The words “use” or “using” in this agreement, mean any time an individual (a “user”), directly or indirectly, with or without the aid of a machine or device, does or attempts to access, interact with, use, display, view, print or copy from the Site, transmit, receive or exchange data or communicate with the Site, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of the Site, for any purpose whatsoever. This agreement does not cover your rights or responsibilities with respect to third party content or sites or any links that may direct your browser or your connection to third party sites or pages. This is the entire and exclusive agreement between you and us regarding use of the Site and it cannot be modified, except as specifically described above.
2. Age Limitation on Users. This Site is offered and made available only to users 13 years of age or older. If you are not yet 13 years old please discontinue using the Site immediately.
3. User Conduct. As a member of the Kumby community, you are expected to treat other users with the same level of respect you would like yourself. Forum administrators will enforce banning users and deleting of topics when conduct becomes abusive or disruptive to the community. Kumby reserves the right to enforce such actions to all registered users of its community. Users caught attempting to disrupt the site via hacking or any programming means will be prosecuted with any and all legal measures available to Kumby.
4. Content. All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned or controlled by Kumby, its subsidiaries, affiliates, licensors or suppliers, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. Unless the context clearly requires otherwise or we explicitly say so in writing, the term “Site” includes “Content” as well.
Any unauthorized or prohibited use of any Content, may subject you to civil liability or criminal prosecution, or both, under applicable federal and state laws. We require users to respect our copyrights and other intellectual property rights. We likewise respect the intellectual property of others. On notice, we will act expeditiously to remove content on the Site that infringes the copyright rights of others and will disable the access to the Site and its services of anyone who uses them to repeatedly infringe the intellectual property rights of others.
6. Relevant information. Information you post is expected to be acceptable to general audiences. It is also expected to stay within genres of the discussion. Kumby reserves the right to use any information users post on the site as it sees fit including editing said material or deleting it.
7. Your Use of the Site. Your use of the Site is subject to all applicable local, state, national laws and regulations and, in some cases, international treaties. You shall not use or knowingly condone use of this Site by others, in any manner that is, attempts to, or is likely to:
• be, libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually, racially, culturally, ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory or abusive or which may or may appear to, impersonate anyone else; affect us adversely or reflect negatively on us, the Site, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person, firm or enterprise from using all or any portion, features or functions of the Site, or from advertising, linking or becoming a supplier to us in connection with the Site; send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming”; be used for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for a charge or through linking with any other web site or web pages;
• transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses or other potentially harmful programs or other material or information;
• modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of the Site or the rights or use and enjoyment of the Site by any other person, firm or enterprise;
• collect, obtain, compile, gather, transmit, reproduce, view or display any information, whether personally identifiable or not, concerning any other person, firm or enterprise, in connection with their or your use of the Site, unless you have obtained the express, prior permission of such other person, firm or enterprise to do so;
• use any “deep-link,” “page-scrape,” “robot,” “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site;
• attempt to gain unauthorized access to any portion or feature of the Site, other users’ accounts, names, passwords, User Information or any other systems or networks connected to the Site or to any Kumbys server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means or to use the Site in any manner which violates or is inconsistent with the terms and conditions of this agreement;
• violate or solicit others to violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order, any treaties or violate or infringe upon any intellectual property rights, rights of publicity or privacy, or any other rights of ours or of any other person, firm or enterprise.
Doing any of these things will result in Kumby banning you from the Site.
Users like to share interesting links and this is not discouraged on the Site. However, we will not tolerate links to inappropriate sites containing pornographic material or any illegal activity such as pirating of software.
8. Content control. With the large amount of posts per day, it is impossible to monitor everything. Kumby and its affiliates are not responsible for user messages or other related user content.
9. Postings. Portions of this Site provide you and other users an opportunity to submit, post, display, transmit and/or exchange information, ideas, opinions, photographs, images, video, creative works or other information, messages, transmissions or material to us, the Site or others (”Post” or “Postings”). Postings do not reflect the views of Kumby or its affiliates. Kumby and its affiliates shall not be liable for any Posting that is in violation of this agreement. In no event shall Kumby have or be construed to have any responsibility or liability for or in connection with any Posting whatsoever; however, if we determine, in our sole discretion and judgment, that any Posting does or may violate any of the terms of this agreement, we reserve the right, at any time and without limiting any and all other rights we may have under this agreement, at law or in equity, to: (a) refuse to allow you to Post; (b) remove and delete Postings; (c) revoke your right to use the Site; and/or (d) use any technological, legal, operational or other means available to Kumby to enforce the provisions of this agreement, including, without limitation, blocking specific IP addresses or deactivating your registration on Kumby.com.
If a Posting originates from you or your account, you hereby agree that: (a) you are placing the Posting in the public domain without reservation of any rights or further control over the Posting or its use and you specifically authorize Kumby to use such Posting in whole or in part, throughout the universe, in perpetuity in or on any and all media, now known or hereafter devised, and alone or together or as part of other information, content and/or material of any kind or nature; (b) you represent and warrant that (i) the Posting is original to you or fully cleared for use as contemplated herein, (ii) the Posting does and will not, in any way, violate or breach any of the terms of this agreement, (iii) the Posting does not contain libelous, tortious, or otherwise unlawful information, infringe or violate any copyright or other right, or contain any matter the publication or sale of which will violate any federal or state statute or regulation, (iv) the Posting is not obscene or in any other manner unlawful, (v) the Posting shall not be injurious to the health of the user, and (vi) we shall not be required to pay or incur any sums to any person or entity as a result of our use or exploitation of the Posting; (c) if your Posting incorporates the name, logo, brand, service or trademark, voice, likeness or image of any person, firm or enterprise, you specifically represent and warrant that you have the right to place such Posting in the public domain and grant Kumby the right to use such Posting as described above; and (d) Kumby has the right to delete, re-format and/or change your Posting in any manner that Kumby may determine (although you will not be responsible for any changes made by Kumby). Posting is for noncommercial purposes only and you may not Post in any manner which does or is intended to promote or generate revenue for any business enterprise or commercial activity.
10. Entertainment Advertising. Kumby relies on advertisers to help fund the services that we offer to our members. In order to continue our service, you agree that Kumby may display advertisements and promotions of all kinds in and with the services.
11. Account Access. Certain features or services offered on or through the Site may require you to open an account (including setting up a Kumby ID and password). We may, from time to time, also provide users with additional codes or passwords necessary to perform certain functions on the Site. You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. Your user name and password are personal to you and you may not allow any others to use your user name or password under any circumstances. You agree to notify Kumby immediately of any unauthorized use of your account or password, or any other breach of security. However, you may be held liable for losses incurred by Kumby or any other user of or visitor to the Site due to someone else using your Kumby ID, password or account. You may not use anyone else’s Kumby ID, password or account at any time without the express permission and consent of the holder of that Kumby ID, password or account. Kumby cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations or related to the theft, misappropriation, or permitted use by another of your user name or password.
In order to ensure that Kumby is able to provide high-quality services that are responsive to our members’ needs, you agree that Kumby has access to your account and records as reasonably needed to investigate complaints. Further, Kumby may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Kumby’ rights or property, or the rights or property of visitors to or users of the Site, including Kumby’ customers. Kumby reserves the right at all times to disclose any information that Kumby deems necessary to comply with any applicable law, regulation, legal process or governmental request. Kumby also may disclose your information when Kumby determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
Kumby may make changes to any products or services offered on the Site, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and Kumby makes no commitment to update the materials on the Site with respect to such products and services.
13. Disclaimer of Warranties.
You expressly understand and agree that:
Your use of the service is at your sole risk. The Site and all Content, products, and Postings are provided on an “AS IS” and “AS AVAILABLE” basis. Kumby and its third party service providers expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
Kumby makes no warranty that (i) the Services will meet your requirements, (ii) the Services will be uninterrupted, timely, secure, error-free, or free of malicious code (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, (v) that your email or voicemail messages will not be lost, and (vi) any errors in the software will be corrected.
Any material downloaded or otherwise obtained through the use of Kumby is done at your own discretion and risk, and you will be solely responsible for any potential damage to your computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by you from Kumby, our third party service providers, or through or from the site will create any warranty not expressly stated in the Agreement.
15. Limitation of Liability. Except where prohibited by law, in no event will Kumby or its affiliates or their respective officers, directors, employees, agents, licensors or suppliers be liable to you for any loss or damage, of any kind, direct or indirect, including, but not limited to, consequential, exemplary, incidental or punitive damages, or lost profits, even if Kumby has been advised of the possibility of such damages. Notwithstanding any claim that a sole or exclusive remedy which is provided in this agreement may or does fail of its essential purpose, you specifically acknowledge and agree that your sole and exclusive remedy for any loss or damage shall be to have Kumby, upon written notice from you to us, attempt to repair, correct or replace any deficient goods or services under this agreement and, if repair, correction or replacement is not reasonably commercially practicable for Kumby, to refund any monies actually paid by you for the product involved and to terminate and discontinue your use of the Site. You further understand and acknowledge the capacity of the Site, in the aggregate and for each user, is limited. Consequently some messages and transmissions may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that Kumby assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver Postings or for any failure or delay associated with any Postings and you are hereby expressly advised not to rely upon the timeliness or performance of the Site for any Postings. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this agreement may not apply to you.
16. Indemnity. You agree to indemnify, defend and hold Kumby, its affiliates, and their officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from and against any demands, loss, liability, claims, actions, damages, costs or expenses (including attorneys’ fees), made against Kumby by any third party due to or arising out of or in connection with your use of the Site. Kumby reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with Kumby in the defense of any such claim, action, settlement or compromise negotiations, as requested by Kumby.
No action arising out of this Agreement or your use of the Site, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) to the extent allowable by law. This agreement and your use of the Site is governed by, construed and enforced in accordance with the internal substantive laws of the State of California applicable to contracts made, executed and wholly performed in California, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in Los Angeles County in the State of California and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. To the extent it may be applicable, you agree with us, to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.
In the event of any controversy or dispute between Kumby and you arising out of or in connection with your use of the Site, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SITE OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.