TERMS OF USE

 

This Application Service Provider Agreement (this Agreement) is made by and between Kingside Ventures, a Florida corporation with offices at 700 West E. Street Suite 3202, San Diego CA 92102(Company) and you, the User who created a KingSide Ventures account and assented to these Terms of Use (the User) as of today (the “Effective Date”). (User and Company are each sometimes referred to herein as a Party and collectively as the Parties.)

 

1. Overview. Company has developed certain proprietary computer software program(s) for an application service called KingSide Ventures (collectively, as the same may be supplemented, modified, updated, or enhanced from time to time, the Application), which is hosted on servers and made available to Users by means of the Internet, as well as related tools (including without limitation templates and analytical tools) (collectively, the Service). User desires to access and use the Service to conduct mobile marketing campaigns and Company desires to provide the Service to User, subject to all of the terms and conditions hereof.
2. Access. Company grants to User a non-exclusive, non-assignable, and non-transferable right during the Term (as hereinafter defined) to use the Service in accordance with all of the terms and conditions set forth herein.
3. User Requirements. User represents, warrants and covenants that it shall:
3.1. Provide and maintain account information that is up-to-date, materially accurate, and is sufficient for Company to contact User, charge accurate Fees, and provide the Service in all respects. User is responsible for maintaining and promptly updating account information for accuracy and completeness and keeping such information secure against unauthorized access.
3.2. Be solely responsible for User’s use of the Service. User shall use the Service in a manner that strictly complies with Company’s Acceptable Use Policy (the “AUP”), which is attached hereto as Exhibit A and which is also posted at http://www.kingside.com/terms_of_use.html, which is incorporated herein by reference. Company reserves the right to modify the AUP from time-to-time, and shall notify User in the event of any changes. If User objects to any changes to the updated AUP, Users sole remedy is to terminate this Agreement by providing Company with written notice thereof.
3.3. Obtain and record each consumers unambiguous consent to receive messages from User and to transfer the consumers personal data to the United States. At a minimum, User shall record the IP address and timestamp that corresponds to each instance of a consumer providing such consent, and shall provide Company a copy of such records within one business day of Company’s request. User shall without limitation clearly and conspicuously post in the Privacy Policy for the website on which User collects consumer contact information a notice hat the consumers personal data will be used for SMS and email marketing, and also transferred to the United States and that the applicable privacy laws may not provide adequate protection. Additionally, User represents and warrants that it has read and agrees to the privacy policy that is posted at http://www.KingSide Ventures.com/privacy.php, which is incorporated herein by reference.
4. Fees.
4.1. In consideration of Companys provision of the Service hereunder, User shall pay the currently posted fees (the Fees) in US Dollars (USD). Company reserves the right to change how it calculates Fees. In the event of a change to Fees, Company will notify User of the new calculation, which User must agree to before continuing to use the Service. If User does not agree to a new Fees calculation, User’s sole remedy is to terminate this Agreement.
4.2. If User fails to pay any amount due hereunder within thirty (30) days of the due date set forth herein, late charges of the lesser of 1.5% per month or the maximum allowable under applicable law, together with all of Companys expenses and collection costs, including reasonable attorneys fees, incurred in enforcing the Agreement, shall also become due and payable by User to Company. All amounts payable by User hereunder shall be paid in immediately available funds, in United States dollars, and are non-refundable. User is not entitled to an offset or reduction for any reason.
4.3. User shall be solely responsible for paying all fees, charges, and expenses that User incurs in accessing and using the Service, including without limitation standard text messaging charges that User’s wireless carrier imposes.
5. Operating Environment. The Parties acknowledge that successful implementation and use of the Service depends upon the User’s provision of appropriate hardware and software as Company may reasonably recommend from time to time (collectively, the Operating Environment). User shall be responsible for providing the Operating Environment at its own expense.
6. Service Standards.
6.1. Company shall use commercially reasonable efforts to cause the Service to be accessible to User, except for scheduled maintenance and required repairs, and except for any interruption due to causes beyond the reasonable control of, or not reasonably foreseeable by, Company, including, but not limited to, any Force Majeure Event (as hereinafter defined). In the event of any interruption or failure of the Service, other than as permitted in accordance with this § 6, User shall promptly notify Company thereof.
6.2. Under no circumstances shall User be entitled to a refund, credit, or other offset as a result of the Service being unavailable.
6.3. Company reserves the right to change the Service without notice and without liability. Company shall consider backward compatibility with respect to all such changes but is under no obligation to implement or maintain any such compatibility. User is solely responsible for maintaining operability with the then-current version of the Service.
6.4. Company reserves the right to pause or terminate User’s account or to limit User’s access to Service features at any time, for any reason.
6.5. Company has no obligation to review User’s use of the Service. Company does not control or approve of User’s use of the system or any of the content that User sends or receives through the Service. User agrees that Company may monitor User’s use of the Service and any message sent by or to User.
7. Proprietary Rights.As between User and Company, the User Materials are and shall remain the sole and exclusive property of User, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto.
8. Support. Company shall provide support during Companys normal business hours to assist User in identifying, verifying, and resolving problems with the Service.
9. Confidentiality. User agrees that the Application and Service are Companys confidential and/or trade secret information (collectively, Confidential Information). User shall not sell, transfer, publish, disclose, display, or otherwise make available any portion of the Confidential Information to others except as expressly provided for herein. User agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Companys rights therein. User shall use its best efforts to assist Company in identifying and preventing any unauthorized access, use, copying, or disclosure of the Confidential Information, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, User shall advise Company immediately in the event User learns or has reason to believe that any person to whom User has given access to Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any other the proprietary rights of Company, and User will, at User’s expense, cooperate with Company in seeking injunctive or other equitable relief in the name of User or Company against any such person. User agrees to maintain the confidentiality of Companys Confidential Information using at least as great a degree of care as User uses to maintain the confidentiality of User’s own most confidential information (and in no event less than a reasonable degree of care). User acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation the Application or any other Confidential Information referred to herein, or any information which, at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to Company inadequately compensable in damages at law, and Company is entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, Company may immediately terminate this Agreement, including all license rights granted herein, in the event User breaches any of its confidentiality obligations.
10. Indemnity.
10.1. User Indemnity. User shall indemnify, defend, and hold harmless Company and its affiliates and the directors, officers, employees and agents of the foregoing with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys fees, to the extent that it is based upon any third party claim that, if true, would constitute a breach of any of the User’s representations, warranties, obligations, covenants or agreements hereunder.
10.2. Indemnification Procedures. A Party seeking indemnification hereunder (an Indemnified Party) shall give the Party from whom indemnification is sought (the Indemnifying Party): (i) reasonably prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; (ii) reasonable cooperation, at the Indemnifying Partys expense, in the defense of such claim; and (iii) the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a
11. Limited Warranty.
11.1. Company warrants that the Application and Service will substantially conform in all material respects to the current documentation provided by Company in connection with the Service, including, without limitation, any updates thereof (the Documentation) when used in the Operating Environment in accordance with the Documentation and all of the terms and conditions hereof. In the event that the Service fails to perform in accordance with this warranty, User shall promptly inform Company of such fact, and, as User’s sole and exclusive remedy Company shall either: (i) repair or replace the Service to correct any defects in performance without any additional charge to User, or (ii) in the event that such repair or replacement cannot be done within a reasonable time and cost, terminate the Agreement.
11.2. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN § 11.1 HEREOF, COMPANY DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION, THAT THE APPLICATION, THE SERVICE, THE DOCUMENTATION, ANY ADDITIONAL WORK, OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET USER’S REQUIREMENTS OR THAT USER’S USE OF THE APPLICATION OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY SET FORTH IN § 11.1 HEREOF, COMPANY AND COMPANYS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, IN CONNECTION WITH THE APPLICATION, THE SERVICE, THE DOCUMENTATION, ANY ADDITIONAL WORK OR OTHERWISE, AND ANY SUCH WARRANTIES ARE HEREBY DISCLAIMED. THE APPLICATION, THE SERVICE AND THE DOCUMENTATION ARE PROVIDED AS IS, WITH ALL FAULTS AND DEFECTS, OTHER THAN AS EXPRESSLY SET FORTH IN § 11.1 HEREOF.
11.3. LIMITATION OF LIABILITY. COMPANY SHALL HAVE NO LIABILITY TO USER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFIT, REVENUE, DATA OR GOODWILL, WHETHER INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY OF THE SERVICE OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANYS AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE ARISING OUT OF OR RELATED TO COMPANYS PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR OTHERWISE EXCEED THE AMOUNT OF THE FEES PAID HEREUNDER TO COMPANY IN THE CALENDAR MONTH IN WHICH THE DIRECT DAMAGES ARE INCURRED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
11.4. Without limiting the foregoing, User agrees that Company is not liable for the final delivery of any message or any delivery-related delays, or any loss incurred by User as a result thereof.
12. Term. The term of this Agreement shall commence on the date on which User assents to these Terms of Use and shall continue until terminated as set forth below.
13. Termination.
13.1. Either Party may terminate this Agreement by providing notice to the other Party. Regardless of the circumstances, such termination shall not give rise to liability. User may provide notice by email to Josh@KingSide Ventures.com.
13.2. The termination of this Agreement shall automatically, and without further action by Company, terminate and extinguish User’s right to use the Service.
13.3. User agrees that Company has the right to delete all data, files, or other information that is stored in the User’s account subsequent to termination.
13.4. If User terminates this Agreement because of a material change to the AUP, User may request a refund for unused service credits.
13.5. The following provisions shall survive termination: § 4, Fees; § 7, Proprietary Rights; § 9, Confidentiality; § 10, Indemnity; § 11, Limited Warranty; § 14, General.
14. General
14.1. Taxes. User shall pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby, excluding, however, income taxes on profits which may be levied against Company. User shall reimburse Company for the amount of any such taxes or duties paid or accrued directly by Company as a result of this transaction.
14.2. Export Restrictions. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE APPLICATION OR THE SERVICE OR INFORMATION ABOUT SUCH APPLICATION OR SERVICE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. USER SHALL NOT EXPORT THE APPLICATION OR THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE DOCUMENTATION, OR INFORMATION ABOUT THE APPLICATION OR THE SERVICE WITHOUT THE WRITTEN CONSENT OF COMPANY AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS.
14.3. Each party represents and warrants to the other that it has full right and authority to enter into this Agreement and to perform all of its obligations hereunder; that its execution and performance of this Agreement will not breach any agreement between itself and a third party; and that the provisions of this Agreement are binding upon and enforceable against it except as may be limited by applicable United States bankruptcy laws and other laws affecting creditors rights.
14.4. Publicity. Company may use the name of and identify User as a Company User, in advertising, publicity, or similar materials distributed or displayed to prospective Users.
14.5. Complete Understanding. This Agreement, including all exhibits attached hereto, constitutes the final, complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any prior proposals, understandings and all other oral and written agreements between the Parties relating to the subject matter hereof.
14.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
14.7. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement or any Statement of Work shall be effective unless in writing and signed by the Party to be charged. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement or any Statement of Work shall operate as a waiver of any such right, power or remedy.
14.8. Force Majeure. Except for User’s obligations to pay Company hereunder, neither Party shall be liable to the other Party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, restrictions of law, regulations, orders or other governmental directives, labor disputes, acts of God, third-party mechanical or other equipment breakdowns, fire, explosions, fiber optic cable cuts, interruption or failure of telecommunication or digital transmission links, Internet failures or delays, storms or other similar events (each, a Force Majeure Event).
14.9. Assignment. User may not assign, by operation of law or otherwise (including, without limitation, by means of outsourcing), this Agreement, in whole or in part, without the prior written consent of Company, which consent shall not be unreasonably withheld. Company may assign this Agreement and/or subcontract some or all of its obligations hereunder.
14.10. Governing Law. This Agreement shall be governed by the laws of the State of California, excluding conflict of laws provisions thereof and the Parties hereby submit to exclusive jurisdiction in the federal and state courts of California located in San Francisco County.
14.11. Notices. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery or email, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to Company at the address first set forth and to User at the address provided in User’s member profile.
14.12. Independent Contractors. Company and its personnel or agents, in performance of this Agreement, are acting as independent contractors and not as an employees or agents of User. Under no circumstance will either Party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty to or make any representation on behalf of the other.

 

 

Exhibit A: Acceptable Use Policy

We require our users to learn the law and follow best practices. You must abide by all applicable local, state, national and international laws and regulations. These topics are complicated and evolving. Get help from an attorney who knows this area of the law.

More information is available at FTC.gov, FCC.gov, DoNotCall.gov, and MMAGlobal.com. Make sure you know how the CAN-SPAM Act, Telemarketing Sales Rule, Telephone Consumer Protection Act, and FTC Act impact your business practices. You must strictly comply with these laws.

When using our Service, you must:

Not send messages without the recipients express consent;
Not send messages to anyone under the age of 18;
Not send messages at a time of day that is restricted by the TCPA;
Not harvest, or otherwise collect information about others, without consent;
Include accurate contact information in all messages sent through the Service and not mislead others as to the identity of the sender of User’s messages;
Include a clear and conspicuous explanation of how to opt out, including a return email address or another easy Internet-based mechanism for opting out.
Not transmit any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, libelous, immoral, harmful, vulgar, obscene or otherwise objectionable material of any kind;
Not transmit any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights, or other rights of publicity;
Not transmit any material that contains viruses, Trojan horses, worm, time bombs, cancel-bots or any other harmful/deleterious programs;
Not improperly use networks connected to the Service or violate the regulations, policies, or procedures of such networks;
Not attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service;
Not interfere with anyone’s use of the Service; or
Not engage in any activity that Company believes could subject it to liability.
Log the URL, IP address, and timestamp that correspond to each consumer’s consent.