Last Updated: May 15, 2021
This Site Terms of Service Agreement (“Terms”) governs your use of the Kinekt marketplace platform offered by Jason Euler Ventures LLC doing business as Kinekt (“we”, “us”, or “Company”), including our website (kinektme.com), mobile application (“App”), and services we provide through them (collectively, the website, App, and services referred to as our “Site”). “You” refers to you as a user of the Site.
These Terms apply to users of, including visitors to, our Site. Use of our Site is also subject to our current Acceptable Use Policy . Your use of our Site as a Talent User (defined below) is governed by the Talent Terms of Service. (“Talent Terms”).
PLEASE READ THESE TERMS CAREFULLY. By using our Site or otherwise indicating your acceptance (for example, by agreeing when creating or logging into your account, clicking “I Agree,” etc.), you represent and warrant that you have read, understand, and agree to be bound by these Terms. If you do not agree, do not access or use our Site.
ARBITRATION NOTICE: Section 17 of these Terms contains provisions governing how claims that you and Company have against each other are resolved, including any claims that arose or were asserted prior to the “Last Updated” date at the top of these Terms. It contains an arbitration agreement that will, with limited exceptions, require disputes between you and Company to be submitted to binding and final arbitration. Unless you opt out of the arbitration agreement as described in Section 17: (1) you may pursue claims and seek relief against us only on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you waive your right to seek relief in a court of law and to have a jury trial on your claims.
Table of Contents
- Company Marketplace
- Company Videos
- Business Company Videos
- Additional Terms
- Fees and Payment
- Copyright and Intellectual Property Policy
- Third Party Content and Interactions
- Changes to our Site
- Termination and Reservation of Rights
- Disclaimers and Limitations on our Liability
- Arbitration Agreement and Waiver of Certain Rights
- Other Provisions
- Changes to these Terms
- Company Marketplace
By creating an account on our Site, you agree to provide true, accurate, current, and complete information. You agree not to create a Site account using a false identity or providing false information or if you have previously been removed or banned from our Site. You are responsible for maintaining the confidentiality of your Site account information, including your username and password. You are responsible for all activities that occur on or in connection with your Site account and you agree to notify us immediately of any unauthorized access or use of your Site account. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your Site account.
- Company Videos
Through our Site, you may obtain personalized videos (“Company Videos”) from certain individuals or celebrities, including musicians, managers, agents, writers, promoters, athletes, actors, performers, artists, influencers, and others (each, a “Talent User”). You may submit a request to a Talent User for a Company Video that is personalized for you or a third party that you identify as a recipient (“Recipient”).
You acknowledge and agree that the Talent User has sole discretion to determine how to fulfill your request and the content of the Company Video created, and may not follow your request exactly. We reserve the right to reject any request in our sole discretion. The Talent User has up to seven days (at our sole discretion) to fulfill or decline your request. Once your request is fulfilled, your payment method will be charged the amount specified on the Talent User’s booking page on our Site at the time you submitted the request.
Company Videos are licensed, not sold. You are buying the right (or license) to use it, only as specified, not the actual Company Video itself nor the ownership rights to the Company Video.
Subject to your payment in full, the Talent User hereby grants to you the following limited rights to use the Company Video (other than a Business Company Video) solely for your own personal, non-commercial, and non-promotional purposes, subject to these Terms: a non-exclusive, royalty-free, fully paid, worldwide, sublicensable, revocable license to use, reproduce, distribute, and publicly display that Company Video, in any and all media (for example, on social media platforms), whether now known or hereafter invented or devised.
You may not sell, re-sell, or encumber your rights in any Company Video. You may sublicense your rights in a Company Video only to the extent necessary for you to use the Company Video as permitted under these Terms (for example, sharing it (if it is not a Business Company Video) with friends on a social media platform or sending it to a Recipient for personal, non-commercial, and non-promotional purposes as set forth above).
You may use a Company Video only in accordance with these Terms, which includes our Acceptable Use Policy.[AM3] We may terminate all or part of the foregoing licenses at any time for any reason. We reserve the right to remove a Company Video from our Site at any time for any reason without any notice to you.
- Business Company Videos
Some Talent Users in the United States may offer Company Videos for the promotion of a Recipient that is a single U.S. commercial entity, brand, or business (“Business”) through our Site (each, a “Business Company Video”). Except as noted, each Business Company Video is a Company Video under these Terms. When you submit a request for a Business Company Video, you must specifically identify the Business, the types of goods or services that it offers, as well as the specific product, service, or brand that you request the Talent User to mention or refer to, and any other requested information.
Subject to your payment in full, the Talent User hereby grants to you the following limited rights to use the Business Company Video solely for the reasonable promotional purposes of the Business for 30 days from the date the Business Company Video is sent by Company to you (and for any additional periods that have been agreed to, in writing, by Company and you), subject to these Terms:
- a non-exclusive, royalty-free, fully paid, worldwide, sublicensable, revocable license to use, reproduce, distribute, and publicly display that Business Company Video only on or in one of the following (as designated at the time of the request): (A) one website wholly-owned, operated, and controlled by the Business; (B) one social media account, such as Facebook, Instagram, LinkedIn, SnapChat, TikTok, or Twitter; in each case, where the website and social media account is wholly-owned, operated, and controlled by the Business, along with the right to advertise and promote the display of the Business Company Video on the social media account through advertising only on the applicable social media platform; (C) one communication sent through a Business-operated and controlled channel of communication (such as an email blast or text message); (D) if the Business has fewer than 1,000 employees, one event conducted and operated by the Business (for example, a company-wide meeting).
- You may sublicense your rights in a Business Company Video only to the extent necessary for you to use the Business Company Video as permitted under these Terms (for example, posting it on a website or social media account as set forth in this section 3.b.).
- No other use is authorized under these Terms. To request other uses (including, without limitation, examples such as additional time; use on additional websites, social media accounts, or communications; the ability to add a Business name or logo as a watermark; ownership rights; etc.), contact us at email@example.com.
- Business Company Video Representations and Warranties: You represent and warrant that:
- the Business is located, and operates, in the U.S. and the Business Company Video will be directed to a U.S. audience;
- any information provided to Talent is factually correct and not misleading and is not disparaging or defamatory;
- you and the Business will comply with all applicable laws, rules, requirements, orders, and regulations, including the Federal Trade Commission “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” which may require adding an appropriate hashtag (e.g. #ad, #sponsored) or other disclosure to the Business Company Video; and
- you have all rights necessary (including from the Business) to request a Business Company Video on behalf of the Business, to agree to these Terms on behalf of the Business, and to request and use the Business Company Video as authorized in these Terms, including all rights necessary to use any information, Business name, trademark, trade name, trade dress, or logos provided in connection with your Submission.
- You will not violate any rights of Company and/or any third party through any use of the Site, Company Video, Business Company Video, and/or any other interaction with Company and/or related materials and/or entities.
You acknowledge and agree that:
- Company will not be liable or responsible for any Company Video or other offering requested by you or any Submission (defined below) you make;
- you have no expectation of privacy with respect to any Company Video requested by you or any Submission (defined below) you make, and that you will not make any request or Submission that infringes on the privacy or other rights of a third party;
- the Company watermark on each Company Video must remain intact and you agree not to edit, change, modify, cover, crop, or remove the watermark from any Company Video or assist or encourage any third party to do so; you further agree not to edit, change, modify, or create any derivative work of a Company Video or assist or encourage any third party to do so;
- if you breach any provisions of these Terms, and/or we terminate your access to our Site, and/or we remove and/or ban you (and/or any Site account you created and/or control), your license to use any Company Video, or other offering under these Terms terminates and you must: promptly remove all copies of any Company Video, and any other offering in your possession and/or control, including from any social media platform; notify any Recipient of the termination and instruct them to do the same, and take any other action we reasonably request, including identifying each Recipient; and
- without limiting any of our rights, any request you submit through our Site may be rejected by us or by a Talent User; if that happens more than once, we may terminate your access to our Site, remove or ban you (and any Site account you created or control), or take other appropriate action in Company’s sole discretion, including terminating your license to use any Company Video or other offering under these Terms and requiring you to take the actions outlined in Section 4.d. Notwithstanding anything to the contrary, we may terminate your access to the Site and/or your license to use any Company Video(s) and/or any other materials related to Company at any time, for any reason, in our sole discretion.
- Some products or services offered through the Site may have additional terms and conditions (“Additional Terms”). If Additional Terms apply, we will make them available to you in connection with that product or service. By using that product or service, you agree to the Additional Terms. To the extent that the Additional Terms conflict with any of these Terms, these Terms will govern unless the Additional Terms expressly say that some or all of these Terms don’t apply.
- Age: You must be at least 18 years old to use our Site.
- Eligibility Representations and Warranties: You represent and warrant that:
- you have not been prohibited from using or accessing any aspect of our Site by us or pursuant to any applicable law or regulation;
- you will comply with all applicable terms of any third party payment provider we select, and you are not on a prohibited list of that payment provider;
- you (and any Site account that you created or control) have not been previously banned or removed from our Site for any reason; and
- you are not a convicted sex offender.
- Export Control: You may not use, export, import, or transfer any part of our Site except as authorized by U.S. law, the laws of the jurisdiction in which you use or access our Site, or any other applicable laws. In particular, but without limitation, no part of our Site may be exported or re-exported: (i) into any country embargoed by the U.S.; or (ii) 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 our Site, you represent and warrant that: (x) 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 (y) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use our Site for any purpose prohibited by law. You acknowledge and agree that products, services, and technology provided by Company are subject to the export control laws and regulations of the U.S. You will comply with those laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer Company products, services, or technology, either directly or indirectly, to any country in violation of those laws and regulations.
- Fees and Payment
- Fees: The fee for a Company Video or other offering is specified on the Talent User’s booking page on our Site when you make your request. You agree to pay all amounts due in accordance with the payment terms in effect when you submit your request or purchase merchandise, including any applicable service, transaction, or processing fees.
- Currency: All transactions are in U.S. dollars (“USD”) unless expressly otherwise specified at point of purchase.
- App for iOS: If a Talent User rejects your request for a Company Video or the Company Video is not provided, your Company account will be issued a credit (in USD only) for the value of your purchase. The credit will be maintained in your account and may be redeemed only for purchases on the App for iOS. If, when you make a purchase while logged into your COMPANY account on the App for iOS, your account has a credit balance, the balance will be redeemed for that purchase (until fully redeemed) and you will be charged for any remaining portion of the price. Credit balances are not refundable, cannot be transferred, cannot be used outside of the App for iOS, and expire or extinguish immediately when redeemed. By making a purchase on the App for iOS, you represent that you are a resident of a country or territory in which payment in the local currency is supported by the App (as listed here[AM4] ). If you are a resident of a country or territory in which payment in the local currency is not supported by the App for iOS (or located in a country or territory in which payment in the local currency is not supported by the App for iOS), your purchase will not be permitted; however, if such purchase is permitted, Company reserves the right to cancel your request and no refund will be issued. The countries and territories and respective local currencies supported by the App for iOS are determined by Apple and not by Company and are subject to change at any time.
- Website and App for Android: By providing your payment information, you agree that Company may place a pre-authorization hold and, after your request has been fulfilled, authorize the payment provider to immediately charge you for all amounts due and payable with no additional notice to or consent from you.
- In addition, if the offering permits (e.g., Company Videos on kinektme.com), you may choose to designate an additional amount as a “tip” to the Talent User who fulfilled your request. You acknowledge that Company does not mandate any such tip or gratuity. You agree to pay any amount you authorize as a tip for the Talent User; a tip is not refundable under any circumstances.
- Company reserves the right (but is under no obligation) to cancel your Company Video request if: (i) your payment method is declined; or (ii) you have previously been banned or removed from our Site for any reason. Company also reserves the right at any time to change its fees and payment procedures, including its payment options and terms, either immediately upon posting on our Site or by other notice to you.
- Payment Questions: If you have a question about a purchase made on the App or a charge to your payment card, please contact us at firstname.lastname@example.org. We have the sole discretion to determine how billing disputes between us will be resolved.
- You acknowledge and agree that each Company Video or other offering from a Talent User is owned by Company .
- You hereby grant to us a non-exclusive, royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised (including social media platforms), to use, reproduce, license, distribute, modify, adapt, reformat, publicly perform, publicly display, create derivative works of, and otherwise use the following for the purposes of operating and providing our Site, developing and improving our products and services, and advertising, marketing, and promoting our Site and our products and services: (i) any request (video, text, or otherwise) that you make or send to any Talent User, including information concerning any Recipient; and (ii) any submission that you make to Company, whether through our Site, a social media platform, third party website, or otherwise, including a reaction video, idea, intellectual property, publicity rights, Feedback (defined below), review, photo, video, email, text, post, or other communication, whether relating to you, or a third party (i) and (ii) each, individually, and collectively, a “Submission”). You represent and warrant that you either: (x) own all rights to any Submission; or (y) have all rights necessary, including with respect to any third party that contributed to, is included in, or is referred to, in any Submission, to grant to us the foregoing rights. You will not make any Submission that is confidential or proprietary or that contains or includes any information that you do not have the right to disclose or that you or any Recipient do not wish to be disclosed. Company will not be responsible or liable for any use or disclosure of a Submission, including any personal information belonging to you, a Recipient, or a third party.
- We may, for any reason, refuse to accept or transmit a Submission or refuse to remove a Submission from our Site. Further, we reserve the right to decide whether a Submission violates these Terms and may, at any time, without notice to you and in our sole discretion, remove your Submission, terminate your access to our Site, remove or ban you (and any Site account you created or control), or take other appropriate action in our sole discretion for violation of these Terms.
- Company desires to avoid the possibility of future misunderstandings if a project developed by any Company Party (as defined below) may seem similar to your Submission. If your Submission consists of any idea, suggestion, proposal, plan, or other material related to our business (individually, and collectively, “Feedback”), you acknowledge and agree that you are submitting that Feedback at your own risk and that Company has no obligation (including no obligation of confidentiality or privacy) with respect to that Feedback, and you grant to Company a non-exclusive, royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised, and insofar as it relates to all forms of intellectual property whether now known or hereinafter devised, to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works of (for example, translations, adaptations, or other changes), and otherwise use and exploit in any manner (including commercially), any and all Feedback.
- You hereby waive any and all moral rights or “droit moral” that you may have in any Submission, including Feedback, and you represent and warrant that no third party has any moral, “droit moral,” or other rights in Submission, including Feedback.
Copyright and Intellectual Property Policy
- Digital Millennium Copyright Act Notice: We respond to notices of alleged copyright infringement and terminate access to our Site for repeat infringers. If you believe that materials on our site infringe copyright, please send the following information to the Copyright Agent named below:
- your address, telephone number, and email address;
- a description of the work that you claim is being infringed;
- a description of the material that you claim is infringing and are requesting be removed along with information about where it is located;
- a statement that you have “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.”;
- an electronic or physical signature of the copyright owner (or a person authorized to act for the copyright owner); and
- a statement by you, made under penalty of perjury, that the information you are providing is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
- Copyright Agent:
Jason Euler Ventures LLCd/b/a Kinekt
1650 N. Camellia St.
Tempe, AZ 85281
If you do not follow these requirements, your notice may not be valid. Please note, only notices of alleged copyright infringement should be sent to our Copyright Agent.
- Termination Policy: If we determine that you are a repeat infringer, we may terminate your access to our Site, remove or ban you (and any Site account you created or control), and take other appropriate action in our sole discretion.
Third Party Content and Interactions
- Our Site may contain features and functionalities that link to or provide you with access to third party content, that is completely independent of Company, including Company Videos, websites, platforms, directories, servers, networks, systems, information, databases, applications, software, programs, products or services, and the Internet in general. Your interactions with third parties, including users and Talent Users, found on or through our Site are solely between you and the third party. You should make whatever investigation you feel necessary or appropriate before proceeding with any contact or interaction, in connection with our Site or otherwise. However, you agree not to contact or interact with any Talent User except as expressly permitted through our Site. You also agree that Company may, in its sole discretion, intercede in any dispute and you will reasonably cooperate with Company if it does so. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities of any kind or nature incurred as the result of any such interaction. You hereby release each Company Party (defined below) from claims, demands, and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes or our Site. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY OTHER SIMILAR APPLICABLE STATE STATUTE), WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY”.
- From time to time, an entity may be identified on a Talent User’s booking page or be associated with the Talent User elsewhere on our Site as a charitable organization or a recipient of funds that are being raised (“Charity”). For example, the Talent User’s booking page may indicate that all or a portion of the Talent User’s revenue from a Company Video will be given to the Charity. Those arrangements are strictly between the Talent User and the Charity. Company is not a sponsor of, does not endorse, and is not affiliated with the Charity and is not a commercial co-venturer with respect to such arrangements (unless otherwise expressly stated in writing by Company). Unless expressly stated, Company does not control and makes no warranties about the Charity or any donation to the Charity.
Changes to our Site
- You acknowledge and agree we may change or discontinue any aspect of our Site at any time, without notice to you
Termination and Reservation of Rights
- You may cancel your Site account at any time by contacting a member of the Company team at email@example.com. We reserve the right to terminate access to our Site to any person, including you, at any time, for any reason, in our sole discretion. If you violate any of these Terms, your permission to use our Site automatically terminates.
- You agree to indemnify, defend, and hold harmless Company and its parents, subsidiaries, affiliates, officers, employees, directors, shareholders, agents, partners, vendors, and licensors (each, a “Company Party,” and collectively, “Company Parties”) from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature arising from, out of, in connection with, or relating to: (a) these Terms; or (b) use of our Site. Company may select counsel for and control the defense of any claim that you are indemnifying. You will reasonably cooperate with us in connection with any claim.
Disclaimers and Limitations on our Liability
- You acknowledge and agree that your use of our Site is at your own risk and that our Site is provided on an “as is” and “as available” basis. To the extent permitted by applicable law, the Company Parties disclaim all warranties, conditions, and representations of any kind, whether express, implied, statutory, or otherwise, including those related to merchantability, fitness for a particular purpose, non-infringement, and arising out of course of dealing or usage of trade.
- In particular, the Company Parties make no representations or warranties about the accuracy or completeness of content available on or through our Site or the content of any social media platform or third party website linked to or integrated with our Site. You acknowledge and agree that the Company Parties will have no liability for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury, property damage, or other harm resulting from your access to or use of our Site; (iii) any unauthorized access to or use of our servers, any personal information, or user data; (iv) any interruption of transmission to or from our Site; (v) any bugs, viruses, trojan horses, or the like that may be transmitted on or through our Site; or (vi) any damages, losses, costs, expenses, or liabilities of any kind incurred as a result of any content posted or shared through our Site.
- You acknowledge and agree that any material or information downloaded or otherwise obtained through our Site, including any Company Video, is done at your own risk and that you will be solely responsible for any damages, losses, costs, expenses, or liabilities arising from or in connection with doing so. No advice or information, whether oral or written, obtained by you from us or through our Site, including through a Company Video, will create any warranty not expressly made by us.
- You acknowledge and agree that when using our Site, you will be exposed to content from a variety of sources, and that Company is not responsible for the accuracy, usefulness, safety, legality, or intellectual property rights of or relating to any such content. You further understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, objectionable, or harassing, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against any Company Party with respect thereto.
- To the fullest extent permitted by applicable law, you acknowledge and agree that in no event will any Company Party be liable to you or to any third party for any indirect, special, incidental, punitive, or consequential damages (including for loss of profits, revenue, or data) or for the cost of obtaining substitute products, arising out of or in connection with these Terms, however caused, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability, or otherwise, and whether or not Company has been advised of the possibility of such damages.
- To the maximum extent permitted by applicable law, our total cumulative liability to you or any third party under these Terms, including from all causes of action and all theories of liability, will be limited to and will not exceed the fees actually received by Company from you during the 12 months preceding the claim giving rise to such liability.
- Certain jurisdictions do not allow the exclusion or limitation of certain damages. If those laws apply to you, some or all of the above exclusions or limitations may not apply to you, and you might have additional rights.
- You agree that the limitations of damages set forth above are fundamental elements of the basis of the bargain between Company and you.
Arbitration Agreement and Waiver of Certain Rights
- Arbitration: You and Company agree to resolve any disputes between you and Company through binding and final arbitration instead of through court proceedings. You and Company each hereby waive any right to a jury trial of any controversy, claim, counterclaim, or other dispute arising between you and Company relating to these Terms or our Site (each a “Claim,” and collectively, “Claims”). Any Claim will be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision will be in writing, will include the arbitrator’s reasons for the decision, will be final and binding upon the parties, and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs, or other documents submitted or exchanged, any testimony or other oral submissions, and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
- Costs and Fees: If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
- No Preclusions: This arbitration agreement does not preclude you or Company from seeking action by federal, state, or local government agencies. You and Company each also have the right to bring any qualifying Claim in small claims court. In addition, you and Company each retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed to be either incompatible with these Terms or a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
- No Class Representative or Private Attorney General: You and Company each agree that with respect to any Claim, neither may: (i) act as a class representative or private attorney general, or (ii) participate as a member of a class of claimants. You agree that no Claim may be arbitrated on a class or representative basis. The arbitrator can decide only individual Claims (whether brought by you or Company). The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
- Severability/No Waiver/Survival: If any provision of this Section 17 is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed and the remainder of this Section 17 will continue in full force and effect. No waiver of any provision of this Section 17 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver will not waive or affect any other provision of these Terms. This Section 17 will survive the termination of your relationship with Company.
- 30-Day Opt-Out Right: You have the right to opt out of the provisions of this Arbitration Agreement by sending, within 30 days after first becoming subject to this Arbitration Agreement, written notice of your decision to opt out to the following address: Jason Euler Ventures LLC d/b/a Kinekt, 1650 N. Camellia St., Tempe, AZ 85281. Your notice must include your name and address, any usernames, each email address you have used to submit your Company Video requests or set up an account on our Site (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You agree that if you opt out of this Arbitration Agreement, all other parts of these Terms 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.
- LIMITATIONS: This Section 17 limits certain rights, including the right to maintain certain court actions, the right to a jury trial, the right to participate in any form of class or representative claim, the right to engage in discovery except as provided in AAA rules, and the right to certain remedies and forms of relief. In addition, other rights that you or Company would have in court may not be available in arbitration.
- Force Majeure: Under no circumstances will any Company Party be liable for any delay or failure in performance due in whole or in part to any acts of God (such as earthquakes, storms, floods, etc.), unavoidable accidents, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes, pandemics, epidemics, endemics, outbreaks, plagues, or any other event or cause beyond the reasonable control of any Company Party.
- Choice of Law and Jurisdiction: These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature arising from or relating to these Terms or our Site will be filed only in the state or federal courts located in Los Angeles, California. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
- Severability: If any provision of these Terms is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed from these Terms and will not affect the enforceability of any other provision.
- No Waiver or Amendment: The failure by Company to enforce any right or provision of these Terms will not prevent Company from enforcing such right or provision in the future and will not be deemed to modify these Terms.
- Assignment: Company may, at any time, assign its rights and obligations under these Terms, including to an affiliated entity or in connection with a sale of assets, merger, acquisition, reorganization, bankruptcy, other transaction, or by operation of law.
- Miscellaneous: The term “including” in these Terms will be interpreted broadly and will mean “including, without limitation.” Titles are for convenience only and will not be considered when interpreting these Terms.
Changes to these Terms
- We may change these Terms. If we do, we will post the revised Terms on our Site and update the “Last Updated” date at the top of these Terms. The revised Terms will be effective immediately if you accept them (for example, by agreeing when you create an account or login to an existing account, or using or continuing to use our Site after the revised Terms have been posted); otherwise, they will be effective 30 days after posting.
Additional Site Terms
PLEASE READ THE FOLLOWING CAREFULLY. By using the product or service, you agree to the applicable additional terms that apply (which are Additional Terms as described in Section 5 of the Site Terms of Service (“Site Terms”)). These Additional Terms will be governed by, and are incorporated into, the Site Terms. Terms that are defined in the Site Terms will have the same meaning in these Additional Terms.
From time to time, we may change these Additional Terms. If we do, we will give you notice by posting them on our Site and updating the “Last Updated” date. The revised Additional Terms will be effective immediately. By using or continuing to use this product or service, you represent and warrant that you have read, understand, and agree to these Additional Terms.
COMPANY CALLS ADDITIONAL SITE TERMS
Last Updated: April 30, 2021
- COMPANY CALLS
- A Talent User may offer you the opportunity to participate in a Company Calls real-time video chat (each, a “Call”) using the App.
- The details of a Call will be specified on the Call booking page on the App, including:
- the approximate length;
- any limits on the number of or criteria for you and other individuals included by you who can participate in the Call (collectively, “Participants”), for example, a maximum number of Participants per Call;
- any participation criteria;
- any booking fee; and
- any other conditions, limitations, restrictions, or information.
- You will inform other Participants of these Additional Terms as they will be subject to these Additional Terms as Participants.
- You acknowledge that the Talent User has the sole discretion whether or not to participate in a Call.
- You may not reschedule, substitute, or exchange a Call after booking.
- You may end your participation in a Call at any time. Company or the Talent User may end a Call at any time. If a Call is ended due to another’s violation of the Acceptable Use Policy, you will promptly notify Company in writing at firstname.lastname@example.org.
- The details of a Call will be specified on the Call booking page on the App, including:
- You may book a Call by paying in full using a valid payment card through the applicable third party payment provider we select as set forth in the Site Terms.
- Your payment card will be charged at the beginning of the Call and is not refundable, unless determined otherwise by Company in its sole discretion due to extraordinary circumstances which will be considered by company after receipt of a refund request sent to email@example.com.
- You acknowledge and agree, and will notify other Participants, that:
- Company may take a photo of you, other Participants and the Talent User during a Call (“Call Photo”), which will be made available to you at the end of that Call;
- any submission made by you or other Participants in connection with the Call (including any chat, comment, audio, image, video, idea, intellectual property, publicity rights, Feedback, review, Call Photo and any other photo, email, text, post, element, or other communication) is a Submission under the Site Terms;
- Submissions will not be private and you and other Participants should not share or disclose any personal, private, or sensitive information relating to you or a third party;
- you may not record a Call in any way;
- you and other Participants may use the Call Photo solely for your and other Participant’s own personal, non-commercial, and non-promotional purposes. Any such use is (subject to these Additional Terms): a non-exclusive, royalty-free, fully paid, worldwide, sublicensable, revocable license to use, reproduce, distribute, and publicly display your Call Photo only on social media platforms and personal websites; in text and email messages; and in other personal storage media;
- in addition to the Site Terms, each Submission is subject to the Acceptable Use Policy and may not, among other things:
- violate, infringe, or misappropriate the intellectual property, privacy, publicity, moral or “droit moral,” or other legal rights of any third party; or
- communicate anything that is, or that incites, promotes, facilitates or encourages action that is, explicitly or implicitly: offensive, dangerous, gratuitously violent, defamatory, illegal (including illegal gambling, games of chance, sweepstakes, or contests), a violation of law or the rights of any third party, abusive, harassing, threatening, hateful, racist, derogatory, harmful to any reputation, pornographic, indecent, profane, obscene, or otherwise objectionable (including nudity);
- you and other Participants grant to the Talent User the following limited rights to use the Call Photo solely for their own personal, non-commercial, and non-promotional purposes (subject to these Additional Terms): a non-exclusive, royalty-free, fully paid, worldwide, sublicensable, revocable license to use, reproduce, distribute, and publicly display your Call Photo only on social media platforms and personal websites; in text and email messages; and in other personal storage media;
- in addition to the rights you grant under the Site Terms, in connection with each Call you and other Participants grant to Company:
- an exclusive (including exclusive as to you, but excluding the license granted to any platform or media as set out below), royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license in any and all manner and media, whether now known or hereinafter invented or devised to use, publish, reproduce, record, modify, edit, and display your name, image, voice, appearance, performance, likeness, and Submission, including in or in connection with advertising, marketing, promoting, republishing, rebroadcasting, and re-airing the Call and the Call Photo;
- to any platform or media on which your Submission is stored, performed, recorded, republished, rebroadcast, re-aired, or displayed any rights necessary or required by the platform or media in order to store, perform, record, republish, rebroadcast, re-air, or display your Submission; and
- the right to record the Call and Call Photo and to edit or modify them and your Submission (for example, add music or captions, capture screenshot or excerpts, or otherwise). The recordings and your Submission (for example, an edited or modified version thereof) may be included in a compilation with content from or featuring others;
- if you believe that another Participant, Talent or a Call activity has violated the Acceptable Use Policy , you will promptly notify Company in writing at firstname.lastname@example.org;
- Company may monitor any Call, and Company retains the right, in its sole discretion, to cancel any Call or block any User; and
- Company will not be responsible or liable for any Submission or Talent Content (including from another Participant or Talent User).
- In addition to the indemnification in Section 15 of the Site Terms, you also agree to indemnify, defend, and hold harmless the Company Parties from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature, arising from, out of, in connection with, or relating to: (a) the Call; (b) the Call Photo; (c) other Participants; (d) these Additional Terms; or (e) use of our Site.
Acceptable Use Policy
Last Updated: May 15, 2021
Your use of our Site (collectively, the Company website, mobile application (“App”), and services we provide through them) is governed by this Acceptable Use Policy. Terms that are defined in the Site Terms of Service or Talent Terms of Service will have the same meaning in our Acceptable Use Policy.
You are responsible for your use of any Company Video, your Site account, our Site, and any Submission (if you are a Site user) or Talent Content (if you are a Talent User). Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful.
- You represent and warrant that:
- you will not use a false identity or provide any false or misleading information;
- you will not create an account if you (or any Site account that you created or controlled) have previously been removed or banned from our Site;
- you will not use or authorize the use of any Company Video for any purposes other than: (i) the specific limited purposes set forth in the Site Terms; (ii) those set out in any applicable Additional Terms; or (iii) if you are a Talent User, those set out in any other written agreement; and
- in connection with any Business Company Video, you will not request (if you are a User) or fulfill a request for (if you are a Talent User): (i) a Business or any other Recipient that is the subject of any criminal action, or that is involved in, connected with or promotes illegal or unlawful activity, violence or hate speech; or (ii) disparages or defames any person, entity, brand, or business.
- you will not:
- violate any law, regulation, or court order;
- violate, infringe, or misappropriate the intellectual property, privacy, publicity, moral or “droit moral,” or other legal rights of any third party;
- take any action (even if requested by another) that is, or submit, post, share, or communicate anything that is, or that incites or encourages, action that is, explicitly or implicitly: illegal, abusive, harassing, threatening, hateful, racist, derogatory, harmful to any reputation, pornographic, indecent, profane, obscene, or otherwise objectionable (including nudity);
- send advertising or commercial communications, including spam, or any other unsolicited or unauthorized communications;
- engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from our Site, including from any user of our Site;
- transmit any virus, other computer instruction, or technological means intended to, or that may, disrupt, damage, or interfere with the use of computers or related systems;
- stalk, harass, threaten, or harm any third party;
- impersonate any third party;
- participate in any fraudulent or illegal activity, including phishing, money laundering, or fraud;
- use any means to scrape or crawl any part of our Site;
- attempt to circumvent any technological measure implemented by us, any of our providers, or any other third party (including another user) to protect us, our Site, users, Recipients, or any other third party;
- access our Site to obtain information to build a similar or competitive website, application, or service;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide our Site; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
- For clarity, your use of any Company Video includes any use anywhere (on our Site or otherwise).
- You acknowledge and agree that we are not obligated to monitor access to or use of our Site by you or third parties (including monitoring any COMPANY Video, Talent Content, Submission, or Feedback), but we have the right to do so to operate our Site; enforce this Policy or our Terms; or comply with applicable law, regulation, court order, or other legal, administrative, or regulatory request or process; or otherwise.
Talent Terms of Service
Last Updated: May 15, 2021
This Talent Terms of Service Agreement (“Terms”) governs your use as a talent user of the Company marketplace platform offered by Jason Euler Ventures LLC doing business as Kinekt (“we”, “us”, or “Company”), including our website (kinektme.com), mobile application (“App”), and services we provide (collectively, the website, App, and services referred to as our “Site”). “You” and “Talent User” refer to you as a talent user of the Site.
These Terms apply solely to Talent Users of our Site. Use of our Site is also subject to our current Acceptable Use Policy. Any use by you of our Site other than as a Talent User is governed by the Site Terms of Service. (“Site Terms”).
PLEASE READ THESE TERMS CAREFULLY. By using our Site as a Talent User or otherwise indicating your acceptance (for example, by agreeing when creating or logging into your account, clicking “I Agree,” etc.), you represent and warrant that you have read, understand, and agree to be bound by these Terms. If you do not agree, do not access or use our Site as a Talent User.ARBITRATION NOTICE: Section 19 of these Terms contains provisions governing how claims that you and Company have against each other are resolved, including any claims that arose or were asserted prior to the “Last Updated” date at the top of these Terms. It contains an arbitration agreement that will, with limited exceptions, require disputes between you and Company to be submitted to binding and final arbitration. Unless you opt out of the arbitration agreement as described in Section 19 : (1) you may pursue claims and seek relief against us only on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you waive your right to seek relief in a court of law and to have a jury trial on your claims.