February 26, 2008
The Services shall include, but not be limited to, any service and content Kanu performs for you, as well as the offering of any materials displayed or performed on the Site (including, but not limited to text, user comments, messages, information, data, graphics, news articles, photographs, images, illustrations, software, audio clips and video clips, also known as the "Content") on the Site. You understand and agree that the Services are provided on an AS IS and AS AVAILABLE basis. Kanu disclaims all responsibility and liability for the availability, timeliness, security or reliability of the Services.
Kanu reserves the right, at its sole discretion, to modify or replace terms of this Agreement at any time, so be sure to check back periodically. Your use of the Site and/or the Services after any changes have been posted will constitute your agreement to the modified Agreement. You understand and agree that Kanu may discontinue or change the Site and/or the Services at any time, without notice. You also understand and agree that Kanu may discontinue or restrict your use of the Site and/or the Services for any reason without notice and without any liability to you. In addition, when using the Site, you shall be subject to any posted guidelines or rules applicable to the Services, which may be posted from time to time and which are hereby incorporated by reference into this Agreement.
- USER CONDUCT
As a condition of use, you promise not to use the Services for any purpose that is unlawful or prohibited by this Agreement, or any other purpose not reasonably intended by Kanu.
The following is a partial list of Content that is illegal or otherwise prohibited. You may not upload, post, email, transmit or otherwise make available ("Post") or cause to be Posted, any Content that:
- is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses, "stalks," or advocates harassment of another person;
- exploits people in a sexual or violent manner;
- contains nudity, violence, or offensive subject matter or contains a link to an adult website;
- solicits personal information from anyone under 18;
- provides any telephone numbers, street addresses, URLs or personal email addresses;
- promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated files or links to pirated files;
- contains anything that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- contains anything that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- involves the transmission of sites/blogs repurposing existing stories (source hops), "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
- contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
- furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or creating computer viruses;
- solicits passwords or personal identifying information for commercial or unlawful purposes from other users;
- involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
- includes a photograph of another person that you have posted without that person's consent;
- 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;
- artificially inflates or alters Kanu data, blog counts, comments, or any other Kanu services, including by way of creating separate user accounts for the purpose of artificially altering Kanu's Services; giving or receiving money or other remuneration in exchange for votes; or participating in any other organized effort that in any way artificially alters the results of Kanu's Services; or
- violates any laws in your jurisdiction (including but not limited to copyright laws).
The following is a partial list of the kind of activities that are illegal or otherwise prohibited on the Site and through your use of the Services. Prohibited activity includes, but is not limited to:
- criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
- advertising to, or solicitation of, any member to buy or sell any products or services through the Services. You may not transmit any chain letters or junk email to other members. It is also a violation of these rules to use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any member without their prior explicit consent;
- any automated use of the system, such as using scripts to add friends or send comments or messages;
- interfering with, disrupting, or creating an undue burden on the Services or the networks or services connected to the Services;
- attempting to impersonate another member or person; this includes using the account, username, or password of another member at any time or disclosing your password to any third party or permitting any third party to access your account;
- using any information obtained from the Services in order to harass, abuse, or harm another person;
- displaying an advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Services on behalf of that person;
- using any robot, spider, scraper or other automated means (with the exception of accessing RSS feeds) to access the Services for any purpose without our express written permission;
- bypassing any measures we may use to prevent or restrict access to the Site; or
- using the Services in a manner inconsistent with any and all applicable laws and regulations.
Any violation of this Section may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. Kanu reserves the right to investigate and take appropriate legal action against anyone who, in Kanu's sole discretion, violates this Section, including without limitation, removing the offending communication from the Services and terminating the membership of such violators. Kanu may remove any Content and Kanu accounts at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all. To report abuse, please contact Kanu.
- REGISTRATION AND PASSWORD
As a condition to using the Services, you are required to register with Kanu by providing a valid email address and selecting a password. You shall provide Kanu with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Agreement, which may result in immediate termination of your Kanu account. You may not (i) select or use a name or email account of another person with the intent to impersonate that person; (ii) use as a name or email account, one subject to any rights of a person other than you without appropriate authorization; or (iii) use a false name that is otherwise offensive, vulgar or obscene. Kanu reserves the right to refuse or cancel registration at its discretion. You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify Kanu of any unauthorized use of your password or account or any other breach of security. Kanu cannot and will not be liable for any loss or damage arising from your failure to comply with this Section. You agree to comply with all local rules regarding online conduct and acceptable Content, including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
- PERSONAL USE
The Services are for the personal use of Kanu members only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by Kanu. You may not copy, reproduce, alter, modify, create derivative works, or publicly display any Content, without the prior written permission of Kanu. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Site without notice and may result in termination of Kanu membership privileges.
- CHILDREN'S ONLINE PRIVACY
This Site is intended solely for people who are thirteen (13) years of age or older, and any registration by, use of or access to the Site by anyone under 13 is unauthorized, unlicensed and in violation of this Agreement. By using the Services or the Site, you represent and warrant that you are 13 or older and that you agree to abide by all of the terms and conditions of this Agreement. Kanu may terminate your membership, delete your profile and any content or information that you have posted on the Site and/or prohibit you from using or accessing the Services or the Site (or any portion, aspect or feature of the Services or the Site) for any reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 13. If you are under 13, do not attempt to register for or use the Services.
- PROPRIETARY RIGHTS IN CONTENT
Kanu does not claim any ownership rights in the Content that you post to the Services. After Posting your Content to the Site, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. By Posting any Content on or through the Services, you hereby grant to Kanu a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the Services. The license you grant to Kanu is non-exclusive, royalty-free, sublicensable, and worldwide. This license will terminate at the time you remove your Content from the Kanu Services. The license does not grant Kanu the right to sell your Content, nor does the license grant Kanu the right to distribute your Content outside of the Services.
You represent and warrant that: (i) you own the Content Posted by you on or through the Services or otherwise have the right to grant the license set forth in this section, and (ii) the Posting of your Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Content Posted by you to or through the Services.
Kanu also generates Content ("Kanu Content"). Kanu Content is protected by copyright, trademark, patent, trade secret and other laws, and Kanu owns and retains all rights in the Kanu Content and the Services. Kanu hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Kanu Content (excluding any software code) solely for your personal use in connection with viewing the Site and using the Services.
Except for Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the Services.
- COPYRIGHT POLICY
You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Kanu to terminate membership privileges of any member who repeatedly infringes the copyright rights of others upon receipt of proper notification to Kanu by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide Kanu with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Services; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) 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.
- MEMBER DISPUTES
You are solely responsible for your interactions with other Kanu members. Kanu reserves the right, but has no obligation, to monitor disputes between you and other members. You release Kanu and its officers, members and employees from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such member disputes.
You agree to indemnify and hold Kanu and its parents, subsidiaries, affiliates, customers, vendors,officers, members and employees harmless from any liability, demands, claims, damages, losses or costs (including reasonable attorney's fees) due to or arising out of your use of the Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any Content that you post on the Site or through the Services causes Kanu to be liable to another.
- WARRANTY DISCLAIMERS
You agree that Kanu has no control over, and no duty to take any action regarding: which users gain access to the Site; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Kanu from all liability for you having acquired or not acquired Content through the Site. The Site includes facts, views, opinions and recommendations of individuals and organizations deemed of interest, and Kanu does not endorse these views, opinions and recommendations. Kanu specifically disclaims any representations or warranties, express or implied, as to the Site and the Content, including, without limitation, any representations or warranties of accuracy, completeness, timeliness, noninfringement, merchantability or fitness for a particular purpose. Kanu will not be liable to you or anyone else for any loss or injury caused in whole or part by its negligence or contingencies beyond its control in procuring, compiling, interpreting, reporting or delivering the Services and the Content. In no event will Kanu be liable to you or anyone else for any decision made or action taken by you in reliance on the Services or Content. Kanu shall not be liable to you or anyone else for any damages (including, without limitation, consequential, special, incidental, indirect, or similar damages), other than direct damages, even if advised of the possibility of such damages. Because some states or jurisdictions do not allow the exclusion or limitation of liability for damages or the exclusion of certain types of warranties, parts or all of the above limitation may not apply to you.
- EXTERNAL LINKS
The Services may provide, or users may provide, links to other World Wide Web sites or resources. When you access these third-party sites, you do so at your own risk. Kanu is not responsible for the Content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by Kanu. Because Kanu has no control over such sites and resources, you acknowledge and agree that Kanu is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Kanu shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL KANU BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF KANU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, KANU'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO KANU FOR THE SERVICES DURING THE TERM OF MEMBERSHIP.
- TERM AND TERMINATION
This Agreement shall remain in full force and effect while you use the Services or are a member. You may terminate your Kanu membership at any time, for any reason, by contacting Kanu. Kanu may terminate or suspend any and all Services and your Kanu account immediately, for any reason, without prior notice or liability. All provisions of the Agreement will remain in effect even after membership is terminated, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Any disputes arising with respect to this Agreement shall be referred to an arbitrator who will utilize the dispute resolution procedures of the American Arbitration Association. The arbitrator shall be selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties. The arbitration proceeding shall be carried on and heard in the State of Hawaii. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.
Kanu, Kanu Hawaii, and other Kanu graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Kanu in the U.S. and/or other countries. Kanu's trademarks and trade dress may not be used in any manner without Kanu's prior written consent.
- ADDITIONAL TERMS
This Agreement, your rights and obligations, and all actions contemplated by this Agreement will be governed by the laws of the United States of America and the State of Hawaii, as if this Agreement were a contract wholly entered into and wholly performed within the State of Hawaii. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect, and the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision. The failure of Kanu to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. This Agreement is the entire and final agreement regarding the Site, the Services, and the Content, and supersedes any prior or contemporaneous communications between Kanu and you. This Agreement and any of its terms are not assignable, transferable or sublicensable by you except with Kanu's prior written consent. Kanu may transfer, assign or delegate any or all of this Agreement and its rights and obligations without consent.
Please contact Kanu with any questions regarding this Agreement.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.