Terms of use KETY APP
Terms Of Use (EULA)
PLEASE READ THESE TERMS OF USE (THE “TERMS OF USE” or "EULA") CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF KETY, INC. (COLLECTIVELY, THE “WEBSITE”), THE KETY MOBILE APPLICATION (“APP”) AND THE INFORMATION ON IT, AND THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE AND APP (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), (EACH WEBSITE, APP, AND SERVICE IS A “KETY PROPERTY” AND COLLECTIVELY THEY ARE THE “KETY PROPERTIES”) ARE CONTROLLED BY KETY, INC. (“KETY”). THESE TERMS OF USE GOVERN THE USE OF THE KETY PROPERTIES AND APPLY TO ALL USERS VISITING THE KETY PROPERTIES. BY ACCESSING OR USING THE KETY PROPERTIES, BY CLICKING ON “SIGN IN WITH APPLE”, “CONTINUE WITH GOOGLE”, “CONTINUE WITH FACEBOOK” AND/OR OTHER SIGN IN BUTTON WITHIN KETY PROPERTIES, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE KETY PROPERTIES OR DOWNLOADING THE APP, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH KETY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE KETY PROPERTIES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE KETY PROPERTIES.
PLEASE BE AWARE THAT SECTION 16 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE NOTE THAT the Terms of Use are subject to change by Kety in its sole discretion at any time. When changes are made, Kety will make a new copy of the Terms of Use available at the Website and within the App and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website and/or within the App. We will also update the “Last Updated” date at the top of the Terms of Use. Kety may require you to provide consent to the updated Agreement in a specified manner before further use of the Kety Properties is permitted. If you do not agree to any change(s) after being notified of such change(s), you shall stop using the Kety Properties. Otherwise, your continued use of the Kety Properties constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. USE OF THE SERVICES AND KETY PROPERTIES.
1.1 App License. Subject to your compliance with the Agreement, Kety grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced App”), you will only use the App Store Sourced App (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google Play store (a “Google Play Sourced App”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
1.2 Updates. You understand that the Kety Properties are evolving. As a result, Kety may require you to accept updates to the Kety Properties that you have installed on your computer or mobile device. You acknowledge and agree that Kety may update the Kety Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Kety Properties.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Kety Properties or any portion of the Kety Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Kety Properties (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Kety’s name, trademarks, or service marks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Kety Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not develop or use any manual or automated software, devices, or other processes (including but not limited to scripts, browser plugins, spiders, robots, scrapers, crawlers, data mining tools, or the like) to scrape, access, download, duplicate, replicate, reproduce, or otherwise copy data, content, or information from any pages contained in the Kety Properties (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, and only to the extent such use is consistent with the rules contained in Kety’s robots.txt file at https://www.ketyapp.com/ robots.txt), or attempt to obtain the source code of the Kety Properties; (f) you shall not use, or attempt to use, any device or process designed to circumvent any technological measure that controls access to the Kety Properties, including, without limitation, software designed to “scrape” data; (g) except as expressly stated herein, no part of the Kety Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Kety Properties. Any future release, update, or other addition to the Kety Properties shall be subject to the Agreement. Kety, its suppliers, and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Kety Property terminates the licenses granted by Kety pursuant to the Agreement.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of the Kety Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has connected their third- party account to the Services, such as through Facebook, Apple or Google (each such account, a “Third-Party Account” or “Account”).
2.2 Access Through a Third-Party Account. If you access the Kety Properties through a Third-Party Account as part of the functionality of the Kety Properties, you may link your Account with Third-Party Accounts by allowing Kety to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Kety and/or grant Kety access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Kety to pay any fees or making Kety subject to any usage limitations imposed by such third-party service providers. By granting Kety access to any Third-Party Accounts, you understand that Kety may access, make available, and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials accessible through the Kety Properties (collectively, “Content”) that you have provided to and stored in your Third- Party Account (“Third-Party Account Content”) so that it is available on and through the Kety Properties via your Account. Unless otherwise specified in the Agreement, all Third-Party Account Content shall be considered to be Your Content (as defined in Section 3.1 (Types of Content)) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Kety Properties. Please note that if a Third-Party Account or associated service becomes unavailable, or Kety’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content will no longer be available on and through the Kety Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD- PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND KETY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Kety makes no effort to review any Third-Party Account Content for any purpose, including, but not limited to, for accuracy, legality or non- infringement, and Kety is not responsible for any Third-Party Account Content. 2.3 Registration Data. In registering an account on the Website or App, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You represent that you are (i) of legal age to form a binding contract; and (ii) not a person barred from using the Kety Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account with anyone, and you agree to (y) notify Kety immediately of any unauthorized use of your Account or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current, or incomplete, or if Kety has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current, or incomplete, Kety has the right to suspend or terminate your Account and refuse any and all current or future use of the Kety Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. Kety reserves the right to remove or reclaim any usernames at any time and for any reason, including, but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Kety Properties if you have been previously removed by Kety or if you have been previously banned from any of the Kety Properties.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are, and shall forever be, owned by and inure to the benefit of Kety.
3. RESPONSIBILITY FOR CONTENT.
 3.1 Types of Content. You acknowledge that all Content, including that available via the Kety Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Kety, are entirely responsible for all Content that you upload, post, e-mail, transmit, or otherwise make available (“Make Available”) through the Kety Properties (“Your Content”), and that you and other Registered Users of the Kety Properties, and not Kety, are similarly responsible for all Content that you and they Make Available through the Kety Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Kety has no obligation to pre-screen Content (including, but not limited to, User Content), although Kety reserves the right in its sole discretion to pre-screen, refuse, or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring; provided that, Kety’s use of such Content will be subject to its privacy policy available at: https:// www.ketyapp.com/privacy. In the event that Kety pre-screens, refuses, or removes any Content, you acknowledge that Kety will do so for Kety’s benefit, not yours. Without limiting the foregoing, Kety shall have the right to remove any Content that violates the Agreement or is otherwise objectionable to Kety. 3.3 Storage. Unless expressly agreed to by Kety in writing elsewhere, Kety has no obligation to store any of Your Content that you Make Available on Kety Properties. Kety has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Kety Properties. 4. OWNERSHIP.
4.1 Kety Properties. Except with respect to Your Content and User Content, you agree that Kety and its suppliers own all rights, title and interest in the Kety Properties. You will not remove, alter or obscure any copyright, trademark, service mark, trade dress, or other proprietary rights or notices incorporated in or accompanying any Kety Properties.
4.2 Trademarks. The name “Kety” and all related graphics, logos, and trade names used on or in connection with any Kety Properties or in connection with the Services are service marks, trademarks, or trade dress of Kety and may not be used without permission in connection with your, or any third-party’s, products or services. Other trademarks, service marks, trade names, and trade dress that may appear on or in the Kety Properties are the property of their respective owners.
4.3 Your Content. Kety does not claim ownership of Your Content. You grant Kety a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of marketing, operating, and providing the Kety Properties and Kety’s other products and services. Without limiting the foregoing, you acknowledge and agree that Kety may, without further compensation, use, market, distribute, transmit, display, perform, reproduce, modify, create derivative works of, translate, and otherwise exploit your wine ratings, reviews, comments, user name, photos, images and other content that you Make Available on the Kety Properties in any manner and in any medium, either directly or indirectly, through one or more third parties. Please remember that other Registered Users may search for, see, use, modify, and reproduce any of Your Content that you submit to any “public” area of the Kety Properties. You represent and warrant that you own or have sufficient rights to provide Kety the rights granted herein. Without limiting the foregoing, you warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You further represent, warrant and covenant that you will not Make Available any Content featuring or displaying any other person’s name, image, or likeness without having obtained all necessary consents, and that you will immediately notify Kety of any failure to do so. You agree that you, not Kety, are responsible for all of Your Content that you Make Available on or in the Kety Properties.
4.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Kety through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Kety has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Kety a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner any and all Feedback and to sublicense the foregoing rights in connection with the operation and maintenance of the Kety Properties and/or Kety’s business.
5. USER CONDUCT AND ACCEPTABLE CONTENT.
5.1 Generally. As a condition of use, you agree not to use the Kety Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party to) either (a) take any action or (b) Make Available any Content on or through the Kety Properties that (i) infringes any patent, trademark, service mark, trade dress, trade secret, copyright, right of publicity, or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy (including posting pictures or information of other users without their permission), tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk, or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Kety’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Kety; (vi) interferes with or attempt to interfere with the proper functioning of the Kety Properties or uses the Kety Properties in any way not expressly permitted by this Agreement; or (vii) attempts to engage in, or engage in, any potentially harmful acts that are directed against the Kety Properties, including, but not limited to, violating or attempting to violate any security features of the Kety Properties using manual or automated software or other means to access, “scrape,” “crawl,” or “spider” any pages contained in the Kety Properties; introducing viruses, worms, or similar harmful code into the Kety Properties; or interfering or attempting to interfere with use of the Kety Properties by any other user, host, or network, including, but not limited to, by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Kety Properties.
5.2 Conflicts of Interest. The Kety Properties may contain user ratings, rankings, and reviews of various beauty products. These ratings, rankings, and reviews are meant to provide users with an unbiased and objective consensus from the Kety community. As such, users who represent or are affiliated with any beauty products or retailer may not post or provide any ratings or reviews that are intended or designed to artificially enhance, diminish, or otherwise alter the ranking(s), rating(s), and/or review(s) of any beauty products, beauty brands, or retailers that they are affiliated with, or artificially enhance, diminish, decrease, degrade, or otherwise alter the ranking(s), rating(s), and/or review(s) of any third party beauty products, beauty brands, or retailers.
5.3 Promotional Content. Users may not post or provide links to any promotional content, including any blogs, websites, or other publications, without the prior written consent of Kety.
6. INVESTIGATIONS. Kety may, but is not obligated to, monitor or review the Kety Properties and Content at any time. Without limiting the foregoing, Kety shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Kety does not generally monitor user activity occurring in connection with the Kety Properties or Content, if Kety becomes aware of any possible violations by you of any provision of the Agreement, Kety reserves the right to investigate such violations, and Kety may, at its sole discretion, immediately terminate your license to use the Kety Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Kety reserves the right, but has no obligation, to intercede in such disputes. You agree that Kety will not be responsible for any liability incurred as the result of such interactions.
8. Content Provided by Other Users. The Kety Properties may contain User Content provided by other Registered Users. Kety is not responsible for User Content. Kety has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
9. Indemnification. You agree to indemnify and hold Kety, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Kety Party” and collectively, the “Kety Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Kety Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Kety reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Kety in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Kety Properties.
10. DISCLAIMER OF WARRANTIES AND CONDITIONS.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE KETY PROPERTIES IS AT YOUR SOLE RISK, AND THE KETY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE KETY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT ARISING FROM USE OF THE KETY PROPERTIES.
(a) THE KETY PARTIES MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) THE KETY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE KETY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE KETY PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE KETY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE KETY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS, AND OTHER DISRUPTIONS. THE KETY PARTIES MAKE NO WARRANTY, REPRESENTATION, OR CONDITION WITH RESPECT TO SERVICES, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION, AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KETY OR THROUGH THE KETY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
10.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE KETY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE KETY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE KETY PROPERTIES. YOU UNDERSTAND THAT KETY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE KETY PROPERTIES. KETY MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
10.4 Third-Party Materials. As a part of using the Kety Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Kety to monitor such materials and that you access these materials at your own risk.
11. LIMITATION OF LIABILITY.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE KETY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT KETY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF THE KETY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE KETY PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO, THROUGH THE KETY PROPERTIES; (b) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (c) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE KETY PROPERTIES; OR (d) ANY OTHER MATTER RELATED TO THE KETY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY.
11.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, THE KETY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) $100; OR (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.
11.3 User Content. EXCEPT FOR KETY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE KETY’S PRIVACY POLICY, KETY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS- DELIVERY, OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
11.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KETY AND YOU.
12. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Kety’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Kety 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 Kety Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Kety Properties of the material that you claim is infringing; (d) your address, telephone number, and e- mail address; (e) 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; and (f) 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. Contact information for Kety’s Copyright Agent for notice of claims of copyright infringement is as follows:
Kety, Inc. Attention:
● 4705 Bayview Dr
● Plano, TX 75093-1938
● United States
● Email: legal@ketyapp.com
13. MONITORING AND ENFORCEMENT. Kety reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Kety Properties or the public, or could create liability for the Kety; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Kety Properties; and/or (e) terminate or suspend your access to all or part of the Kety Properties for any or no reason, including without limitation, any violation of this Agreement.
If Kety becomes aware of any possible violations by you of the Agreement, Kety reserves the right to investigate such violations. If, as a result of such investigation, Kety believes that criminal activity has occurred, Kety reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Kety is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Kety Properties, including Your Content, in Kety’s possession in connection with your use of the Kety Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property, or personal safety of Kety, its Registered Users, or the public, and all enforcement or other government officials as Kety in its sole discretion believes to be necessary or appropriate.
14. TERM AND TERMINATION.
14.1 Term. The Agreement commences on the date when you accept the Terms of Use (as described in the preamble above) and remain in full force and effect while you use the Kety Properties, unless terminated earlier in accordance with the Agreement.
14.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of: (a) the date you first used the Kety Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Kety Properties, unless earlier terminated in accordance with the Agreement.
14.3 Termination of Services by Kety. If you have materially breached any provision of the Agreement, or if Kety is required to do so by law (e.g., where the provision of any Kety Property is, or becomes, unlawful), Kety has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Kety’s sole discretion and that Kety shall not be liable to you or any third party for any termination of your Account.
14.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve (without any obligation on the part of Kety to do so) deletion of Your Content associated therewith from our live databases. Kety will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability. 14.5 No Subsequent Registration. If your registration(s) with, or ability to access, the Kety Properties or any other Kety community, is discontinued by Kety due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Kety Properties or any Kety community through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Kety reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
15. INTERNATIONAL USERS. The Kety Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Kety intends to announce such Services or Content in your country. The Kety Properties are controlled and offered by Kety from its facilities in the United States of America. Kety makes no representations that the Kety Properties are appropriate or available for use in other locations. Those who access or use the Kety Properties from other countries do so at their own volition and are responsible for compliance with local law.
16. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires all users to arbitrate disputes with Kety and limits the manner in which you can seek relief from us. 16.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Kety Properties, to any products sold or distributed through the Kety Properties, or to any aspect of your relationship with Kety, will be resolved by binding arbitration, rather than in court, except that: (a) you may assert claims or seek relief in small claims court if your claims qualify and (b) you or Kety may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
16.2 Arbitration Rules and Forum. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: The Corporation Trust Company, Corporate Trust Center, Wilmington, DE 19801. The arbitration will be conducted by an established alternative dispute resolution provider. If the arbitrator finds that you cannot afford to pay the filing, administrative, hearing and/or other fees and cannot obtain a waiver from the alternative dispute resolution provider, Kety will pay them for you, and, in addition, Kety will reimburse all such filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
For users in North or South America, the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration shall take place in San Francisco, California and will be conducted by JAMS. Disputes involving claims, counterclaims, or request for relief under two hundred fifty thousand US dollars ($250,000), not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules- streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
For users in the United Kingdom or Europe, the arbitration shall take place in London, England. For users in Asia or the Pacific Region (excluding Australia and New Zealand) the arbitration shall take place in Singapore. For users in Australia or New Zealand, the arbitration shall take place in Adelaide, South Australia.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to: (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Kety. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Jury Trial. YOU AND KETY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Kety are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the cognizant court having jurisdiction. All other disputes, claims, or requests for relief shall be arbitrated.
16.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@ketyapp.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Kety username (if any), the email address you used to set up your Kety account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7 Severability. Except as provided in Section 16.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Kety.
16.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Kety makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Kety at the following address: legal@ketyapp.com.
17. THIRD-PARTY SERVICES.
17.1 Third-Party Websites, Applications, and Ads. The Kety Properties may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Apps”), and advertisements for third parties (“Third-Party Ads”). When you click on a link to Third-Party Websites, Third-Party Apps, or Third- Party Ads, we may not warn you that you have left the Kety Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Apps, and Third-Party Ads are not under the control of Kety. Kety is not responsible for any Third-Party Websites, Third-Party Apps, or Third-Party Ads. Kety provides these Third-Party Websites, Third-Party Apps, and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Apps, or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Apps, and Third-Party Ads at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Apps, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
17.3 App Stores. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Kety and not with the App Store. Kety, not the App Store, is solely responsible for the Kety Properties, including the App, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). In order to use the App, you must have access to a wireless or cellular network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Kety Properties, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all terms of agreement imposed by the applicable App Store when using any Kety Property, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
18. GENERAL PROVISIONS.
18.1 Electronic Communications. The communications between you and Kety may take place via electronic means, whether you visit the Kety Properties or send Kety e-mails, or whether Kety posts notices on the Kety Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Kety in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Kety provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including, but not limited to, the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
18.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Kety’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.3 Force Majeure. Kety shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, pandemics, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
18.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Kety Properties, please contact us via support@ketyapp.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.5 Governing Law and Venue. THE LAW GOVERNING THESE TERMS, INCLUDING ANY ACTION RELATED THERETO, AND THE VENUE OF ANY LAWSUIT OR CLAIM ARISING OUT OF OR RELATED TO THESE TERMS, DEPEND ON WHERE YOU ARE DOMICILED. IF YOU ARE DOMICILED: (I) IN NORTH OR SOUTH AMERICA, THE LAWS OF TEXAS WILL APPLY, AND THE STATE OR FEDERAL COURTS LOCATED IN SAN MATEO COUNTY, TEXAS WILL HAVE EXCLUSIVE JURISDICTION OVER ANY LAWSUITS THAT ARE NOT SUBJECT TO SECTION 16; (II) IN THE UNITED KINGDOM OR EUROPE, THE LAWS OF ENGLAND AND WALES WILL APPLY, AND THE COURTS OF ENGLAND AND WALES WILL HAVE EXCLUSIVE JURISDICTION; (III) A COUNTRY IN ASIA OR THE PACIFIC REGION (EXCLUDING AUSTRALIA), THE LAWS OF SINGAPORE WILL APPLY, AND THE COURTS OF SINGAPORE WILL HAVE EXCLUSIVE JURISDICTION; OR (IV) IN AUSTRALIA, THE LAWS OF SOUTH AUSTRALIA WILL APPLY AND THE PARTIES SUBMIT TO THE JURISDICTION OF THE COURTS OF SOUTH AUSTRALIA. EACH PARTY AGREES TO THE APPLICABLE GOVERNING LAW ABOVE WITHOUT REGARD TO CHOICE OR CONFLICTS OF LAW RULES, AND TO THE EXCLUSIVE JURISDICTION OF THE APPLICABLE COURTS ABOVE. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
18.6 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
18.7 Notice. Where Kety requires that you provide an e-mail address, you are responsible for providing Kety with your most current e-mail address. In the event that the last e-mail address you provided to Kety is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Kety’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Kety at the following address: Kety, Inc., Attention: 4705 Bayview Dr, Plano, TX 75093-1938, United States. Such notice shall be deemed given when received by Kety by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
18.8 Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED OUR SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
18.9 Severability. If any portion of these Terms of Use are held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.10 Export Control. You may not use, export, import, or transfer the Kety Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Kety Properties, and any other applicable laws. In particular, but without limitation, the Kety Properties may not be exported or re-exported: (a) into any countries subject to a United States embargo, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Kety Properties, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Kety Properties for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons.
18.11 Entire Agreement. These Terms of Use are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.