TERMS OF SERVICE

LAST UPDATED AND EFFECTIVE AS OF:  April 18, 2014

Please read these Terms of Service (these “Terms”) carefully as they form a contract between you (“you”) and Kabuto Corporation (“Kabuto”, “we”, “us”, or “our”) that affects your legal rights and governs your access to and use of kabuto.com and all other websites, applications, software, user guides and other documentation, and services owned and controlled by Kabuto that post a link to these Terms (the “Service”).

By using the Service, you agree that you have read and understood these Terms, accept these Terms, and agree to be legally bound by them.

ARBITRATION NOTICE: Except for certain types of disputes described in Sections 17 and 18, you agree that disputes between you and Kabuto will be resolved by binding, individual arbitration and you waive your right to participate in a class-action lawsuit or class-wide arbitration.

When you use certain features of the Service, including downloading User Software, your use of such features may be subject to additional terms and conditions, such as an end-user license agreement (“Additional Terms”).  To the extent that there is any conflict between these Terms and the Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.  In addition, you may use the Service pursuant to a separate agreement negotiated between and executed by Kabuto and you, your employer, or another entity with which you are affiliated, such as your school (an “Enterprise Agreement”).  In such a case, the Enterprise Agreement will govern your use of the Service and these Terms will not apply, unless the Enterprise Agreement expressly states otherwise.  If you access the Service both in an individual capacity and in connection with an Enterprise Agreement, these Terms apply when you access the Service as an individual and the Enterprise Agreement applies when you access the Service in connection with the entity subject to the Enterprise Agreement.

1.  DESCRIPTION OF AND YOUR LICENSE TO USE THE SERVICE

Kabuto provides a hosted communication, document and content management, online file sharing and collaboration service for use by you and others who register for a user account with Kabuto (you and each such person who registers for an account with the Service is referred to as a “Registered User”).  As a Registered User, you may use the Service by accessing an online application on your computer or mobile device(s).  You may download certain software onto your computer or mobile device in order to make use of certain features of the Service (e.g. add-ons and plug-ins for desktop applications) or use of the Service on your mobile device (“User Software”).  As used in these Terms, the term “Service” includes, but is not limited to, the User Software and all other software, content hosting and processes that we use to provide the Service.

The Service permits Registered Users to post and access content within personal and shared workspaces (“Workspace”) and conduct group discussions, all through use of the Application.  The files that you upload to a Workspace may contain textual, graphic, audio, video, data or other content.  These Terms refer to all of the content that you provide to the Service, either by text entry or uploading a file, but excluding any Kabuto Materials (defined below), as “User Content.”

You acknowledge and agree that, except as otherwise provided in these Terms and not including your User Content, as between you and Kabuto, Kabuto owns all right, title, and interest in and to the Service, including, without limitation, the User Software, the look and feel of the Service, all data and information, all Kabuto trademarks, trade names, service marks, logos, domain names, and other distinctive brand features, and all associated intellectual property rights (“Kabuto Materials”).  As detailed in Section 5, below, you own your User Content and grant a license to Kabuto to use your User Content, but you have no interest (monetary, property or otherwise) in any of the Kabuto Materials except the license right expressly granted to you in these Terms.  All rights not expressly granted under these Terms are reserved by Kabuto.

Subject to your strict compliance with these Terms, Kabuto grants you a limited, personal, non-exclusive, revocable, and non-transferable license to use the Service and access and view the Kabuto Materials.  Without limiting the foregoing, such license includes a limited, personal, non-exclusive, revocable, non-transferable right to install the User Software on as many devices as you wish, and to use such installed User Software solely for the purposes of accessing and utilizing the publicly available features and functionality of the Service.  The User Software has not been, and will not be, sold or given to you, and you shall not own it.  Your right to use the User Software terminates on the date that your right to use the Service is terminated pursuant to Section 13, in which event you shall cease use of and uninstall all of your copies of User Software.   Kabuto Materials are protected from unauthorized use, copying, and dissemination by copyright, trademark, patent, and other laws, rules, regulations, and treaties.  ANY UNAUTHORIZED USE OF THE KABUTO MATERIALS, INCLUDING, WITHOUT LIMITATION, THE SERVICE, IS PROHIBITED.

Please note that the Service will not operate properly on all internet browsers and devices.  In addition to the disclaimers of liability contained elsewhere in these Terms, Kabuto has no liability for your use of the Service on unsupported browsers and devices.

 

2.     CHANGES TO THESE TERMS AND TO THE SERVICE

Kabuto may make changes to these Terms (“Updated Terms”) from time to time without prior notice. You agree that we may notify you of the Updated Terms by posting them on the Service.  The Updated Terms will be effective as of the time of posting or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward.  By using the Service (or engaging in such other conduct as we may reasonably specify) following the effective date of any Updated Terms, you agree to be bound by the then-current Updated Terms.  It is therefore important that you routinely review these Terms of Service before using the Service.

If any Updated Terms are unacceptable to you or cause you to no longer be in compliance, you should terminate your use of the Service in the manner described in Section 13.

You acknowledge and agree that we may completely or partially modify, suspend, or discontinue the Service and any of its features or functionality in our sole and absolute discretion and with or without notice to you, in accordance with Section 13.  Any description of the Service provided by Kabuto is not a representation that the Service is working or will always work in such a manner.

 

3.     REGISTRATION REQUIREMENTS & YOUR ACCOUNT

To become a Registered User, you must be thirteen (13) years of age or older, and must complete a registration form and designate a user ID and password.  Use of the Service by anyone who is less than thirteen (13) years of age is strictly prohibited.  If you are between the age of thirteen (13) and the age of majority where you live, you must review these Terms with your parent or guardian to confirm that you and your parent or guardian understand and agree to them.

When you apply to become a Registered User, you must provide true, accurate, current and complete information about yourself as requested by the Service’s registration form (such information, the “Registration Data”).  It is your responsibility to maintain and promptly update the Registration Data as necessary to ensure that it remains true, accurate, current and complete at all times while you remain a Registered User of the Service.  When you provide contact information to us, you are consenting to us contacting you via those contact methods (email, phone, mailing address, etc.).

You are the only authorized user of your account credentials. You may not authorize anyone else to utilize your account credentials on your behalf, or disclose them to anyone else.   Nor may you ever use the account credentials of anyone else.  A parent or guardian may create an account for the benefit of a minor, but otherwise you may not create an account for anyone else unless expressly authorized by Kabuto.  You are responsible for all actions taken by anyone who accesses your account by presenting your account credentials, irrespective of whether that person has your permission for such use. Kabuto will not be liable for any loss or damage arising from any unauthorized use of your account.

You must contact us immediately if you suspect misuse of your account or any security breach in the Service or any unauthorized use of any User Content or the Service.  You may do so by sending an email to us at support@kabuto.com.  In the event of any unauthorized use by any third party who obtained access to the Service through you, you will take all steps necessary to terminate such unauthorized use.  You will provide Kabuto with such information, cooperation, and assistance related to any such unauthorized use as Kabuto may reasonably request.

 

4.     FEES AND COSTS

We reserve the right to charge fees to access the Service (and modify those fees) at any time.  If you are a Registered User when Kabuto decides to charge a fee to access the Service or certain features of the Service or modifies any fees, Kabuto will provide you thirty (30) days’ advance notice of those fees or fee modifications.  In addition, we can place restrictions on the amount of storage used and the availability of certain features of the Service, and can place other limitations on your use of the Service not already addressed by these Terms or Additional Terms at any time on thirty (30) days’ advance notice or by preventing you from exceeding your limits until you upgrade your service level (if applicable).

You shall be solely responsible for all internet-connection and other costs that you incur accessing and using the Service.

 

5.     USER CONTENT

We do not claim ownership of any User Content, but, by using the Service and submitting User Content, you grant to us, our licensees, service providers and suppliers, and other Registered Users the licenses described in this Section.  We also do not control, review, verify, endorse, or accept any responsibility or liability for the User Content that you and others post or upload on the Service.  You agree that we are only acting as a passive conduit for distribution and publication of your User Content and the User Content of others, and accept our disclaimer of any responsibility or liability for any User Content that you or any other person posts or otherwise communicates by means of the Service, or for any action taken in reliance on any such User Content.  You understand and agree that any loss, injury or damage of any kind that occurs as a result of the use of any User Content that you post, communicate or otherwise make available or access through your use of the Service is solely your responsibility.

When you post User Content to a shared Workspace, the Service automatically shares access to that User Content with all of the other Registered Users who have been granted access to the shared Workspace.  Depending on a Registered User’s level of permissions within a shared Workspace, that Registered User may be able to view, download, edit, share within and outside of the Service, and delete your User Content.  In addition, a Registered User may also have the right to grant other Registered Users some or all of the same rights to your User Content.  Other Registered Users in a shared Workspace will also be able to view your user profile and a record of your activity within that shared Workspace.  We have no control over how other Registered Users will use any of your User Content that you have made available to them through a shared Workspace.

If you leave a shared Workspace or are removed from a shared Workspace by the owner of the Workspace, you will lose access to your User Content in that Workspace.  In addition, once you submit User Content to a shared Workspace, you may not be able to delete such User Content (other than your posts and comments) depending on the level of your permissions to that shared Workspace.  The owner of a shared Workspace (and any other Registered Users to whom the owner has delegated relevant permissions) will have control over the deletion of your User Content in that shared Workspace and control over deletion of the entire Workspace.  As discussed in Section 13, below, if your use of the Service is terminated (by you or by us), we may delete any of your User Content that has not been shared with other Registered Users, but User Content that you have posted to shared Workspaces and not deleted prior to termination will remain available to other Registered Users in such Workspace.

You hereby grant Kabuto and its licensees, service providers and suppliers a non-exclusive, perpetual, fully paid and royalty-free, transferable, sub-licensable, worldwide license to transmit, store, access, copy, cache, use, modify, adapt, distribute, and display your User Content posted on the Service in order to provide and improve the Service or as otherwise permitted by these Terms, our Privacy Policy (www.kabuto.com/privacy-policy/), and any applicable Additional Terms.

You grant all Registered Users who have been or are later admitted to Workspaces in which you have posted User Content the rights to copy, use, modify, adapt, reproduce, distribute, display and disclose your User Content posted within any such Workspaces in any way, and for any purpose, that they choose to do so.

You represent and warrant that (a) you possess all the rights necessary to grant Kabuto and Registered Users the rights you grant in these Terms, (b) you possess all rights in the User Content necessary for you to use the Service, to place your User Content on the Service, and to permit all such User Content to be displayed to other Registered Users of the Workspaces on which it is posted, (c) should you use the Service for business purposes, such use will be in compliance with all applicable policies of your employer, if any, and (d) the storage, display, use or transmission of your User Content shall not violate these Terms, any right of any third party (including, without limitation, the intellectual property, trade secret, privacy or publicity rights of third parties or the right of third parties not to suffer defamation), or any applicable law.

You will: (a) be solely responsible for the nature, quality, accuracy and legal defense of your User Content; (b) ensure that the User Content (including the storage and transmission thereof) complies with these Terms and any and all applicable laws and regulations; and (c) maintain appropriate security, protection and backup copies of the User Content.

Kabuto encourages you to maintain your own backup of your User Content.  In other words, the Service is not a backup service and you agree that you will not rely on the Service for the purposes of User Content backup or storage.  You agree that Kabuto will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any User Content or any sharing of User Content with others.  Likewise, Kabuto will not be liable to you or any other party for any modification, suspension, or discontinuation of the Services.

Our data security measures notwithstanding, we do not warrant or guarantee that the personal information that you supply us or the User Content that you post to the Application will not suffer accidental loss or disclosure to, or use or alteration by, unauthorized third parties.  You therefore submit your personal information and post your User Content at your own risk.

 

6.     ACCEPTABLE USE POLICY

In addition to any restrictions and requirements set forth elsewhere in these Terms, when you use the Service, you agree to comply with the following Acceptable Use Policy (“AUP”).

You may not:

A. post any User Content by means of the Service for any illegal purpose or that violates any laws, rules, regulations or legal orders;

B. engage in any fraudulent, unfair, deceptive, or misleading practices or activities on the Service;

C. use the Service to harm, threaten, abuse, deceive, mislead, stalk, humiliate, or harass another person, organization, or Kabuto, or create a risk of physical or mental injury, emotional distress, death, disability, disfigurement or physical or mental illness, or attempt to do any of the foregoing;

  1. impersonate someone else;
  2. disclose any confidential information contrary to any obligation of yours to limit the disclosure and use of such information;
  3. use the Service to send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative, disruptive or unsolicited advertisements, messages, whether commercial or otherwise;
  4. use the Service to market or solicit purchases of products or services or donations by other Registered Users;
  5. use the Service to store or transmit content that, in Kabuto’s sole discretion is inappropriate, such as content that (1) contains unlawful, defamatory, threatening, pornographic, libelous or otherwise objectionable material of any kind or nature, (2) contains any material that encourages conduct that could constitute a criminal offense, or (3) violates the intellectual property rights or rights of publicity or privacy of others; or
  6. use the Service in connection with the operation of communication, control, or other critical infrastructure systems or in other situations in which the failure of the Service could lead to death, personal injury, or physical property or environmental damage.

Additionally, you may not, nor may you encourage, promote, facilitate, or instruct others to:

  1. use the Service for any illegal purpose or to violate any laws, regulations, or legal orders;
  2. damage, disable, overburden, or impair the Service (or any server or network connected to the Service), including by intercepting, emulating, or redirecting the communication protocols used by any element of the Service in any way, for any purpose, or by uploading or transmitting to any element of the Service or to any servers, computer or networks connected to or accessible via the Service, any malicious code, virus, Trojan horses, worm, time bombs, or other computer programming routines that may initiate a denial of service attack or otherwise attempt to interfere with or disrupt the normal operation of any element of (1) the Service, any servers, computer or networks that are or may be used to provide the Service, or (2) any software or service, or the operation of any server or computer, owned by a third party;
  3. use any unauthorized means to modify, reroute, or gain access to the Service;
  4. interact with the Service in a way intended to sidestep or otherwise nullify any restriction or limitation that we have placed on the use of the Service by you or others, or to improperly avoid incurring fees payable to us or others;
  5. use the Service in a manner that is contrary to the Kabuto Privacy Policy;
  6. copy, translate, modify, adapt, create derivative works based on, or reverse engineer, derive source code from, disassemble, decompile, or otherwise attempt to discover the source code of any element of the Service or create source that emulates the source code of the Service or otherwise use the Service for the purpose of developing or operating a similar service or website, except to the extent required by applicable law;
  7. remove, obscure, or alter any copyright, trademark, logo, or other proprietary notices in or on any element of the Service;
  8. frame, mask, intercept, “mine,” extract data from, copy, distribute or collect information from or through, any element of the Service, including without limitation by using any software, robot, scraper, or other data mining technology, unless authorized in writing by Kabuto in its sole discretion;
  9. sell, rent, lease, sublicense, assign, transfer, or grant a security interest in your rights in any element of the Service, or authorize all or any portion of the Service to be copied onto another user’s computer except as permitted hereunder;
  10. corrupt, damage, steal, or access or use without authorization, any information stored, processed or transmitted by the Service or any servers, computer or networks connected to or accessible via the Service;
  11. access or attempt to access Kabuto’s other accounts, computer systems or networks not covered by these Terms, through password mining or any other means; or
  12. use the Service in any manner that interferes with the normal function of the Service or normal access to the Service of other Registered Users, including by utilizing a disproportionately large percentage of the capacity of the Service.

You agree to immediately report to us any violation of this Section by you or anyone else of which you become aware, and to cooperate with our investigation of all reported violations. You may report such violations by sending an email to us at legal@kabuto.com

We reserve the right, in our sole discretion, to determine whether and what action to take in response to any violation of these Terms, including this AUP.  Any action or inaction on our part with regard to any particular event(s) or concerns shall not be conclusive of how we will respond to any other events or concerns, and shall not limit how we may respond to any future events or concerns.

As discussed more fully in Section 13, we have the right, in our sole discretion, to deactivate your account and to deny you further use of the Service, at any time for no reason or any reason, including, but not limited to, our belief, reasonable or otherwise, that you have breached any of the foregoing requirements of this AUP.  You acknowledge that Kabuto shall have no liability for taking any such action.

 

7.     THIRD-PARTY SERVICES AND CONTENT

The Service may contain features and functionalities linking you or providing you with certain functionality (such as document previews and editing) and access to third-party content, including websites, directories, applications, and software.  For example, Kabuto may permit you to use contact lists from your accounts with third-party service providers (such as Outlook, Facebook, Google and LinkedIn) to invite others to become Registered Users.  All such activities, and any terms associated with such activities, are solely between you and the applicable third party CONTENT OR SERVICE PROVIDER. Similarly, we are not responsible for any third-party content you access by means of the Service, and you irrevocably waive any claim against us with respect to such sites and third-party content.  Kabuto shall have no liability, obligation or responsibility for any correspondence, purchase or promotion between you and any such third party. You are solely responsible for your dealings with any third party related to the Service or otherwise, including the delivery of and payment for goods and services.  We will not be responsible for any problems resulting from your use of any third-party services, or any data loss or other loss that you suffer as a result of your dealings with any other service provider.

 

8.     ALL USER CONTENT STORED IN THE UNITED STATES

The Service is provided from the United States.  By using and accessing the Service, you understand and consent to the transfer, storage and processing of the User Content and any other personal information in the United States, a jurisdiction in which the privacy laws may not be as comprehensive as those in the country where you reside and/or are a citizen.

 

9.  EXPORT

The Service is subject to applicable U.S. export laws and regulations.  You must comply with all domestic and international export laws and regulations that apply to the Service.  These laws include restrictions on destinations, end users, and end use.   No Service may be downloaded, exported, or otherwise transferred: (a) into (or to a national or resident of) any country to which the United States has embargoed goods or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.  You represent and warrant that you are not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.

 

10. LINKING POLICY

Kabuto grants you the revocable permission to link to the Service; provided, however, that any link to the Service: (a) must not present false information about, disparage damage, dilute or tarnish the goodwill associated with Kabuto or its products or services, any Kabuto Materials or any other intellectual property; (b) must not create the false appearance that your web site or organization is sponsored, endorsed by, affiliated or associated with Kabuto; (c) must not frame or create a browser or border environment around any of the content on the Service or otherwise mirror any part of the Service; (d) must not use any Kabuto trademarks without the prior written permission from Kabuto; (e) must not contain content or be presented on a property that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Kabuto’s sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Service, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, Kabuto reserves the right to prohibit linking to the Service for any reason in our sole and absolute discretion.

 

11. NOTICE OF INTELLECTUAL-PROPERTY INFRINGEMENT

In accordance with the Digital Millennium Copyright Act (“DMCA”), Kabuto has a designated agent for receiving notices of copyright infringement and Kabuto follows the notice and take-down procedures of the DMCA.  If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Kabuto’s copyright agent (copyright agent contact information is set forth below) the following information required by DMCA, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work(s) claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material (e.g., the URL of the allegedly infringing material); (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Pursuant to the requirement in subsection (c) above, please include the following information in your notice to the Copyright Agent, to the extent possible:

To request the take-down of a document:

  1. Email address of document creator (or if not available, of any member of the Workspace)
  2. Workspace name and UID
  3. Folder path to document
  4. Exact document name
  5. UID of document

To request the take-down of a post (or comment):

  1. Email address of post creator (or if not available, of any member of the Workspace)
  2. Workspace name and UID
  3. Date of post
  4. Contents of post
  5. UID of post (if available)

How to find the UID

You can determine the UID of a document by going to the permalink page for the document.  The UID will appear in the browser’s address bar.

Each Workspace also has a UID.  Selecting a Workspace within the Service will reveal the UID in the browser’s address bar.  For example, doing so will reveal a URL of the form:  https://app.kabuto.com/#spaces/view/12DF2441-B214-41BE-B421-256D582E791A.  The UID for the Workspace is the 36-character value you see after the …/view/ in the example.

At this time, UIDs are not available for posts.

If you believe that any content on the Service violates your rights other than copyrights, please provide Kabuto at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material (see description of information requested for copyright claims above); (c) an explanation what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you.

Please send (a) your notice of claims of copyright infringement on or regarding the Services, or (b) a complaint regarding alleged violation of rights other than copyrights, to Kabuto’s copyright agent, who can be reached at: Kabuto Corporation, Attn:  Copyright Agent, 920 Stewart Drive, Suite 100, Sunnyvale, CA 94085 and by email at copyright@kabuto.com.

We have a policy of terminating the accounts of Registered Users who (in our reasonable discretion) are repeat infringers.

It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met.  We may request additional information before we remove any infringing material.  If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your User Content along with that of the alleged infringer pending resolution of the matter.

Kabuto will provide you with notice if your User Content has been removed based on a third-party complaint of alleged infringement of the third party’s intellectual property rights.

 

12.  FEEDBACK AND SUGGESTIONS

You may choose to provide us with suggestions or feedback concerning any aspect of the Service (“Feedback”).  Feedback will not be deemed User Content even if submitted via a channel through which you normally upload User Content.  If you do provide us Feedback, you agree that you do so on a gratuitous basis, without any expectation of compensation, and that we may freely use, reproduce, license, distribute, and otherwise commercialize your Feedback in any way that we wish with no obligation to you.  You agree that you will not provide us any Feedback that you know (i) is a trade secret or is subject to a patent, copyright or other intellectual property claim or right of any third party or (ii) is subject to open-source or other license terms that seek to require any products incorporating or derived from such Feedback to be licensed to or otherwise shared with any third party.

 

13.  SUSPENSION AND TERMINATION OF YOUR USE OF THE SERVICE

These Terms (as they may be amended from time to time in accordance with Section 2) are effective until terminated in accordance with this Section.  You may terminate your right to use the Service at any time by uninstalling the User Software, discontinuing your use of the Service, and providing us notice that you have terminated your use of the Service by e-mailing us at support@kabuto.com.

Kabuto may immediately suspend or terminate your right to use the Service at any time for any reason or for no reason, with or without notice to you, and without any liability to you or any other party.  If, in Kabuto’s determination, the suspension may be indefinite and/or Kabuto has elected to terminate your access to the Service, Kabuto will use commercially reasonable efforts to notify you by e-mail to the e-mail address specified in your account.

Without limiting our rights under this Section, we may, at our discretion, terminate your account if: (a) you do not engage in any activity in your account within thirty (30) days after becoming a Registered User, or (b) you do not log into your account for any period of one hundred and twenty (120) consecutive days.

Upon termination of your right to use the Service, you shall uninstall all instances of User Software that you have installed on any device, and shall henceforth refrain from attempting to access the Service.

Upon termination, we may delete any of your User Content that has not been shared with other Registered Users in accordance with our data retention and compliance policies.  User Content that you have posted to shared Workspaces and not deleted prior to termination will remain available to other Registered Users in such Workspace.

You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the User Content that is stored with the Service.  Where Kabuto, without prior notice to you, suspends or terminates your access to the Service for reasons other than your breach or suspected breach of these Terms, you may request access to your User Content within thirty (30) days following termination.  We may, in our sole discretion, provide you with restricted access to your User Content for a limited period, and we may charge a fee for this aceess.  Note that any User Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain any data stored in your account. 

Sections 1-5, 7, 8, 9 and 12-19 and any provisions of these Terms, which, by their terms, ought to survive, shall survive the termination of these Terms.

 

14.  NO WARRANTY

THE SERVICE IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. KABUTO, its parent company, and all of its and their officers, directors, owners, employees, subsidiaries, successors, assigns, agents, information providers, service providers, vendors, contractors, affiliates, partners, and licensors (collectively, the “Kabuto Parties”) MAKE NO (AND SPECIFICALLY DISCLAIM ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, MALWARE, OR OTHER HARMFUL CODE, THAT DEFECTS OR ERRORS WILL BE CORRECTED, THAT USER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, THAT KABUTO WILL CONTINUE TO PROVIDE THE SERVICE FOR ANY PERIOD OF TIME, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.  SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.

THE KABUTO PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE WILL BE LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE KABUTO PARTIES SPECIFICALLY DISCLAIM ANY SUCH WARRANTY. BY ACCESSING AND USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.

THE KABUTO PARTIES DO NOT ENDORSE ANY USER CONTENT HOSTED ON THE SERVICE AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, OR OTHERWISE), INJURY, OR CLAIM OR OTHER CAUSE OF ANY KIND BASED UPON OR ARISING OUT OF USER CONTENT HOSTED ON THE SERVICE.

YOUR INSTALLATION OF THE USER SOFTWARE AND USE OF THE SERVICE IS AT YOUR RISK.  IF YOU ARE DISSATISFIED WITH THE  SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO UNINSTALL THE USER SOFTWARE AND DISCONTINUE USING THE SERVICE.

 

15.  INDEMNIFICATION

To the fullest extent permitted by law, you will indemnify, defend, and hold harmless the Kabuto Parties from and against any and all actual or alleged liabilities, losses, costs, and expenses (including attorneys’ fees) incurred by any of the Kabuto Parties as a result of any actual or alleged claim against any Kabuto Party in connection with or arising out of (a) your User Content; (b) your use of the Service or activities in connection with the Service; (c) your breach or anticipatory breach of these Terms; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your computer or device, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, right of publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) the Kabuto Parties’ use of your information or User Content as permitted under these Terms, the Privacy Policy, or any other written agreement between you and Kabuto.  Each Kabuto Party reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify and/or defend the Kabuto Party, and you agree to cooperate with Kabuto’s defense of these claims.  In no event will you settle any claim that is the subject of this Section without the prior written consent of Kabuto or the applicable Kabuto Party.

 

16.  LIMITATION OF LIABILITY/RELEASE OF CLAIMS

UNDER NO CIRCUMSTANCES WILL THE KABUTO PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE KABUTO MATERIALS; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE KABUTO PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE’S OPERATION; OR (H) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUG, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE KABUTO PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE KABUTO PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY.

THE KABUTO PARTIES’ TOTAL LIABILITY IN CONNECTION WITH OR ARISING OUT OF THESE TERMS AND THE SERVICES, WHETHER IN CONTRACT, TORT, STATUTE OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT EXCEED TEN UNITED STATES DOLLARS ($10.00 US) OR THE AMOUNT PAID BY YOU, IF ANY, IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE INITIAL EVENT GIVING RISE TO THE LIABILITY, WHICHEVER IS LESS.  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY LOSS OR DAMAGES THAT ARISE OUT OF KABUTO’S ACTS, ERRORS OR OMISSIONS, THE LOSS OR DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE NOT SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF.

YOU ACKNOWLEDGE THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE UNKNOWN OR ARE UNSUSPECTED.  ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT APPLICABLE, CALIFORNIA CIVIL CODE § 1542, THAT OTHERWISE MIGHT LIMIT YOUR WAIVER OF SUCH CLAIMS. CALIFORNIA CIVIL CODE §1542 STATES: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES; THEREFORE SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

 

17.  GOVERNING LAW, VENUE, AND JURISDICTION

These Terms and all claims arising from or related to your use of any aspect of the Service will be governed by and construed in accordance with the laws of the State of California, except California’s conflict of law rules.  These Terms and all aspects of the Service, including any User Software, will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, even if otherwise applicable.

With respect to any disputes or claims not subject to arbitration as set forth in Section 18, you agree to exclusive jurisdiction in the state and federal courts in Santa Clara County, California.  IN ADDITION, EACH PARTY HEREBY EXPRESSLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION, PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, RELATED TO, UNDER OR IN CONNECTION WITH THESE TERMS OR ANY TRANSACTION CONTEMPLATED HEREBY, AND EACH PARTY AGREES THAT ANY SUCH ACTION, PROCEEDING OR LITIGATION SHALL BE TRIED BEFORE A JUDGE AND NOT A JURY.  Notwithstanding any other provision of these Terms, for any Excluded Dispute (defined below) each party may seek injunctive or other equitable relief from any court of competent jurisdiction.

Regardless of any statute or law to the contrary, you agree that any claim or action related to use of any element of the Service or these Terms must be filed within one year after such claim or action accrues. Otherwise, you shall be deemed to have waived the claim or action.

Neither you nor Kabuto will participate in a class action or class-wide arbitration for any claims covered by these Terms.

 

18. DISPUTES AND ARBITRATION

You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor disputes and take action associated with those disputes (e.g., revoking membership).

In the event that you have a dispute with Kabuto regarding the Service or these Terms, you must submit a description of the issue to Kabuto both via email to legal@kabuto.com and via mail to 920 Stewart Drive, Suite 100, Attn: Legal Department, Sunnyvale, CA 94085 within thirty (30) days of the event giving rise to the dispute.  Kabuto will then have thirty (30) days during which we may address your complaint.  In the event that we do not address or resolve your complaint within thirty (30) days, you agree to proceed solely in accordance with the dispute-resolution process detailed below.

You and Kabuto agree that, except for disputes relating to the infringement of intellectual property (such as trademarks, trade dress, copyright and patents), or where you or Kabuto are seeking a preliminary injunction (“Excluded Disputes”), all disputes (whether or not such dispute involves a third party) with regard to, arising out of or relating to these Terms or any aspect of the Service, will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and you hereby expressly waive trial by jury.

Following the conclusion of the above-described informal resolution period, and except for Excluded Disputes, any controversy or claim arising out of or relating to these Terms or your use of the Service shall be resolved, on an individual basis, by arbitration administered by the American Arbitration Association (“AAA”) pursuant to its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (“AAA Rules”) then in effect (except as modified by this Section of these Terms).  Such arbitration shall be governed by the procedural and substantive laws of the State of California, without reference to choice-of-law rules or principles.  The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.  The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration athttp://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004177.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Unless you and Kabuto agree otherwise, the arbitration will be conducted in Santa Clara County, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Kabuto submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

The arbitrator will render a final, binding award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with these Terms as to the types and the amounts of damages for which a party may be held liable.  Without limiting the foregoing, any provision of applicable law notwithstanding, the arbitrator will not have authority to award punitive or exemplary damages. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

The prevailing party shall be awarded its costs (including witness costs and expert witness fees, if any), arbitration costs, and reasonable attorney’s fees as part of the award.  You agree that any action at law or in equity relating to the arbitration provision of these Terms will be filed only in the state or federal courts located in Santa Clara County, California or, alternatively, in the event that such venue will cause undue economic or physical hardship of the claimant, in the county in which the claimant is domiciled at the time the alleged cause of action is asserted, provided that such venue is within the continental U.S., and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

You and the Kabuto Parties retain the right to seek remedies in small claims court for disputes or claims within that court’s jurisdiction, unless such action is transferred, removed or appealed to a different court.  Except as so provided, you understand and agree that, under these Terms, you will not have the right to file suit in a court of general jurisdiction to assert any allegation, claim, or cause of action you may have against any and/or all of the Kabuto Parties, or to have a jury trial on any allegation, claim, or cause of action you may assert.  You understand and agree that, under these Terms, you will not be able to participate as a representative or member of any class of claimants pertaining to that claim.

 

19.  MISCELLANEOUS 

A.    SEVERABILITY; ENTIRE AGREEMENT; WAIVER

If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable during arbitration or by a court of competent jurisdiction, then that provision will be deemed severable from the remainder of these Terms and will not affect the validity or enforceability of the remaining provisions.  This is the entire contract between you and us regarding the Service and supersedes any prior agreement regarding your use of the Service.  These Terms will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance. 

B.    ASSIGNMENT AND TRANSFER

We may assign, transfer, or otherwise dispose of our rights and obligations under this contract, in whole or in part, at any time without notice.  You may not assign this contract or transfer any rights to use the Service.

C.    INDEPENDENT CONTRACTORS; NO THIRD-PARTY BENEFICIARIES

Kabuto and you are not legal partners or agents; instead, our relationship is that of independent contractors.  This contract is solely for your and our benefit.  It is not for the benefit of any other person, except for permitted successors.

20.  CONTACT INFORMATION

You may contact Kabuto at legal@kabuto.com or by mail sent to 920 Stewart Drive, Suite 100, Attn: Legal Department, Sunnyvale, CA 94085.