CommonKindness, Inc. (LICENSEE") is pleased to provide you ("LICENSOR") with access to certain services offered by Licensee. Your use of these services (the "Services") is subject to the binding legal agreement set forth below (the "Terms"). You understand we may update these Terms from time to time without giving you any notice. Unless we let you know by giving you notice, any new features or updated Services that we offer to you will be subject to these Terms. Any such amendment shall be effective from such time that LICENSEE posts the amended Terms on its web. Your continued use of our Site after such time shall be deemed to constitute your acceptance of the amended Terms. Please review the most current version of these Terms each time you visit our Site.
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
BY USING THE SERVICES, YOU AGREE TO EACH OF THE TERMS SET FORTH BELOW.
1. License Grant.
LICENSOR hereby grants to LICENSEE and LICENSEE hereby accepts a nonexclusive license to use the Marks for the Licensed Goods and Services in the Territory. For avoidance of doubt, both LICENSOR and LICENSEE agree and acknowledge that LICENSEE has the right to sublicense rights under this Agreement directly or indirectly to affiliates and independent distributors, provided that such sub licensee(s) agree to be bound by all terms and conditions of this Agreement. LICENSEE shall provide notice to LICENSOR and a copy to LICENSOR of all sublicenses and distribution agreements entered into that grant any trademark rights to third parties pursuant to trademark rights granted herein to LICENSEE. All use of the Marks by LICENSEE, its sub licensees and/or its independent distributors, shall inure to the benefit of LICENSOR.
2. Royalty Payments.
In consideration of the licenses granted hereby, Licensee hereby agrees that it shall create a fund (the "Royalty Fund") to which it shall contribute not less than ten percent (10%) of its net profits (after the payment of operating expenses and the establishment of appropriate reserves). The Royalty Fund will be distributed among the non-profit organizations who participate in Licensee's programs in accordance with Licensee's policies, as announced from time to time.
3. Quality Control.
LICENSEE recognizes the reputation of LICENSOR as a provider of high quality goods and services and agrees to continue to maintain the same high standard of quality for its goods and services. LICENSOR is familiar with the current standards of quality of the goods and services provided by LICENSEE. LICENSOR agrees and stipulates that the current standards of quality of the goods and services provided by LICENSEE are adequate to meet the foregoing requirements and have the approval of LICENSOR.
4. Display of the Marks and Marking.
LICENSEE shall use or display the licensed Marks in a form and manner complying with reasonable standards prescribed by LICENSOR to promote and foster the goodwill represented by the licensed Marks. LICENSEE agrees to use status appropriate trademark attribution such as TM, ®, or "Registered Trademark."
The parties acknowledge and agree that all costs for any registrations obtained at the request of LICENSEE shall be borne solely by LICENSEE.
6. Term and Termination.
6.1 Termination for Breach. Either party may terminate the license created hereby Agreement by giving notice in writing to the other party in the event the other party is in material breach of these Terms shall have failed to cure such breach within sixty (60) days of receipt of written notice thereof from the first party.
6.2 Termination for Insolvency. These Terms shall immediately terminate if LICENSEE becomes insolvent, makes an assignment for the benefit of creditors, goes into liquidation or receivership, or otherwise loses legal control of its business. This termination shall be effective prior to the filing of any petition for bankruptcy.
6.3 Effect of Termination. Upon the effective date of termination as provided in Sections 6.1 or 6.2 above, LICENSEE agrees to discontinue all use of the Marks and cause its sub licensees to discontinue use of the Marks and LICENSEE shall transfer ownership to LICENSOR or any entity designated by LICENSOR of any trademarks and domain name registrations incorporating any of the Marks that have been obtained in LICENSOR's name; provided that LICENSEE and its sub licensees shall have the right for a period of ninety (90) days following the effective date of termination to exhaust its inventory of goods and advertising and promotional materials using the Marks.
6.4 Termination of Marks Under License to Licensor. Any individual rights granted hereunder shall automatically terminate as to said rights should LICENSOR lose its right to sublicense a Mark under license to LICENSOR.
6.5 Post Termination. Upon termination of the license granted by these Terms, LICENSEE and its sub licensees shall not adopt or use, without LICENSOR's prior written consent, any words or marks which are identical or confusingly or deceptively similar to the Marks.
7. Ownership of Marks.
LICENSEE acknowledges and agrees that LICENSOR is the owner of all rights in the Marks, that all use of the Marks by LICENSEE, including its sub licensees, shall inure to the benefit of LICENSOR and that upon termination of these Terms, all rights in the Marks, including the goodwill connected therewith, shall remain the property of LICENSOR.
8. Enforcement of Trademarks.
LICENSEE shall notify LICENSOR of any infringement or potential infringement of any of the Marks and shall cooperate with LICENSOR in any action that LICENSOR may choose to take in relation to such potential infringements.
9.1 Assignment. These Terms, including the rights and obligations set forth herein, are not assignable by either party without the prior written consent of the other party. Any attempted assignment in violation of these Terms shall be null and void.
9.2 Survival. The respective rights and obligations of the parties under these Terms shall indefinitely survive the termination of these Terms to the extent necessary to preserve the intended rights and obligations of the parties.
9.3 Section Headings. The section and subsection headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof.
9.4 Relationship. Nothing contained herein shall create a fiduciary, agency, partnership, or joint venture relationship between LICENSOR and LICENSEE. In no way is either party to be construed as the agent of the other party in any respect or to have the right to obligate or bind the other party in any manner whatsoever and nothing herein nor in the course of performance hereunder shall give or is intended to give any right of any kind to any third party.
9.5 Authority to Enter into Agreement. The parties and their representatives signing these Terms hereby acknowledge and represent that the individuals agreeing to these Terms are duly authorized agents of the parties hereto and are authorized and have full authority to enter into these Terms on behalf of the parties for whom they are signing.
9.6 Governing Law; Jurisdiction and Venue. These Terms shall be considered as having been entered into in the State of New York, regardless of the place of its physical execution or performance. The provisions of this Agreement shall in all respects be construed according to, and the rights and liabilities of the parties hereto shall in all respects be governed by the substantive laws of New York.
9.7 Partial Invalidity. The invalidity of any provision of these Terms shall not impair or affect the validity of the remaining portions hereof, and these Terms shall be construed as if such invalid provision had not been included herein.
9.8 Entire Agreement; Modifications. These Terms express the entire understanding of the parties hereto and supersedes and replaces any and all former oral and written agreements, understandings, representations or warranties relating to the subject matter hereof and contains all of the terms, conditions, understandings, representations, warranties and promises of the parties hereto in connection therewith. This is a fully integrated agreement. No modification, alteration or amendment of these Terms shall be valid or binding unless in writing and signed by the party to be charged with such modification, alteration or amendment.
10. Conduct of licensors.
To help everyone have a positive experience when using the Site and the Services, we ask, and you agree, to follow the following basic rules of conduct when using the Site and the Services:
- You will follow these Terms and all applicable laws;
- You will never give your password or account information to anyone (no CommonKindness employee will ever ask for it);
- You will not harass, threaten or abuse other people when using the Services in any manner;
- You will not interfere with others' use of the Services or the Site or act in a way that negatively affects other users' enjoyment of the Services or the Site;
- You will not attempt to harvest any screen names of e-mail addresses for any commercial or non-commercial use;
- You will not collect or store personal information about any other individual on the Services or the Site, or otherwise stalk, repeatedly contact or harass another user;
- You will not impersonate any other person or entity, or misrepresent a relationship with any person or entity, including misrepresenting a relationship with CommonKindness; similarly, you will not adopt a false identity if the purpose of doing so is to deceive or defraud another;
- You will not use the Services to harm minors in any way, or encourage interactions with minors of a sexual nature;
- You will not manipulate the Services so as to hide your identity or participation in the Services (by using another person or entity's identity, changing headers, or otherwise modifying any other possible identifier); and
- You will not post any Content that contains any viruses, cancel bots, Trojan horses, harmful code, or other computer programs or code designed to interrupt the Services, users' ability to enjoy the Services or the Site, or the proper functioning of any software, hardware or equipment or materials used in connection with the Services or the Site.
If you violate any of the guidelines set forth above, or any other aspect of these Terms, we reserve the right to suspend or terminate your rights to use the Services and/or remove all or any portion of your Content without giving you any notice and without a refund of any kind. In the event that your rights to use the Services are terminated, you will immediately lose access to any information that may be connected with your account or otherwise related to your use of the Services. YOU UNDERSTAND THAT COMMONKINDNESS IS NOT RESPONSIBLE FOR YOUR INABILITY TO ACCESS TO ANY INFORMATION THAT MAY BE CONNECTED WITH YOUR ACCOUNT OR OTHERWISE RELATED TO YOUR USE OF THE SERVICES FOR ANY REASON, WHETHER IT BE BECAUSE OF TERMINATION OF YOUR ACCOUNT, REMOVAL OF YOUR CONTENT, SOFTWARE, HARDWARE, OR INTERNET PROBLEMS OR ERRORS, OR ANY OTHER REASON.
You agree not to use another's account information without permission. You agree to provide accurate and complete account information as requested by us. You are solely responsible for the activity that occurs in connection with your account information, and you must keep any account passwords secure. Although CommonKindness will not be liable for your losses caused by any unauthorized use of your account information, you may be liable for the losses of CommonKindness or others due to such unauthorized use.
12. Submissions / Content.
If you upload, post, e-mail, link to, send, or otherwise make available any Content, you guarantee, represent and warrant to us that:
- Such Content is not obscene, or hateful or offensive on racial, ethnic, sexual or any other grounds; is not harmful, vulgar or distasteful; is not defamatory, libelous, and does not invade another person's privacy or proprietary rights, including any patent, trademark, trade secret, or copyrights of any party; does not advocate racism, hatred or physical harm of any kind toward any person (including harassment, stalking or threats of physical harm) and does not otherwise violate the rights or interest of others; does not advocate the commission of illegal acts; and does not display pornographic or sexually explicit material of any kind;
- You will not use the Services to promote or advertise any product or services related to tobacco, firearms, pornography, escort services, prostitution, gambling or any other products and services considered illegal anywhere in the USA.
- You have legal rights to upload, post, e-mail, link to, send, or otherwise make available such Content and it will not violate the rights of any person or entity, or any law or regulation, including without limitation, all laws and regulations regarding false advertising, unfair competition, deceptive trade practices, and consumer protection;
- Your use of the Services will at all times comply with your obligations under all applicable laws and regulations, including without limitation, the CAN-SPAM Act;
- You are entirely responsible for all of your Content; and
13. Right to Monitor Content.
We have the right, in our sole discretion, to monitor or remove any Content at any time and without notice if we believe that such Content violates these Terms, the rights of any third party, violates applicable law or regulation, or that the removal of such Content will improve our Services. You acknowledge that in no case will removal of all or any of your Content entitle you to any damages.
Your Right to Remove and Edit Content. You have the right to remove any or all of your Content from the Site at any time without limitation. You have the right to edit any or all of your Content at any time.
Disclaimer of Warranties
YOU UNDERSTAND THAT YOUR USE OF THE SERVICES (INCLUDING ANY DOWNLOADS AND ANY LOSS OF DATA OR OTHER DAMAGE TO YOUR COMPUTER SYSTEM YOU EXPERIENCE IN CONNECTION WITH THE SERVICES) IS AT YOUR SOLE RISK. YOU UNDERSTAND THAT THE SERVICES AND ALL INFORMATION, PRODUCTS, SERVICES AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS, SERVICES AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES, ARE PROVIDED ON AN "AS IS" "WHERE-IS" AND "WHERE AVAILABLE" BASIS, AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU. YOU ACKNOWLEDGE THAT COMMON KINDNESS MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. YOU UNDERSTAND THAT COMMON KINDNESS DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICES WILL MEET YOUR EXPECTATIONS. NO WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, CAN MODIFY THE TERMS OF THE DISCLAIMER SET FORTH IN THIS DOCUMENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, COMMONKINDNESS DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE SERVICES AND ALL INFORMATION, PRODUCTS, SERVICES AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS, SERVICES AND CONTENT) INCLUDED IN OR ACCESSIBLE IN ANY WAY FROM, THROUGH OR BY THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMMON KINDNESS OR ITS AFFILIATES BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, UNAUTHORIZED ACCESS TO, TAMPERING WITH OR TRANSMISSION OF YOUR PERSONAL INFORMATION OR COMMUNICATIONS, IN ANY WAY ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, EVEN IF COMMON KINDNESS HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE.