WEB SITE TERMS AND CONDITIONS OF USE

Before using KioMedia, Inc. (“KioMedia”), please read these end user terms of service (“Terms”). “Customer” means the party identified as customer on an applicable order form. These terms are incorporated by reference into each order form executed by the Customer and KioMedia, pursuant to which the customer receives the right to access and use the online service. These Terms and the order form together form a binding and executed written agreement between Customer and KioMedia (“agreement”). The agreement is effective as of the effective date stated in the order form, or if no date is stated, then on the date the order form has been signed by both parties.

By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trademark law.

This Terms of Use Agreement (the “Agreement”), effective as of March 6, 2015 states the terms and conditions that govern the contractual agreement between KioMedia, Inc., (the “Company”) and you (the “User”) who agrees to be bound by this Agreement in regard to the User’s access to www.kiomedia.com (the “Site”), which is owned and operated by the Company.

ACCEPTANCE OF TERMS OF USE AGREEMENT. This agreement is an electronic contract that sets out the legally binding Terms of your use of the Site and the Service. This agreement may be modified by KioMedia from time to time, such modifications to be effective upon posting by KioMedia on the Site. This agreement does not include the KioMedia Privacy Policy. KioMedia will only use the information you provide on the Site in accordance with our Privacy Policy. For more information, see our full Privacy Policy. By accessing theSite or becoming a Customer, you accept this agreement and agree to the Terms, conditions and notices contained or referenced herein. In addition, by accessing the Site or becoming a Customer, you consent to have this agreement provided to you in electronic form.

SECTION 1: THE KIOMEDIA SERVICE.

  1. Through the Site, the Company offers a service through which content is generated on the subject matter as defined by the User (the “Service”). By logging onto the Site and/or using the Service, the User agrees to these Terms of Use and associated Privacy Policy located elsewhere on the Site.
  2. This Agreement shall govern the Service generally. However, the Company and the User may enter into an agreement via a work order or work orders (“Work Order”), any of which that are executed by the Parties shall be incorporated by reference herein.

SECTION 2: SUBSCRIPTIONS; TERMINATION; AFFILIATES.

  1. Subscription terms shall be indicated on the applicable Work order. However, in the event that no period is listed on such Work Order, the terms of such Work Order shall last for one (1) year with successive one (1) year periods unless intent to cancel is indicated in writing by either party prior to the expiration of the initial period or any successive renewal period (the “Subscriptions”).
  2. If the Company believes that the User has violated this Agreement or other policies or guidelines of the Service or otherwise, the Company may terminate this Agreement with written notice to the User.
  3. Upon termination, the User will pay all fees owed to the Company that have accrued up until the effective date of termination of this Agreement in accordance with the Agreement.
  4. Upon any termination of this Agreement, the Client will immediately cease all use of and access to the Service and delete (or, at the Company’s request, return) all related documentation, passwords and access codes and any other Confidential Information in its possession. The Company will have no liability for any suspension or termination of the User’s access to the Service, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. Upon written request by the User made within thirty (30) days after termination, the Company will provide the User with temporary access to the Service solely for User to retrieve its User Content, but not any other purpose. After such thirty (30) day period, the Company will have no obligation to maintain or provide access to such User Content and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such User Content in its possession or control.
  5. The User’s affiliates may purchase Subscriptions under additional Work Orders,provided that if any Affiliates are granted any right to access or use the Service hereunder, the User will remain fully responsible and liable for all acts and omissions of such Affiliates and will cause such Affiliates to comply with the provisions of this Agreement. For the purpose of this Agreement, “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of such party.

SECTION 3: CONDITIONAL LICENSE.

The Company hereby grants the User a conditional, revocable, and limited license to access the Site and use the Services on the following conditions. The User:

  1. May not breach any term of this Agreement;
  2. Must provide information that is truthful to the best of the User’s knowledge and in the event any such information changes, the User shall notify the Company of any such change within a reasonable amount of time. Additionally, the User may not through the Site use false identities, impersonate any other person, or use a username and password that the User is not authorized to use;
  3. May not make any resale or commercial use of the Site or its contents, any collection and use of any product listings, descriptions, or prices, any derivative use of this site or its contents, any downloading or copying of account information for the benefit of another merchant, or any use of data mining,robots, or similar data gathering and extraction tools;
  4. May not use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of the Site. The User will not take any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure. The User agrees not to use any robot, spider, other automatic device, or manual process to monitor or copy any content from the Site without the prior express consent from an authorized Company representative, unless such use is by a search engine employed to direct Internet users to the Site; and
  5. May not reproduce, duplicate, copy, sell, resell, visit, or otherwise exploit the Site or the Service for any commercial purpose without express written consent of the Company. The User may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Company or its associates without express written consent. The User may not use any meta tags or any other "hidden” text utilizing the Company’s name or trademarks without the express written consent of the Company.

SECTION 4: CONTENT; RESTRICTIONS ON CONTENT.

  1. As between the Company and the User, the User will retain all right, title and interest in and to all content, information, and other materials in any format or media uploaded by the User through the Service, as well as all information generated by use of the Service (collectively, “User Content”). The User is solely responsible and liable for ensuring the User has all necessary rights, permissions, and licenses in the User Content for the purposes contemplated herein. The User hereby grants to the Company during the term of the Agreement a non-exclusive, transferable, global right to use the User Content solely to facilitate the use of the Service. The Company, however, will not be responsible or liable for User Content in any respect.
  2. With respect to User Content, the User shall not (i) advocate for the commission of any illegal activity; (ii) advocate or profess violence or intolerance toward any specific individual, organization, or belief; (iii) mislead or intend to mislead consumers of the User Content; (iv) publish obscenity (at the sole discretion of the Company); (v) cause a liability for Company or its partner publications and websites (collectively, the “Partners”), or may cause Company or any of its Partners to lose (in whole or in part) the services of any ISPs or suppliers; or (vi)infringe upon the intellectual property or any other right of any third party.
  3. Nor shall the User, through the User Content, (i) impersonate any person or entity; (ii) harass any third party; or (iii) state or imply that any User Content is endorsed by the Company.

SECTION 5: CONFIDENTIALITY.

  1. "Confidential Information" shall include (but is not limited to) written machinereproducible and visual materials; all verbal disclosures made by or on behalf of the Parties under this Agreement; documentation and nonpublic financial information; information relating to such Party’s methods of operations; names, addresses, telephone numbers and other identifying information relating to clients or prospective clients; compilations and lists of clients and/or prospective clients; personnel data relating to such Party’s employees and contractors; information contained in placement lists, job orders, applications, files; nonpublic plans for new products and services, improvements and marketing strategies; and business contacts, pricing, business plans, techniques, methods and processes
  2. The Parties may share Confidential Information in order to facilitate the Service. With respect to such Confidential Information: Each party agrees to receive and maintain the Confidential Information of the other party as a confidential disclosure of such other party and shall not disclose such Confidential Information or any part thereof to any other person or entity (except its employees with a need to know), or use or permit any use of such Confidential Information or any part thereof or attempt to sell, assign, convey, lease, sublicense, commercially exploit, and/or otherwise market or use, in any way or manner, except as herein expressly permitted.
  3. The foregoing nondisclosure obligations shall not apply to Confidential Information (a) which is or becomes publicly available other than through the breach of this Agreement, (b) which was known to the recipient prior to the disclosure by the other party, (c) which a party rightfully receives from a third party not bound by any confidentiality agreement with respect thereto, (d) which is independently developed by the recipient, or (e) which is required to be disclosed pursuant to legal or governmental requirements; provided, that disclosure under this clause (e) shall be limited to persons legally entitled to receive the information.

SECTION 6: FEES.

The User will pay to the Company all of the fees specified in the applicable Work Order, in United States currency, unless otherwise specified in the Work Order.Except as expressly set forth to the contrary in the Agreement, all payment obligations are non-cancellable and all amounts paid to the Company are nonrefundable except that which is expressly stated herein. Fees will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, all fees are due within fourteen (14) days from the invoice date.Unpaid invoices are subject to a late payment charge of 2.0% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). The User will be solely responsible for payment of all Taxes, except for those taxes based on the income of the Company. The User will not withhold any Taxes from any amounts due the Company. If the Company pays any such taxes on behalf of User, User will reimburse the Company for such payment.

SECTION 7: REFUNDS.

In the event that the User effectively ceases a campaign prior to its completion, the User shall receive a refund of any unused credits that have yet to be used pursuant to such campaign. Under no other circumstances shall the Company issue any refund.

SECTION 8: PROPRIETARY RIGHTS.

The User understands and acknowledges that all intellectual property rights in the Service, including but not limited to the material pertaining to the Service provided to the User to facilitate the use of the Service, belong to the Company. The User agrees not to: (a) copy, reproduce, distribute, or create derivative works based on the Service or any associated material; (b) reverse engineer or decompile any technology pertaining to the Service; or (c) resell or make any commercial use of the Service.

SECTION 9: INTELLECTUAL PROPERTY.

The Site holds certain content, such as text,graphics, logos, button icons, images, audio clips, data compilations, and software,that is the property of the Company or its content suppliers and protected by international copyright laws. The Site may contain or reference trademarks, patents,copyrighted materials, trade secrets, technologies, products, processes or other proprietary rights belonging to Company and/or other parties. No license to or right in any such trademarks, patents, copyrighted materials, trade secrets, technologies,products, processes and other proprietary rights of Company and/or other parties is granted to or conferred upon the User.

To notify the Company of any copyright-infringing content, please contact us at info@kiomedia.com with the following information in accordance with the Digital Millennium Copyright Act:

  1. Identification of the allegedly copyright-infringing material
  2. Identifying of the allegedly infringed-upon work and the copyright-holder of said work
  3. Information reasonably sufficient for Company to contact you
  4. A statement that you have a good faith belief that use of the material in the manner complaint of is not authorized by the copyright owner, its agent, or the law
  5. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

SECTION 10: INDEMNIFICATION.

The User agrees to indemnify, hold harmless and defend the Company, along with its directors, employees and agents from and against any action,cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (i) this Agreement and/or any breach or threatened breach by the User; (ii) the User’s use ofthe Site or any service offered by the Company; (iii) any unacceptable, unlawful, or objectionable use of the Site or any service offered to the User by the Company; or(iv) any negligent or willful misconduct by the User; or (v) violation of any third party’s rights (including intellectual property rights) through the User’s use of the Site or the Service.

SECTION 10: INDEMNIFICATION.

The User agrees to indemnify, hold harmless and defend the Company, along with its directors, employees and agents from and against any action,cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (i) this Agreement and/or any breach or threatened breach by the User; (ii) the User’s use of the Site or any service offered by the Company; (iii) any unacceptable, unlawful, or objectionable use of the Site or any service offered to the User by the Company; or (iv) any negligent or willful misconduct by the User; or (v) violation of any third party’s rights (including intellectual property rights) through the User’s use of the Site or the Service.

SECTION 11: LIMITED LIABILITY.

UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO THE USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SITE, ANY SERVICE OFFERED BY THE COMPANY, USER CONTENT, OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) ANY PARTY’S USE OR INABILITY TO USE THE SITE; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY DATA OR ANY TRANSMISSION OF DATA; (D) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED (OR NOT TRANSMITTED OR RECEIVED) BY/FROM ANY PARTY; AND/OR (E) ANY CONTENT OR DATA FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, OR THE SERVICE; WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER.

SECTION 12: DISCLAIMER OF WARRANTIES.

THIS SITE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THIS SITE AND ANY SERVICE OFFERED BY THE COMPANY IS AT THE USER’S SOLE RISK. THE COMPANY MAKES NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT; (B) THAT THE SITE, OR THE SERVICE WILL MEET THE USER’S REQUIREMENTS; (C) THAT THE SITE WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION, DATA OR CONTENT OBTAINED FROM THE SITE, OR THE SERVICE WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY OR FREE FROM VIRUSES OR OTHER FORMS OF DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY THE USER FROM THE COMPANY, WHETHER IN ORAL, WRITTEN OR ELECTRONIC FORM, RELATING TO THE USER’S USE OF THIS SITE, THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

SECTION 14: NOTICE TO USERS IN CALIFORNIA.

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

SECTION 15: MODIFICATION.

The Company has the right at any time or from time to time to modify or amend this Agreement. Should the Company choose to modify this Agreement the Site will display such changes, which will be User’s only notification of any such change. Any use of the Site or the Service by User after such notification shall constitute User’s acceptance of the modified or amended terms. No modification to this Agreement made by User shall be binding upon the Company.

SECTION 16: FORCE MAJEURE.

In the event that the Company is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the Company or other causes beyond the Company’s reasonable control (a “Force Majeure Event”) the Company shall immediately give notice to the User and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the User may by giving written notice immediately terminate this Agreement.

SECTION 17: VENUE.

This Agreement and the interpretation of the terms herein shall be governed by and construed in accordance with the laws of the State of California, without regard to the principles of conflict of laws. The User irrevocably submits to the exclusive jurisdiction of the federal and state courts located in San Diego County, California. Except for a misuse or infringement of the Company’s intellectual property, any and all disputes, controversies and claims arising out of or relating to this Agreement, or concerning the respective rights or obligations of the Parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator pursuant to the Commercial Rules then in effect of the American Arbitration Association. Judgment upon the award rendered may be entered in any