Terms of Service
Last updated January 5, 2024
The website located at kinema.com (the “Site”) is a copyrighted work belonging to Kinema, Inc. (the “Company”, “us”, “our”, and “we”). The material, including, without limitation, information, data, text, and other content contained in or delivered via the Services (as defined below) or otherwise made available by Kinema in connection with the Services is the “Site Content” (or “Content”). Any material that you contribute, provide, post or make available using the Services is “Your Content.” Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
1. Terms; Generally.
1.1 These Terms apply to the Site and any other related Company site(s) on which they are posted; where other terms or agreements are instead posted, those terms or agreements apply to the extent they conflict with these Terms.
1.2 The term “Organizer,” refers to event organizers using the Services to create events displayed on the Site for consumers using our Services (a) to consume information about or attend Events (“Attendees"), or (b) for any other reason, including, without limitation, use of Kinema’s platform to offer transactional video on demand (“TVOD”) consumption of Organizer provided content to end users (“End Users”). Organizers, Attendees, End Users and third parties using our Services are all referred to in these Terms collectively as “Users,” “you” or “your.”
1.4 These Terms of Service and the other documents referenced in them (including in Section 1.3 above) comprise Kinema's “Terms.” These Terms are a legally binding agreement between you and Kinema governing your access to and use of the Services and setting out your rights and responsibilities when you use the Services. By using any of our Services (including browsing a Site), you are agreeing to these Terms. If you do not agree to these Terms, please do not use or access the Services. If you will be using the Services on behalf of an entity (such as on behalf of your employer), you agree to these Terms on behalf of that entity and its affiliates and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that entity as well as yourself.
2. Kinema's Services. Kinema is not the creator, organizer or owner of the events or TVOD offerings listed on the Services. Kinema provides its Services, which allow Organizers to manage ticketing and registration and promote their own events and provide TVOD use. The Organizer is solely responsible for ensuring that any page displaying an event or TVOD use on the Site (and the event itself) meets all applicable local, state, provincial, national and other laws, rules and regulations, and that the goods and services described on the event page are delivered as described and in an accurate satisfactory manner. The Organizer of a paid event selects the payment processing method for its event as more fully described in the [Organizer License Agreement]. The Company selects the payment processing method for TVOD uses. Attendees or End Users must use the payment processing method(s) selected and made available by the Company in its sole discretion. If the Company selects a payment processing method that uses a third party to process the payment, then neither Kinema nor any of its payment processing partners processes the transaction, but the Company will transmit the Attendee’s or End User’s payment details to such payment provider.
3. Privacy and Attendee Information.
3.2 If you are an Organizer, you represent, warrant and agree that (a) you will at all times comply with all applicable local, state, provincial, national and other laws, rules and regulations with respect to information you collect from (or receive about) consumers, and (b) you will at all times comply with any applicable policies posted on the Services with respect to information you collect from (or receive about) consumers.
4. Term; Termination.
4.1 Kinema may terminate your right to use the Services at any time (a) if you breach these Terms; (b) if you misuse or abuse the Services, or use the Services in a way not intended or permitted by Kinema; or (c) if allowing you to access and use the Services would violate any applicable local, state, provincial, national and other laws, rules and regulations or would expose Kinema to legal liability. Kinema may choose to stop offering the Services, or any particular portion of the Services, or modify or replace any aspect of the Services, at any time. We will use reasonable efforts to provide you with notice of our termination of your access to the Services, where, in our sole discretion, failure to do so would materially prejudice you. You agree that Kinema will not be liable to you or any third-party as a result of its termination of your right to use or otherwise access the Services.
4.2 Except to the extent you have agreed otherwise in a separate written agreement between you and Kinema, including in an applicable License Agreement, you may terminate your access to the Services and the general applicability of Terms by deleting your account. If you are an Attendee or End User using the Services without a registered account, your only option for these Terms to no longer apply is to stop accessing the Services indefinitely. So long as you continue to access the Services, even without an account, these Terms remain in effect. If there is a separate agreement between you and Kinema governing your use of the Services and that agreement terminates or expires, these Terms (as unmodified by such agreement) will govern your use of the Services after such termination or expiration.
4.3 All provisions of these Terms that by their nature should survive termination of these Terms will survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, agreements to arbitrate, choices of law and judicial forum and intellectual property protections and licenses).
5. Release and Indemnification
5.1 You hereby agree to release Kinema 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 a dispute between you and a third party (including other Users) in connection with the Services or any event listed on the Services. In addition, you waive any applicable law or statute, which says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE RELEASED PARTY.”
5.2 You agree to defend, indemnify and hold Kinema and each of its respective officers, directors, agents, licensors, payment processing partners, other partners and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys’ and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise) or investigation made by any third party (each a “Claim”) relating to or arising out of: (a) your breach of these Terms (including any terms or agreements or policies incorporated into these Terms); (b) your use of the Services in violation of these Terms or other policies we post or make available; (c) your breach of any applicable local, state, provincial, national or other law, rule or regulation or the rights of any third party; (d) Kinema's collection and remission of taxes; and (e) if you are an Organizer, your events or TVOD offerings (including where Kinema has provided or may provide Services with respect to those events or TVOD offerings), provided that in the case of (e) this indemnification will not apply to the extent that the Claim arises out of Kinema's gross negligence or willful misconduct. Kinema will provide notice to you of any such Claim, provided that the failure or delay by Kinema in providing such notice will not limit your obligations hereunder except to the extent you are materially prejudiced by such failure. Also, in certain circumstances, Kinema may choose to handle the Claim ourselves, in which case you agree to cooperate with Kinema in any way we request.
6. Disclaimer of Warranties and Assumption of Risk
To the extent permitted by applicable laws, the Services are provided on an “as is” and “as available” basis. Kinema expressly disclaims all warranties of any kind, express or implied, including, but not limited to, implied warranties of merchantability, title, non-infringement and fitness for a particular purpose. For example, Kinema makes no warranty that (a) the Services (or any portion of the Services) will meet your requirements or expectations; (b) the Services will be uninterrupted, timely, secure, or error-free; or (c) the results that may be obtained from the use of the Services will be accurate or reliable.
You acknowledge that Kinema has no control over and does not guarantee the quality, safety, accuracy or legality of any event or Content associated with an event or TVOD use, the truth or accuracy of any information provided by Users (including the Attendee’s personal information shared with Organizers in connection with events) or the ability of any User to perform or actually complete a transaction. Kinema has no responsibility to you for, and hereby disclaims all liability arising from, the acts or omissions of any third parties that Kinema requires to provide the Services, that an Organizer chooses to assist with an event or TVOD use, or that you choose to contract with when using the Services.
You understand and agree that some events may carry inherent risk, and by participating in those events, you choose to assume those risks voluntarily. For example, some events may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those events.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, will be limited to the maximum extent permitted by law.
7. Limitation of Liability.
7.1 To the extent permitted by applicable laws, or as otherwise set forth herein, Kinema and any person or entity associated with Kinema's provision of the Services (e.g., an affiliate, vendor, strategic partner or employee) (“Associated Parties”), will not be liable to you or any third party, for: (a) any indirect, incidental, special, consequential, punitive or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data, opportunity costs, intangible losses, or the cost of substitute services (even if Kinema has been advised of the possibility of such damages); or (b) Your Content. In addition, other than the obligation of Kinema to pay out any fees, including event registration fees, in certain circumstances to certain organizers under an [Organizer License Agreement], and only in accordance with the terms therein, the maximum aggregate liability of Kinema or any of its associated parties is limited to the following:
(i) for Organizers of events with paid tickets or TVOD usage, and subject to the terms of the Organizer License Agreement, the fees (net of Kinema payment processing fees) that you paid us in the three (3) month period immediately preceding the circumstances giving rise to your claim; and
(ii) for Organizers of events with free tickets only, Attendees or other Users, (1) the total amount of all tickets or registrations that you purchased or made through the Services in the three (3) month period immediately preceding the circumstances giving rise to your claim; or (2) if you made no such purchases, one hundred U.S. dollars (US $100).
7.2 Nothing in these Terms is intended to exclude or limit any condition, warranty, right or liability which may not be lawfully excluded or limited. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by willful acts, negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only those liability and other limitations which are lawful in your jurisdiction (if any) will apply to you and our liability is limited to the maximum extent permitted by law.
8. Dispute Resolution. Please read this arbitration agreement (the “Arbitration Agreement”) carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) New York, NY 10281. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: Kinema, Inc., 225 Liberty Street, 29 FL, New York, NY 10281. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance-based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
(m) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York County, New York, for such purpose.
9. License to the Kinema Services.
9.2 Without limitations on other restrictions, limitations and prohibitions that we impose (in these Terms or elsewhere), you agree you will not directly or indirectly (a) copy, modify, reproduce, translate, localize, port or otherwise create derivatives of any part of the Services; (b) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services; (c) rent, lease, resell, distribute, use the Services for other commercial purposes not contemplated or otherwise exploit the Services in any unauthorized manner; (d) remove or alter any proprietary notices on the Services; or (e) engage in any activity that interferes with or disrupts the Services.
9.3 You agree that all Site Content may be protected by copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and laws. Kinema may own the Site Content or portions of the Site Content may be made available to Kinema through arrangements with third parties. Site Content included in or made available through the Services is the exclusive property of Kinema and is protected by copyright laws. You agree to use the Site Content only for purposes that are permitted by these Terms and any applicable local, state, provincial, national or other law, rule or regulation. Any rights not expressly granted herein are reserved.
9.4 The trademarks, service marks and logos of Kinema (the “Kinema Trademarks”) used and displayed in connection with the Services are registered and unregistered trademarks or service marks of Kinema. Other company, product and service names used in connection with the Services may be trademarks or service marks owned by third parties (the “Third Party Trademarks,” and, collectively with Kinema Trademarks, the “Trademarks”). The offering of the Services will not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Services without the prior written consent of Kinema specific for each such use. The Trademarks may not be used to disparage Kinema, any third party or Kinema's or such third party’s products or services, or in any manner that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless Kinema approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any Kinema Trademark will inure to Kinema's benefit. A number of issued patents and patents pending apply to the Services. Site Content may also be protected by copyrights owned by Kinema and/or third parties. Please note that if you copy portions of the Services you are violating these patent rights and copyrights.
10. Organizer Representations and Warranties. If you are an Organizer, without limiting the generality of any representations or warranties provided elsewhere in these Terms of Service, you represent and warrant to us that:
(a) You and your affiliates will obtain, prior to the start of ticket sales and/or TVOD usage, all applicable licenses, permits, and authorizations (individually and collectively, “Licensure”) with respect to events hosted by, or TVOD usage provided by, you or your affiliates on the Services. Licensure includes but is not limited to property operation permits and fire marshal permits;
(b) You and your affiliates will comply, and will ensure that the venues for each event hosted by you or your affiliates, as the case may be, on the Services will comply, with all applicable laws, regulations, rules and ordinances;
(c) You will only request that Kinema offer tickets to an event or access to TVOD usage after you have obtained any specific Licensures for such event or use, including, but not limited to (as applicable), any state, county, municipal or other local authority’s authorization of the event, traffic engineering authorizations, fire department inspection reports, authorization to receive minors (if applicable), sanitary authorization (if applicable), and any other potential applicable authorization; and (d) you and your affiliates will maintain in force throughout the term of access to the Service the applicable Licensure for organizer to promote, produce, sponsor host and sell tickets for all events, or charge for TVOD usage, hosted by you or your affiliates on the Services.
(d) Without limiting the generality of any release provided under these Terms of Service, as a material inducement to Kinema permitting you to access and use the Services, you hereby agree to release Kinema, and its affiliates and subsidiaries, and each of its and their respective parent companies, subsidiaries, officers, affiliates, representatives, shareholders, contractors, directors, agents, partners and employees from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, including, without limitation, attorneys’ fees, known and unknown, arising out of or in any way connected with your or your affiliates’ Licensure, any failure to obtain or maintain any Licensure, or any error in obtaining or maintaining any Licensure.
(e) Without limiting your indemnification obligations elsewhere under these Terms of Service, you agree to defend, indemnify and hold Kinema, and its affiliates and subsidiaries, and each of its and their respective officers, directors, agents, co-branders, licensors, payment processing partners, other partners and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys’ and accounting fees) resulting from any Claim due to or arising out of your or your affiliates’ Licensure, any failure to obtain or maintain any Licensure, or any error in obtaining or maintaining any Licensure. You agree to provide evidence of Licensure and related information prior to offering tickets or registrations for events on the Site and promptly upon the reasonable request of Kinema from time to time.
11. Fees and Refunds
11.1 Creating an account, listing an event or program, and accessing the Services are free. However, we charge fees when you sell or buy paid tickets or registrations, or charge for TVOD usage. These fees may vary based on individual agreements between Kinema and certain Organizers. Organizers ultimately determine whether these fees will be passed along to Attendees or End Users or absorbed into the ticket or registration price and paid by the Organizer out of ticket and registration gross proceeds, as the case may be. The fees charged to Attendees or End Users may include certain other charges, including without limitation, facility fees, royalties, taxes, processing fees and fulfillment fees. Therefore, the fees paid by Attendees or End User for an event or TVOD usage are not necessarily the same as those charged by Kinema to the applicable Organizer or the standard fees described on the Services to Organizers. In addition, certain fees are meant, on average, to defray certain costs incurred by Kinema, but may in some cases include an element of profit and in some cases include an element of loss. Kinema does not control (and thus cannot disclose) fees levied by your bank and/or credit card company, including fees for purchasing tickets and registrations in foreign currencies or from foreign persons. Be sure to check with your bank or credit card company prior to engaging in a transaction to understand all applicable fees, credit card surcharges and currency conversion rates.
11.2 Because all transactions are between an Organizer and its respective Attendees or End Users, Kinema asks that all Attendees or End Users contact the applicable Organizer of their event or TVOD usage with any refund requests outside of those circumstances described in the User Guidelines and Return Policy.
(a) If you are an Attendee, you acknowledge that should you receive a refund for your ticket, you will discard any ticket that we or any Organizer has delivered, and will not use it (or any copy of it) to attend the event. Violation of the foregoing constitutes fraud. You acknowledge that the applicable procedure to check the validity of the ticket must always be followed. Kinema will not be held liable under any circumstances for any costs arisen from non-compliance by Organizers with applicable procedures that must be implemented by Organizers to check validity of tickets or TVOD usage. Kinema will not be held liable under any circumstances for costs and/or damage associated with tickets or TVOD usage arisen from situations with fraud and/or for damage associated with the purchase of the ticket or TVOD use through non-official means, such as third parties.
(b) If you are an Organizer, you acknowledge that the applicable procedure to check the validity of the ticket must always be followed. Kinema will not be held liable under any circumstances for any costs arisen from non-compliance by Organizers with applicable procedures that must be implemented by Organizers to check validity of tickets. Kinema will not be held liable under any circumstances for costs and/or damage associated with tickets arisen from situations with fraud and/or for damage associated with the purchase of the ticket through non-official means, such as third parties.
12. Your Account with Kinema.
We may require you to create an account to access certain features or functions of the Services. You agree to follow certain rules when you create an account with Kinema or user the Services, including the following:
13. Your Content.
13.1 Kinema does not make any claim to Your Content. However, you are solely responsible for Your Content. You hereby grant Kinema a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable right and license to access, use, reproduce, transmit, adapt, modify, perform, display, distribute, translate, publish and create derivative works based on Your Content, in whole or in part, in any media, for the purpose of operating the Services (including Kinema's promotional and marketing services, which may include without limitation, promotion of your event on a third party website), and you hereby waive any and all moral right to use the name you submit with Your Content. Notwithstanding the foregoing, Kinema does not claim, and you do not transfer, any ownership rights in any of Your Content and nothing in these Terms of Service will restrict any rights that you may have to use and exploit Your Content outside of the Services.
13.2 You represent and warrant that you have all the rights, power and authority necessary to grant the foregoing license, and that all Your Content (a) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party; (b) complies with all applicable local, state, provincial, national and other laws, rules and regulations; and (c) does not violate these Terms.
13.3 Your Content must be accurate and truthful. Kinema reserves the right to remove Your Content from the Services if Kinema believes in its sole discretion that it violates these Terms, our User Guidelines, or for any other reason. Kinema may use your name and logo (whether or not you have made it available through the Services) for the purpose of identifying you as an existing or past customer of Kinema both on the Services and in marketing, advertising and promotional materials. We likewise may preserve Your Content and account information and may also disclose Your Content and account information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) respond to claims that any of Your Content violates the rights of third parties; (c) enforce or administer the Terms of Service, including without limitation, these Terms of Service; and/or (d) protect the rights, property and/or personal safety of Kinema, its users and/or the public, including fraud prevention. You understand that the technical processing and transmission of the Services, including Your Content, may involve transmissions over various networks and/or changes to conform and adapt to technical requirements of connecting networks or devices.
14. Rules for Use of Email Tools.
14.1 Kinema may make available to you features and tools that allow you to contact your Attendees, End Users, other users of the Services, or third parties via email (the “Email Tools”). If you use Email Tools, you represent and agree that:
(a) you have the right and authority to send emails to the addresses on your recipient list and such addresses were gathered in accordance with applicable email marketing regulations;
(c) you will use the Email Tools in compliance with all applicable local, state, provincial, national and other laws, rules and regulations, including those relating to spam and email, and including without limitation, the U.S. CAN-SPAM Act;
(d) you will only use the Email Tools to advertise, promote and/or manage a bona fide event listed on the Services;
(e) your use of the Email Tools and the content of your emails complies these Terms;
(f) you will not use false or misleading headers or deceptive subject lines in emails sent using the Email Tools;
(g) you will respond immediately and in accordance with instructions to any Attendee or End User sent to you by Kinema requesting you modify such Attendee’s or End User’s email preferences;
(h) you will provide an accessible and unconditional unsubscribe link for inclusion in every email where one is required, and you will not send any emails to any recipient who has unsubscribed from your mailing list.
14.2 If you violate any of these Email Tools rules or if your use of the Email Tools results in bounce rates, complaint rates or unsubscribe requests in excess of industry standards or if your emails cause disruption to the Services, Kinema may (without limitation of any other legal or contractual remedies it has) limit or suspend your access to the Email Tools.
15. Copyright Policy
15.1 Reporting Claims of Copyright Infringement
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this site (the "Website") infringe your copyright, you may request removal of those materials (or access to them) from the Website by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
Our designated copyright agent to receive DMCA Notices is:
225 Liberty ST, FL 29, New York, NY 10281
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
15.2 Counter Notification Procedures
If you believe that material you posted on the Website was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a "Counter Notice") by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
15.3 Repeat Infringers
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
16. Changes. Notices to you may be sent via email or regular mail to the address in Kinema's records. The Services may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to you generally on the Services. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
17. Assignability. We may, without your consent or approval, freely assign these Terms and our rights and obligations under these Terms whether to an affiliate or to another entity in connection with a corporate transaction or otherwise.
18. Applicable Law and Jurisdiction. These Terms are governed by the laws of the State of New York, without regard to its conflict of laws rules. These laws will apply no matter where in the world you live. But if you live outside of the United States, you may be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law. Kinema is based in New York, New York, and any legal action against Kinema related to our Services and that is not precluded by the arbitration provisions in Section 8 of these Terms must be filed and take place in New York. Thus, for any actions not subject to arbitration, you and Kinema agree to submit to the personal jurisdiction of the federal or state courts (as applicable) located in New York County, New York.
19. Third Party Websites; Linked Accounts; Third Party Offers. The Services may provide, or Users may provide, links to other Internet websites or resources. Because Kinema has no control over such websites and resources, you acknowledge and agree that Kinema is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, offers, products, services or other materials on or available from such websites or resources, or any damages or losses related thereto, even if such websites or resources are connected with Kinema partners or third party service providers.
20. Enforcement; No Waiver. Our failure to enforce any part of these Terms will not constitute a waiver of our right to later enforce that or any other part of these Terms. No oral waiver, amendment or modification of these Terms will be effective. If any provision of these Terms is found to be unenforceable, that part will be limited to the minimum extent necessary the other provisions of these Terms remain in full force and effect. Section titles in these Terms are for convenience and have no legal or contractual effect. No independent contractor, agency, partnership, joint venture or other such relationship is created by these Terms. We may freely assign any of our rights and obligations under these Terms. We may translate these Terms into other languages for your convenience. If there is a conflict between the English version and a translated version, the English version will control.