate any person or entity; falsely claim an affiliation with any person or entity; access the Site accounts of others without permission; forge another person’s digital signature; misrepresent the source, identity, or content of information transmitted via the Site; or perform any other similar fraudulent activity;
II. engage in spamming or flooding;
III. Restrict or inhibit any other visitor or member from using the Site;
IV. harvest or collect email addresses or other contact information of other users from the Site;
V. defame, harass, abuse, threaten, or defraud users of the Site, or collect or attempt to collect, personal information about users or third parties without their consent;
VI. delete, remove, circumvent, disable, damage, or otherwise interfere with (a) security-related features of the Site or User Content, (b) features that prevent or restrict use or copying of any content accessible through the Site, (c) features that enforce limitations on the use of the Site or User Content, or (d) the copyright or other proprietary rights notices on the Site or User Content;
VII. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Site or any part thereof, except and only to the extent that this activity is expressly permitted by the law of your jurisdiction of residence;
VIII. modify, adapt, translate, or create derivative works based upon the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
IX. interfere with or damage the operation of the Site or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
X. access any website, server, software application, or other computer resource owned, used, and/or licensed by Kx5, including but not limited to the Site, by means of any robot, spider, scraper, crawler, or other automated means for any purpose, or bypass any measures Kx5 may use to prevent or restrict access to any website, server, software application, or other computer resource owned, used, and/or licensed by Kx5, including but not limited to the Site;
XI. manipulate identifiers in order to disguise the origin of any User Content transmitted through the Site;
XII. interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site; use the Site in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Site, or that could damage, disable, overburden, or impair the functioning of the Site in any manner;
XIII. attempt to circumvent any content filtering techniques we employ, or attempt to access any Site or area of the Site that you are not authorized to access;
XIV. “Frame” or “mirror” any part of the Site without our prior written authorization;
XV. attempt to indicate in any manner, without our prior written permission, that you have a relationship with us or that we have endorsed you or any products or Sites for any purpose; and
XVI. use the Site for any illegal purpose, or in violation of any local, state, national, or international law or regulation, including without limitation laws governing intellectual property and other proprietary rights, data protection, and privacy.
9. COPYRIGHT POLICY
Kx5 has adopted the following policy toward copyright infringement on the Site. If you believe that content residing or accessible on or through the Site infringes a copyright, please send a notice of copyright infringement containing the following information to [email protected]:
- Identification of the work or material being infringed.
- Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that Kx5 is capable of finding it and verifying its existence.
- Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address.
- A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
- A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
All trademarks including, Kx5, deadmau5, Kaskade, their logos, and any other product or Site name, logo, or slogan used by Kx5, and the look and feel of the Site, including all page headers, custom graphics, button icons, and scripts, are trademarks or trade dress of Kx5, and may not be used in whole or in part in connection with any product or Site that is not Kx5’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Kx5, without our prior written permission.
All other trademarks referenced in the Site are the property of their respective owners. Reference on the Site to any products, Sites, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us or any other affiliation.
11. THIRD-PARTY CONTENT
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or Sites on the Site, including payment for or delivery of such goods or Sites and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third party. You agree that Kx5 shall not be liable for any loss or damage of any kind incurred as a result of any such dealings.
12. IDEA SUBMISSION
If you elect to provide or make available to Kx5 any suggestions, comments, ideas, improvements or other feedback relating to the Site (“Suggestions”), Kx5 shall be free to use, disclose, reproduce, have made, modify, license, transfer and otherwise utilize and distribute your Suggestions in any manner, without credit or compensation to you.
To the fullest extent permitted by applicable law, Kx5 reserves the right, without notice and in our sole discretion, to terminate your license to use the Site (including to post User Content) and to block or prevent your future access to and use of the Site, including where we reasonably consider that: (a) your use of the Site violates these Terms or applicable law; (b) you fraudulently use or misuse the Site; or (c) we are unable to continue providing the Site to you due to technical or legitimate business reasons. Our right to terminate your license includes the ability to terminate or to suspend your access to any purchased products or Sites, including any subscriptions. To the fullest extent permitted by applicable law, your only remedy with respect to any dissatisfaction with: (i) the Site, (ii) any term of these Terms, (iii) any policy or practice of Kx5 in operating the Site, or (iv) any content or information transmitted through the Site, is to terminate your account and to discontinue use of any and all parts of the Site.
For residents of the Republic of Korea, except in the case where Kx5 reasonably considers that giving notice is legally prohibited (for instance, when providing notice would either (i) violate applicable laws, regulations, or orders from regulatory authorities or (ii) compromise an ongoing investigation conducted by a regulatory authority) or that any notice may cause harm to you, third parties, Kx5, and/or its affiliates (for instance, when providing notice harms the security of the Site), Kx5 will without delay notify you of the reason for taking the relevant step.
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Kx5, its affiliated companies, and each of our respective contractors, employees, officers, directors, agents, third-party suppliers, licensors, and partners, (individually and collectively, the “Kx5 Parties”) from any claims, losses, damages, demands, expenses, costs, and liabilities, including legal fees and expenses, arising out of or related to your access, use, or misuse of the Site, any information you post, store, or otherwise transmit in or through the Site, your violation of the rights of any third party, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. You agree to promptly notify the Kx5 Parties of any third-party claim, and Kx5 reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Kx5, and you agree to cooperate with Kx5’s defense of these claims. Kx5 will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
b. Disclaimers; No Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE SITES AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN WRITING BY KX5; (B) THE KX5 PARTIES DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SITES, INCLUDING ANY INFORMATION, CONTENT, OR MATERIALS CONTAINED THEREIN; (C) KX5 DOES NOT REPRESENT OR WARRANT THAT THE CONTENT OR MATERIALS ON THE SITES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE; (D) KX5 IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE KX5 ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITES SAFE, KX5 CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITES OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KX5 OR THROUGH THE SITES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KX5 OR THROUGH THE SITE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
c. Limitation of Liability and Damages
i. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL KX5 OR THE KX5 PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SITES, THE CONTENT OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM KX5, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO KX5’S RECORDS, PROGRAMS, OR SITES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF KX5, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITES EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. TO THE EXTENT THAT APPLICABLE LAW PROHIBITS LIMITATION OF SUCH LIABILITY, KX5 SHALL LIMIT ITS LIABILITY TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW.
ii. Reference Sites
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SITES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN KX5 AND RECEIVED THROUGH OR ADVERTISED ON THE SITES OR RECEIVED THROUGH ANY REFERENCE SITES.
iii. Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT KX5 HAS OFFERED THE SITES, MATERIALS, AND OTHER CONTENT AND INFORMATION, AND ENTERED INTO THESE TERMS OF SITE IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND KX5, AND THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND KX5. KX5 WOULD NOT BE ABLE TO PROVIDE THE SITES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
d. Applicable Law and Venue
(i) To the fullest extent permitted by applicable law, you and Kx5 agree that if you are a consumer resident of a jurisdiction other than those in (ii) below, the following governing law and arbitration provision applies:
PLEASE READ THE FOLLOWING CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH KX5 AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM KX5.
You and Kx5 agree to arbitrate any dispute arising from these Terms of Site or your use of the Site, except that you and Kx5 are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Kx5 agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Kx5 shall be sent to: Epicwin Ltd. c/o LaPolt Law P.C. 9000 Sunset Blvd., Suite 800, West Hollywood, CA 90069. You and Kx5 further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in Los Angeles County, California; that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and that the state or federal courts in Los Angeles County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and Kx5 will not commence against the other a class action, class arbitration, or other representative action or proceeding.
(ii) If you are a resident in any jurisdiction in which the provision in the section above is found to be unenforceable, then any disputes, claims, or causes of action arising out of or in connection with these Terms of Site shall be resolved by competent civil courts in Los Angeles County, California.
YOU AND KX5 AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The Site is provided by Epicwin Ltd. If you have any questions, comments or complaints regarding this Agreement or the Site, feel free to contact us at [email protected].
16. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, California Site users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.