Terms & Conditions
IMPORTANT NOTICE. THIS IS A BINDING LEGAL DOCUMENT. PLEASE READ CAREFULLY BEFORE USING THIS WEBSITE OR APPLICATION, OR SUBMITTING ANY PERSONAL INFORMATION. IF YOU CREATE AN ACCOUNT ON THE WEBSITE OR USING A DOWNLOADED APP, YOU AGREE TO THESE TERMS AS PART OF THE ACCOUNT CREATION PROCESS. IF YOU DO NOT CREATE AN ACCOUNT, YOU AGREE TO THESE TERMS BY USING THE WEBSITE OR ACCESSING OUR CONTENT.
SECTION 1 WHO’S WHO? “myKlovr” refers to Student Global, LLC, a Delaware limited liability company. When “We” or “Us” or “Our” are used in these Terms and conditions, it is a reference to myKlovr. The “myKlovr Platform” refers to this website and all applications and content provided by myKlovr. The myKlovr Platform and its content is designed to comply with U.S. laws and regulations. “You” or “Your” refers to the person using an account created on the myKlovr Platform, or otherwise using the website accessible through www.myKlovr.com or any other component of the myKlovr Platform. If you are using the myKlovr Platform as part of your job, or on behalf of your employer, “You” or “Your” refers to both you and your employer.
SECTION 2 AGREEING TO THESE TERMS
Section 2.1 If You create an account on the myKlovr Platform, You agree to these Terms and conditions (these “Terms”) by acknowledging Your agreement during the account creation process. If You do not create an account, but use publicly accessible portions of the myKlovr Platform, You agree to these Terms be either accessing the myKlovr Platform or by downloading any application or content provided through the myKlovr Platform, or by using any portion of the myKlovr Platform that is accessible without an account. When You agree to these Terms, You are also agreeing to the terms and conditions in the myKlovr Privacy Policy (available at https://www.myKlovr.com/privacy-policy) (the “Privacy Policy”). The Privacy Policy is hereby incorporated into these Terms by reference.
Section 2.2 If You are acting on behalf of an employer in connection with Your use of the myKlovr Platform or creation of an account on the myKlovr Platform, the person using the myKlovr Platform or creating the account warrants and represents that they have authority and permission to enter into this Agreement on behalf of that employer, in addition to entering into it on behalf of themselves. For avoidance of doubt, if You are acting on behalf of an employer in connection with Your use of the myKlovr Platform or creation of an account on the myKlovr Platform, You are entering into a legal agreement on behalf of yourself personally, and on behalf of your employer.
Section 2.3 By accepting these Terms and the Privacy Policy, You (and where applicable, your employer) are entering into a binding legal agreement with myKlovr. If You do not understand these Terms and the Privacy Policy, or if You do not agree to all of the terms and conditions in the Privacy Policy and these Terms, then You may not use the myKlovr Platform or create an account through it. Use of the myKlovr Platform is conditioned on Your acceptance of all of the terms and conditions in these Terms and in the Privacy Policy.
SECTION 3 SCOPE
Section 3.1 myKlovr and its affiliates provide the myKlovr Platform to provide a single source platform for students, parents, teachers and businesses (“Users”) to collaborate to help students of all ages achieve their career and academic goals. Accessing certain features of the myKlovr Platform (for example, and without limitation, such as the marketplace and the institutional reporting features) may require You to enter into separate agreements with myKlovr or its affiliates (“Separate Agreements”). Unless such Separate Agreements expressly reference this Section 3.1 and clearly state that they “are intended to replace or supersede these Terms pursuant to Section 3.1,” all Separate Agreements are in addition to, and not in lieu of, these Terms, and You will be legally bound by these Terms and the Privacy Policy in addition to being bound by any such Separate Agreements, all of which will be construed together. Agreement to, and compliance with, these Terms is a condition of all Separate Agreements. Accordingly, a breach by You of these Terms will be deemed and treated as a breach of the Separate Agreements. Failure to agree to this Agreement, or termination of this Agreement by You, prior to the expiration or termination of the Separate Agreements will be a breach of those Separate Agreements.
Section 3.2 These Terms and the Privacy Policy, as they may be amended from time to time, are collectively known as the “Usage Agreement.” The Usage Agreement applies to all uses of the myKlovr Platform and all user accounts described in any account Information provided to, or received from, the myKlovr Platform and/or through any client or mobile application provided by Us. You understand and agree that this Usage Agreement is enforceable against you personally and any entity with which you are employed or affiliated and on whose behalf the myKlovr Platform or such client or mobile application is used.
You hereby represent and warrant that You have CAREFULLY read and understood these Terms and the Privacy Policy, that You are of legal age under the laws of the United States, and that You accept this Agreement freely, voluntarily, and with full knowledge and understanding of its terms and conditions.
Section 3.3 Use of the myKlovr Platform is further conditioned on Your compliance with all terms and provisions of Our Acceptable Use Policy.
Section 3.4 Any conduct that is not in compliance with the Acceptable Use Policy, as amended by Us from time to time, will be a material breach of these Terms.
Section 3.5 This website and the myKlovr Platform are intended for use only by persons over the age of 13, and only in the United States of America. If You are not over the age of 13 or are located outside the United States of America, You may not use this website. You warrant and represent that You are legally permitted to use this website and other aspects of the myKlovr Platform.
Section 3.6 If You are between the ages of 13 and 18, You may be required to obtain the consent of Your parent or guardian to use the myKlovr Platform. Such consent may be requested when You create an account on the myKlovr Platform. Regardless of whether such consent is requested or obtained, You acknowledge that these Terms deal with education and, as such, this Agreement is deemed to be an agreement for a necessity.
Section 3.7 Some portions of the myKlovr Platform are only available for a charge. Others are available without charge. Where there is no charge for using a portion of the myKlovr Platform, We reserve the right to terminate Your access or otherwise deny You the ability or right to use such portions at any time for any reason or no reason, including, without limitation: in the event that We determine, in Our sole discretion, that You are in violation of any these Terms, are outside the United States of America, 13 years old or younger, or that Your use of the myKlovr Platform is not consistent with these Terms, the Privacy Policy or any usage guidelines or policies available on or through the myKlovr Platform, as such may be amended from time to time. Where there is a charge for using a portion of the myKlovr Platform, We reserve the right to terminate Your access or otherwise deny You the ability or right to use such portions at any time in the event that We determine that You have violated any of these Terms, or any term or condition of the Privacy Policy, or any provision of the Acceptable Use Policy. All sales are final and You understand that no refunds will be issued in the event of any termination of the Agreement, regardless of reason.
Section 3.8 These Terms may be modified from time to time. You can determine if the Terms have been modified by reviewing the version information at the bottom of these Terms. While myKlovr may send provide email notice, in-site notice, or other notice of a modification of these Terms, We are not obligated to do so. You are responsible for periodically reviewing these Terms for any changes. If a change to these Terms has a material adverse effect on You, and no separate written agreement provides otherwise, then You may terminate Your account. Enrollment fees and other fees are not refundable.
SECTION 4 ACCOUNT INFORMATION
Section 4.1 You warrant and represent that all information provided through the myKlovr Platform will be truthful, accurate, and complete, and will be submitted only for lawful purposes. If You provide any information that is untrue, inaccurate, or incomplete, or if We have any reason to believe that the information You provided is untrue, inaccurate, or incomplete, or was submitted in connection with any unlawful purpose, myKlovr may, without any liability to You: (a) suspend or terminate Your account or access to the myKlovr Platform; (b) if permitted by applicable law, use electronic self-help means to terminate Your ability to access the myKlovr Platform or other software or services provided by Us; (c) terminate this Agreement; (d) remove, delete or otherwise dispose of Your myKlovr account information previously provided, uploaded or used by, for, or on behalf of You; (e) report Your activities to law enforcement agencies; (f) notify others, including any other users of the myKlovr Platform or Our affiliates or partners of Our suspicions; and/or (g) pursue any other legal or equitable remedies that may be available.
Section 4.2 You will grant, and hereby do grant, to Us, a nonexclusive, royalty-free, worldwide, unlimited, perpetual, irrevocable, transferable and fully sub-licensable right and license to copy, distribute, publish, perform, create derivatives from, and otherwise use (i) any information, materials or suggestions You provide to Us, either through the myKlovr Platform or otherwise, and (ii) any and all account information, with the exception of Personal Information as outlined in the Privacy Policy, You submit to or through the myKlovr Platform. You warrant and represent that You are the exclusive owner of all information You provide to Us or the myKlovr Platform, or that You have, through valid agreement, the right to provide the account information to Us or the myKlovr Platform and to grant the foregoing license. Although the foregoing license does not terminate, We agree to use commercially reasonable efforts to remove or suspend access to any content You provide to Us upon receipt of Your written request, to the extent such removal or suspension will not place Us in breach of any contractual obligation We have to any other user of the myKlovr Platform. In the event We determine that any content You provide to or through the myKlovr Platform is illegal, infringing, defamatory, abusive, or inappropriate, We reserve the right to unilaterally remove or suspend access to such content at any time with, or without, notice to You. We will have no liability to You whatsoever in event We exercise Our right to remove or suspend access to such content.
Section 4.3 You will maintain the confidentiality of any password, user ID, and other account credentials provided to You, created by You, or obtained by You, in connection with the myKlovr Platform, and will not share such information with any third party, or use such information for any purpose not expressly authorized under this Agreement, without myKlovr’s prior written consent. You agree to notify myKlovr in writing immediately of any actual or suspected unauthorized use of Your account credentials, or any other breach of the myKlovr’s security that is known or suspected by You. Notice may be provided by email to support@myKlovr.com, or by overnight delivery to 1350 Avenue of the Americas, 2nd Floor, New York, New York, 10019.
Section 4.4 You consent to the use of electronic communications in transacting business with Us, including, without limitation, the electronic delivery of notices and other documents to You. If at any time You would like to cease doing business electronically with Us, You will need to provide Us with written notice of Your withdrawal of Your consent to do business electronically, which will then terminate this consent. Thereafter, You will not use the myKlovr Platform. No refund will be granted in the event You terminate consent to electronic communication.
SECTION 5 RENEWAL AND TERMINATION
Section 5.1 To the extent You create an account using, or otherwise register to use, the myKlovr Platform, such account will be active for one month, after which it will automatically renew for successive months unless cancelled by You, or by myKlovr in accordance with this Agreement. Termination of an account does not terminate this Agreement, which may only be terminated by Our written notice to You, or by Your written notice to Us. In the event this Agreement terminates, (i) Your authorization to use the myKlovr Platform will terminate and You will immediately cease all use of the myKlovr Platform (either through a web browser or other software, and either directly or indirectly), (ii) We may, in Our sole discretion, terminate any account and delete or otherwise dispose of any account information or other content provided by You, and (iii) where permitted by law, We may use self-help or other means to prevent further use of the myKlovr Platform by You or others working on Your behalf. It is understood and agreed, however, that the foregoing will not constitute an obligation for myKlovr or any other party to delete or cease use of any account information or other content previously provided to Us, except as otherwise detailed in the Privacy Policy provided.
Section 5.2 If Your account is terminated or suspended for any reason, some of the content You provided to the myKlovr Platform may remain available. For example, and without limitation, if You posted information to a publicly available page on the myKlovr Platform, such postings may remain available.
Section 5.3 If this Agreement is terminated for any reason, or if You close Your account or Your account is terminated for any reason, any points or rewards You accrued through the myKlovr Rewards System will be forfeited in their entirety.
SECTION 6 FEEDBACK AND YOUR POSTINGS
Section 6.1 From time to time, myKlovr or a third party engaged by myKlovr may request feedback and other information from You about the myKlovr Platform or Your experiences with the myKlovr Platform (“Feedback”). You may also choose to participate in forums or to otherwise post content through the myKlovr Platform as You use it (“Postings”). Providing Feedback and Postings is optional. By providing Feedback or Postings, however, You will grant, and hereby do grant, myKlovr a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable and fully sub-licensable right and license to use the Feedback and Postings for any lawful purpose, including, without limitation, the right to reproduce, adapt, publish, translate, distribute, and display all or parts of the Feedback and Postings in any medium whatsoever along with Your (or Your employer’s) name, in myKlovr’s sole discretion. myKlovr may also use the Feedback in anonymous and aggregate reviews.
Section 6.2 You agree not to upload, post or otherwise transmit any content that: (a) is inaccurate, harmful, obscene, pornographic, defamatory, racist, violent, offensive, harassing, or otherwise offensive to myKlovr or other users of the website; (b) includes unauthorized disclosure of Personal Information; (c) violates or infringes anyone’s intellectual property rights; or (d) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. myKlovr reserves the right to edit or remove content that violates these Terms or for any other reason it considers necessary.
Section 6.3 You agree to use the myKlovr Platform in a manner that is lawful, relevant and proper to the applicable forum. Any use of the myKlovr Platform that myKlovr, in its sole discretion, finds inappropriate and/or offensive may result in suspension and/or termination of Your account with or without notice. Conduct that is inappropriate and/or offensive includes, but is not limited to, the following: (a) impersonating another person or allowing any other person or entity to use Your user name, password or membership; (b) reproducing, duplicating, copying, selling, re-selling or exploiting any information, materials or content on the myKlovr Platform; (c) publishing material that includes information that You do not have the right to disclose or make available under any law or under contractual or fiduciary relationships; (d) publishing content that infringes upon patents, trademarks, trade secrets, copyrights or other intellectual property rights; (e) advertising or offering to sell any goods or services for any commercial purpose on the myKlovr Platform that are not appropriate or relevant to the myKlovr Platform; (f) publishing files that contain software viruses, worms, malware, or any other harmful code, files or programs that interrupt, destroy or limit the functionality of the myKlovr Platform or any computer or other equipment; and/or (g) defaming, abusing, harassing, harming, stalking, threatening, or otherwise violating the legal rights (including without limitation rights of privacy and publicity) of others.
SECTION 7 OFFENSIVE CONTENT. myKlovr reserves the unilateral, unfettered right (but not the legal obligation) to delete or suspend access to any content or information that myKlovr determines, in its sole discretion, is or may be illegal, infringing, defamatory, inappropriate, or offensive. To the extent any such content is posted by You or through Your account, You may be subject to legal action by myKlovr or third parties. myKlovr reserves the right to suspend or terminate Your access to the myKlovr Platform in the event of such postings. Your sole recourse and remedy in the event of such removal is Your right to terminate this Agreement, without the right of receiving any refund. Without limiting the foregoing, myKlovr shall have no liability to You for any lost business, revenue or opportunity resulting from the removal of offensive content. Terminating this Agreement while You are still subject to Separate Agreements may be a breach of Your obligations under those Separate Agreements.
SECTION 8 REVERSE ENGINEERING AND NON-INTERFERENCE. In addition to any myKlovr information or documents containing information that constitute a “trade secret” as that term is defined in the Uniform Trade Secrets Act as of September 16, 2015, the following will be deemed trade secrets of myKlovr and You will treat the following as Our trade secrets to the extent they have not intentionally been made public by Us: (i) all source code, algorithms, data and configuration files within or comprising the myKlovr Platform or used to receive content from, or deliver content to the myKlovr Platform, and all documentation relating thereto, (ii) all financial information relating to myKlovr or its affiliates, (iii) all product or service development plans of myKlovr or its affiliates, and (iv) all security vulnerabilities and information relating to actual or alleged security vulnerabilities or breaches of the myKlovr Platform. By agreeing to these Terms, You acknowledge and agree that such information has independent economic value due to it not being generally known or available to others, and that myKlovr takes reasonable measures to protect the confidentiality and secrecy of such information. You agree not to, and warrant and represent that You will not engage in any activity, assist any third party in engaging in any activity, or attempt in any way, or assist any third party in attempting in any way, to (v) discover or use any trade secrets of myKlovr without myKlovr’s prior written consent, (vi) reverse engineer or otherwise discover any source code utilized by the myKlovr Platform or any client or other software provided by Us, (vii) breach, discover, circumvent, disable or otherwise compromise any security, encryption, password protection, or other feature or mechanism used by Us or the myKlovr Platform to protect the myKlovr Platform or any website or any data, hardware, software or server used in connection with it, (viii) use the myKlovr Platform to provide unsolicited electronic communications (a.k.a. Spam) or distribute any infringing or illegal content, (ix) use the myKlovr Platform or any client or software provided by Us for any illegal, immoral, or improper purpose, (x) prevent or inhibit access to (or use of) the myKlovr Platform by any person, or (xi) publish, reproduce, or use for any purpose other than as expressly contemplated under this Agreement, any content on or available through the myKlovr Platform. You further warrant and represent that You will not use the myKlovr Platform or any client or software provided by Us to implement, develop, refine, enhance, use, or promote any website, software or service that competes with the myKlovr Platform.
SECTION 9 LINKING, CRAWLING AND FRAMING. The myKlovr Platform, and any content or resource viewed through the myKlovr Platform, is available for Your personal and non-commercial use (and any commercial uses expressly permitted under Separate Agreements, if any) only. This includes the recommendations, suggested resources and products as well as the content items. You may link only to the home page of this website, and not to any other page or portion of the myKlovr Platform. You agree not to, and warrant and represent that You will not assist any third party in engaging in any activity or attempting in any way, to reproduce, in whole or in part, any content provided by the myKlovr Platform through any method (including, without limitation, through copying, caching, or framing), unless such access is expressly permitted in a written agreement executed by myKlovr. You may not, for instance, incorporate the information, content, or other material in any database, compilation, archive, API or cache. Except as specifically authorized by myKlovr, You may not deep-link to the myKlovr Platform for any purpose or access the myKlovr Platform manually or with any robot, spider, web crawler, extraction software, automated process or device to scrape, copy, or monitor any portion of the myKlovr Platform or any information, content, or material on the myKlovr Platform. You agree not to use the myKlovr Platform for commercial purposes, public performances, conferences or large group viewings, and agree not to share or transfer Your account login information with any third party. For information on a license to enable commercial use, public performance or large group viewings, please contact Us by email at support@myKlovr.com.
SECTION 10 LINKS TO AND FROM OTHER WEBSITES. Links to third party websites on the myKlovr Platform are provided solely for convenience. You agree that myKlovr is not liable for any content, products, advertisements or any materials found or available on such third party websites. myKlovr will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with use of or support on any such content, goods or services available on or through any such third party website or resource. If You use these links, You leave the myKlovr Platform. myKlovr has not reviewed all of these third party websites and does not control and is not responsible for these websites or their content or availability. myKlovr therefore does not endorse or make any representations about them, or any material found there, or any results that may be obtained from using them. If You decide to access any of the third party websites linked to the myKlovr Platform, You do so entirely at Your own risk.
SECTION 11 INTELLECTUAL PROPERTY
Section 11.1 Except as expressly authorized by myKlovr in writing, You agree not to reproduce, modify, rent, lease, loan, sell, distribute, mirror, frame, republish, download, transmit, or create derivative works of any part of the myKlovr Platform or any content of others accessed on or through the myKlovr Platform, in whole or in part, by any means.
Section 11.2 myKlovr Trademarks means all names, marks, brands, logos, designs, slogans, and other designations myKlovr uses in connection with its products and services. You will not use any myKlovr Trademarks or any confusingly similar marks, except as expressly permitted by Our prior written permission. You may not co-brand Your own products or material with myKlovr Trademarks, without Our prior written permission. You agree not to incorporate any of Our Trademarks into Your trademarks, company names, domain names, or any other similar designations.
Section 11.3 myKlovr respects the intellectual property of others, and We ask Our users to do the same. You will not use any of Our (or Our licensors’) works of authorship except with Our prior written permission. In addition, in Your use of and interactions with the myKlovr Platform, You may not post, modify, distribute, or reproduce in any way any content that is copyrighted material belonging to others, without obtaining their prior written consent. myKlovr reserves the right, in its sole discretion, to remove any content or Postings if We believe it may infringe the copyright rights of others, and/or to terminate the accounts of users who We believe to be infringers.
SECTION 12 PAYMENTS, REFUNDS AND FINANCIAL TERMS.
Section 12.1 Access to certain of the features of the myKlovr Platform may require payment. You may also have the ability to purchase goods and services through the myKlovr Platform. All payments for access to for-pay features of the myKlovr Platform, and all payments for purchase of goods and services made through the myKlovr Platform are made through a third-party vendor and are due and payable immediately upon purchase. In the event myKlovr is denied access to the funds from any payment for any reason, myKlovr may immediately and without notice terminate or suspend access to Your account. Attempting to make a payment by fraudulent means, or attempting to prevent myKlovr from receiving the funds from a payment made by or for You will be a material breach of these Terms.
Section 12.2 Except as otherwise expressly stated herein, all amounts paid to myKlovr are non-refundable. To the extent myKlovr determines, in its sole discretion, to refund any amount paid to myKlovr in connection with the myKlovr Platform, such refund will be paid within sixty (60) days of myKlovr’s decision to pay such refund.
Section 12.3 myKlovr has the right to modify its pricing policies at any time without prior notice.
SECTION 13 INTELLECTUAL PROPERTY CLAIMS. We do not control the content of information posted on the myKlovr Platform by third parties. If you are a copyright owner or agent thereof and believe that content posted on this website or the myKlovr Platform infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright act (17 U.S.C. § 512(c)) to Us with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright; (b) a description of the copyrighted work that you claim has been infringed; (c) the url of the location on Our website or the myKlovr Platform containing the material that you claim is infringing; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. For such submissions, We can be reached by mail at 1350 avenue of the Americas, 2nd floor, New York, New York, 10019, or by email at support@myKlovr.com. Please use this same contact information to report to Us any other complaint you may have regarding content posted on the myKlovr Platform, including without limitation, any complaint that such content infringes a trademark right or other intellectual property right, or defames any person or is otherwise illegal or improper, by providing (g) a signed certification that the complaint is being made in good faith by one authorized to do so, (h) an email address or physical address where you may be contacted, (i) the url of the location where the objectionable content can be found; and (j) a reasonable description of the rights you believe are violated by the objectionable content.
SECTION 14 WARRANTY DISCLAIMER. AS BETWEEN YOU AND US, THE MYKLOVR PLATFORM, AND ALL INFORMATION WE OR THIRD PARTIES PROVIDE ON THE MYKLOVR PLATFORM, AND ALL MOBILE APPLICATIONS OR OTHER SOFTWARE OR CONTENT PROVIDED BY US IS PROVIDED TO YOU “AS IS” AND YOU USE ALL OF THE FOREGOING ENTIRELY AT YOUR OWN RISK. THE MYKLOVR PLATFORM IS PROVIDED ON AN “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER REGARDING ITS AVAILABILITY OR THE CORRECTNESS OF ANY CONTENT THEREON, OR THAT IT WILL PROVIDE ANY FEATURE OR CAPABILITY, OR BE SUITABLE FOR ANY PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY THAT MAY ARISE BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OF THIS AGREEMENT. NEITHER MYKLOVR, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS CONTAINED IN THE MYKLOVR PLATFORM IN TERMS OF THEIR EFFECTIVENESS, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM MYKLOVR OR THROUGH THE MYKLOVR PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT NO SOFTWARE OR WEBSITE CAN BE ENTIRELY SECURE OR FREE OF RISK OF SECURITY BREACHES OR ATTACKS BY THIRD PARTIES, AND THAT WE MAKE NO WARRANTY OR REPRESENTATION THAT THE MYKLOVR PLATFORM WILL BE SECURE OR FREE FROM SUCH BREACHES OR ATTACKS.
SECTION 15 LIMITATION OF LIABILITY; INDEMNIFICATION; RELEASE
Section 15.1 IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, IF MYKLOVR OR ANY AFFILIATE SHOULD BE HELD LIABLE FOR ANY DAMAGES (INCLUDING DIRECT DAMAGES), IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO MYKLOVR DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE. NO CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST MYKLOVR OR ITS AFFILIATES.
Section 15.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. NO OTHER LIMITATION CONTAINED IN THIS AGREEMENT SHALL LIMIT MYKLOVR’S LIABILITY TO YOU, TO THE EXTENT SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW.
Section 15.3 THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL SURVIVE EVEN IF ANY EXCLUSIVE OR LIMITED REMEDIES PROVIDED IN THIS AGREEMENT SHOULD FAIL OF THEIR ESSENTIAL PURPOSE.
Section 15.4 You shall indemnify, defend (including by paying reasonable attorneys’ fees and costs) and hold harmless myKlovr and its affiliates, and each of their officers, directors, shareholders, members, managers, agents, representatives, licensees and employees (each, an “Indemnified Party”), from and against any and all claims, losses, liabilities, damages, actions, lawsuits and other proceedings, judgments and awards, and costs and expenses (including, without limitation, court costs and reasonable attorneys’ and consultancy fees), arising directly or indirectly, in whole or in part, out of: (a) any breach or threatened breach of this Agreement by You or any person under Your control, or by any person who received, discovered or used Your password or other access credentials; (b) Your use of the myKlovr Platform; or (c) Your negligence, gross negligence or willful misconduct. An Indemnified Party may participate in the defense by counsel of its own choosing, at its own cost and expense. You shall not settle any claim that adversely affects an Indemnified Party or imposes any obligation or liability on an Indemnified Party without the Indemnified Party’s prior written consent.
Section 15.5 TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE EACH INDEMNIFIED PARTY FROM ALL DAMAGES (WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE), LOSSES, LIABILITIES, COSTS AND EXPENSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH DISPUTES BETWEEN YOU AND THIRD PARTIES CONCERNING THE WEBSITE, MYKLOVR PLATFORM OR THIS AGREEMENT. IN CONNECTION WITH THE FOREGOING RELEASE, YOU HEREBY WAIVE (TO THE MAXIMUM EXTENT PERMITTED BY LAW) CALIFORNIA CIVIL CODE 1542 (AND ANY OTHER APPLICABLE LAW OR STATUTE) WHICH SUBSTANTIALLY 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 SETTLEMENT WITH THE DEBTOR.”
SECTION 16 SURVIVAL. ALL TERMS AND CONDITIONS THAT, BY THEIR NATURE, SHOULD SURVIVE TERMINATION OF THIS AGREEMENT (REGARDLESS OF THE REASON FOR TERMINATION) INCLUDING, WITHOUT LIMITATION, ALL LICENSES GRANTED BY YOU, ALL WARRANTIES AND REPRESENTATIONS BY YOU, ALL LIMITATIONS OF LIABILITY, INDEMNIFICATIONS, RELEASES, AND DISCLAIMERS, AND ALL TERMS RELATING TO NOTICE, CHOICE OF LAW, CHOICE OF VENUE OR DISPUTE RESOLUTION. MYKLOVR’S REMEDIES UNDER THIS AGREEMENT ARE CUMULATIVE AND NOT EXCLUSIVE AND ARE IN ADDITION TO ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY.
SECTION 17 NOTICES
Section 17.1 Any notice to myKlovr that is required or permitted by this Agreement shall be in writing and shall be deemed given: (a) if sent by mail to the applicable myKlovr office identified in the “Contact Us” section of this website, five (5) business days after deposit in the mail, postage prepaid; (b) if sent by fax to the fax number identified in the “Contact Us” section of this website, upon Your receipt of electronic confirmation thereof; (c) if sent by email to support@myKlovr.com, upon Our receipt of the email; or (d) if sent by next day delivery service to the address identified in the “Contact Us” section of this website, upon such delivery.
Section 17.2 Any notice to You that is required by this Agreement shall be in writing and shall be deemed given: (a) if sent by email to the email address that We have in Our records for You, upon the earlier of Your receipt of the email, or two (2) business days after We sent the email (provided that We did not receive a message indicating that the delivery of the email was unsuccessful); (b) if sent by mail to mailing address that We have in Our records for You, five (5) business days after deposit in the mail, postage prepaid; (c) if sent by fax to the fax number We have in Our records for You, upon Our receipt of electronic confirmation thereof; or (d) if sent by next day delivery service to the address We have in Our records for You, upon such delivery.
SECTION 18 GOVERNING LAW
Section 18.1 This Agreement shall be governed by, construed, and enforced in accordance with the laws of the United States and the State of Delaware, without giving effect to any conflict of law provisions, and the application to this Agreement of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act is expressly excluded.
Section 18.2 Subject to Section 19 (Disputes), the exclusive jurisdiction and venue for all legal actions arising out of this Agreement shall be in an appropriate court sitting in New York, New York, or the United States District Court for the Southern District of New York, and You hereby consent to the exclusive jurisdiction of such courts in any and all matters that may arise in connection with this Agreement, the myKlovr Platform, and/or any account information or content provided by You for or via the myKlovr Platform; and You expressly waive any rights to contest the jurisdiction, venue or convenience of any such federal or state court. Notwithstanding the foregoing, myKlovr may seek injunctive or other equitable relief in any court of competent jurisdiction.
Section 18.3 You agree and acknowledge that any breach or threatened breach by You of this Agreement may cause myKlovr irreparable injury for which the recovery of money damages would be inadequate. Therefore, in addition to any other remedies that may be available at law, in equity, or otherwise, myKlovr shall be entitled to obtain injunctive relief against the breach or threatened breach of this Agreement, without the necessity of proving actual damages, or posting a bond, even if otherwise normally required.
SECTION 19 DISPUTES. With the exception of injunctive relief (which either party may seek as they deem necessary to avoid irreparable damage or preserve the status quo), any dispute between the parties arising out of or related to this Agreement shall be resolved as follows:
Section 19.1 Good Faith Efforts to Resolve Disputes. Upon the written request of either party, each party will appoint a designated representative whose task it will be to meet for the purpose of resolving such dispute. Each designated representative shall have the authority to reach a binding resolution of the dispute through amiable discussions, the exchange of documents, and/or meetings. The designated representatives shall negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding relating thereto.
Section 19.2 Arbitration. All disputes that have not been resolved by the designated representatives within thirty (30) days after said initial written request by one of the parties to appoint a designated representative, shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Arbitration shall be by a panel of one (1) qualified arbitrators experienced in the matters at issue.
Section 19.3 Selecting the Arbitrator. You and myKlovr shall negotiate in good faith to select a qualified arbitrator for no less than thirty (30) days after the initiation of the arbitration proceedings as set forth in Section 19.4 below. If the parties cannot agree on an arbitrator within such thirty (30) day period, the American Arbitration Association shall, upon the request of any party to the dispute or difference, appoint the arbitrator to constitute the panel. The Arbitrator must be a retired judge or a working or retired attorney with experience in drafting or litigating online services agreements.
Section 19.4 Initiating Arbitration Proceedings. Either You or myKlovr may initiate arbitration proceedings under this Section 19 by making a written request to the American Arbitration Association, together with any appropriate filing fee.
Section 19.5 Location of Arbitration Proceedings. All arbitration proceedings shall be held in New York, New York, U.S.A., in a location to be specified by the arbitrators or any other place agreed to collectively by the parties and the arbitrators.
Section 19.6 Binding Orders. Any order or determination of the arbitral tribunal shall be final and binding upon the parties to the arbitration as to matters submitted and may be enforced by either party in any court having jurisdiction over the subject matter or over any of the parties.
Section 19.7 Costs and Expenses of Arbitration. All parties will pay their own costs and expenses incurred in connection with any such arbitration proceeding, including, but not limited to, reasonable attorneys’, accountants’ and consultants’ fees, experts’ fees, and filing fees regardless of outcome. All fees and expenses charged by the arbitrator or the AAA shall be borne equally by the parties.
Section 19.8 Court Proceedings. The Parties understand and agree that the exclusive means of resolving any dispute arising in connection with this Agreement shall be arbitration as set forth in this Section 19. Neither party may bring a court action or other proceeding (either as an individual or as part of a class) to enforce or interpret this Agreement, the parties having agreed that all such disputes shall be resolved exclusively through arbitration. Notwithstanding the foregoing, or anything else in this Agreement, myKlovr may bring an action in any court of suitable jurisdiction for injunctive or similar equitable relief in the event myKlovr determines that You or Your actions are putting, or have put, myKlovr’s Confidential Information or Intellectual Property at risk.
SECTION 20 GENERAL
Section 20.1 Our failure or delay in the performance of any obligation under this Agreement shall be excused to the extent and for the duration that such failure or delay is occasioned by a force majeure event which shall include, without limitation, acts of God, acts of war, earthquakes, fires, floods, terrorism, riots, civil disorders, rebellions, labor disputes, or any circumstances beyond Our reasonable control. You are responsible for providing and maintaining Your own internet connection and We will have no liability whatsoever resulting from Your inability to access the internet or any connection issue that prevents connections with myKlovr servers or data centers.
Section 20.2 In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, which shall remain in full force and effect.
Section 20.3 This Agreement, the Privacy Policy, and any duly agreed to Separate Agreement, set forth the entire understanding between You and Us relating to Your use of the myKlovr Platform, and supersede all prior or contemporaneous negotiations, understandings, agreements, proposals and representations, written or oral, between You and Us related to Your use of the myKlovr Platform. We reserve the right to change this these Terms at any time by posting notice of the changes on the myKlovr website or through the myKlovr Platform. You will be deemed to have been made aware of, and will be subject to, the changes to this Agreement after any use of the myKlovr Platform after such notice has been posted. Your continued use of the myKlovr Platform, or any materials or services accessible through the myKlovr Platform shall constitute Your acceptance of the changes. Unless otherwise expressly stated in these Terms, if You do not agree to the changes, Your sole remedy shall be to discontinue use of the myKlovr Platform. No delay or failure by Us in exercising or enforcing any rights or remedies under this Agreement, in whole or in part, and no course of dealing or performance, shall constitute a waiver by myKlovr of any provision of this Agreement.
Section 20.4 This Agreement is personal to You. You shall not assign Your rights or delegate Your obligations under this Agreement, in whole or in part, without the prior written consent of myKlovr. Any attempted assignment or delegation by You shall be voidable ab initio by myKlovr. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
Section 20.5 This agreement shall not be construed as creating any agency, partnership or joint venture between Us and You.
Section 20.6 Convicted sex offenders are not permitted to use the myKlovr Platform. If You have encountered an account that may belong to a convicted sex offender, please report it to Us via email to support@myKlovr.com and provide Us with documentary evidence that the account user is a convicted sex offender or contact Your local law enforcement agency and ask them to contact Us. Once We verify someone’s status as a convicted sex offender, We will immediately disable their account.
Section 20.7 The headings contained in this Agreement are intended solely for convenience of reference and are not intended to be part of or affect the meaning or interpretation of this Agreement. The words “shall,” “agree,” and “will” are mandatory, the word “may” is permissive, the word “or” is not exclusive, and the singular includes the plural and vice versa.
Last updated: February 16th , 2017
