Last Updated: 1/10/2018
1.1. Consideration. You understand and agree that these Terms are entered into in consideration of your use of the Services and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
1.2. Changes to these Terms. The Site, App, and other portions of the Services are owned and operated by Kwikli. Kwikli reserves the right to revise these Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Site, App, or on or within the Service. Any revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision. You should visit this page regularly to ensure your continued acceptance of these Terms. Your continued use of the Services after any revision to these Terms constitutes your binding acceptance of the revised Terms. Notwithstanding the preceding sentences of this Section 1.2, no revisions to these Terms will apply to any dispute between you and Kwikli that arose prior to the date of such revision.
1.3. Evolving Nature of Services. The Services are new and subject to change at any time. We are continually looking to improve the Services but if you are at any time dissatisfied with the Services, then your sole remedy is to discontinue use of the Services. However, we do want to hear from our users so do not hesitate to send us an email at email@example.com to let us know what you think.
2. USE OF THE SERVICES
You are responsible for obtaining at your own expense all equipment and services needed to access the Services, including but not limited to a mobile device that is compatible with the App. If you are accessing the Services by a mobile device, your wireless carrier may charge you fees for data, text messaging, and other wireless access or communications services. We do not guarantee that our mobile Services can be accessed through all wireless devices or service plans or are available in all geographical locations.
The Services are not intended for persons under 18, including children under the age of 13. By using the Services, you affirm that you are at least 18 years of age. If you are under the age of 18, you must not use or access the Services.
4. SERVICE SECURITY
4.1. Personal Security. Be smart when using the Services or any Third Party Sites. You should not disclose personal information to strangers that would enable them to locate you offline. This means you should not give out your name, address, place of employment, school, etc., while communicating with other users of the Services.
4.2. Service Security. You are prohibited from violating, or attempting to violate, the security of the Services. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Services, at Kwikli’s sole discretion. Kwikli reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Services.
5. MATERIALS SUBMITTED TO THE SERVICES; LICENSE GRANT FROM YOU TO KWIKLI
5.1. User Content. This section governs any material that you upload or transmit to or through the Services including, without limitation, comments, messages, photographs, or any other form of copyrighted material (collectively, “User Content”). You are solely responsible for all User Content you submit to or through the Services. You agree, represent, and warrant that i) any User Content you upload or transmit to or through the Services is truthful, accurate, not misleading, and offered in good faith, ii) you have all rights, licenses, permissions, and authorizations necessary to upload or transmit the User Content to the Services and grant the rights to the User Content as set forth in these Terms, and iii) the Use of such User Content in a manner consistent with these Terms will not (a) infringe the rights of any third party, including copyright, trademark, patent and other intellectual property rights or other protected rights, such as the rights of privacy or publicity, or (b) require Kwikli or any Third Party Site on or through which the Services are made available to pay any fees of any kind to any third party. We have the right, but not the obligation, to monitor, review, access, and remove any or all of your User Content from the Services at our sole discretion.
5.3. Reporting of User Content. If you locate any User Content on or through the Services that you find offensive or objectionable, or if you believe any User Content is infringing of your intellectual property rights, please report such User Content to Kwikli by sending an email to firstname.lastname@example.org. Kwikli reserves the sole right, but not obligation, to remove any message that it deems inappropriate in its sole discretion and without any liability to you.
6.2. Accuracy of Information. You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms required by Kwikli. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. If messages sent to an email address provided by you are returned as undeliverable, Kwikli reserves the right to terminate your account immediately with or without notice to you and without any liability to you or any third party.
6.3. Invitation Service. Kwikli may offer an invitation service to tell a friend about the Services. If you choose to use our invitation service, we may ask you for information needed to send the invitation, such as your friend’s email address. We may also offer you the opportunity to invite your friend via third party services such as Facebook or Twitter. We will automatically send your friend an email inviting him or her to try the Service. By providing email addresses of non-Users, you represent that you have the right to do so and that such information may also be provided to the third party service that you have designated to contact the non-User. We store and use this information to send this invitation, to register a friend if your invitation is accepted, and to track the success of our invitation service. Your friend may contact us at email@example.com to request that we remove this information from our database.
7. OTHER PROHIBITED ACTIVITIES
7.1. In using the Services, you agree not to:
a) Upload or otherwise transmit to or through the Services any information that is unlawful, harmful, harassing, defamatory, libelous, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind or information that contains a link to such objectionable material;
b) Attempt to, or harass, abuse, or harm or advocate or incite harassment, abuse or harm of another person or group, including Kwikli employees;
c) Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise);
d) Create a false identify or impersonate another person or entity in any way;
e) Solicit or attempt to solicit personal information from other users of the Services;
f) Restrict, discourage or inhibit any person from using the Services, disclose personal information about a third person on the Services or obtained from the Services without the consent of such person or collect information about users of the Services;
g) Use the Service, without Kwikli’s express written consent, for any commercial purpose, including, communicating or facilitating any commercial advertisement or solicitation;
h) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Services or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Services, or by law, or otherwise attempt to use or access any portion of the Services other than as intended by Kwikli;
i) Gain unauthorized access to the Services, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Services;
j) Reproduce, distribute, publicly display, publicly perform, sell, trade, resell or exploit any portion of the Services, use of the Services, access to the Services or content obtained through the Services, for any purpose other than expressly permitted by these Terms, including, by way of example and not limitation, by doing or engaging in any of the following without Kwikli’s express written consent:
i. framing, embedding and/or passing off User Content obtained from the Services in such a manner as to present them as originating from a source other than the Services;
ii. copying, caching or reformatting any User Content for commercial purposes in any manner whatsoever, whether by copying to physical or electronic media for purposes of buffering delivery or converting transmissions from the Service to alternative delivery formats;
iii. altering, defacing, mutilating or otherwise bypassing any approved software through which the Services are made available; and
iv. using any trademarks, service marks, design marks, logos, photographs or other content belonging to Kwikli or obtained from the Services.
k) Post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Services or communications equipment and computers connected to the Services;
l) Remove, disable, damage, circumvent or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of any part of the Services or any content on the Services, or features that enforce limitations on the use of the Services or any content on the Services;
m) Use any scraper, spider, cheats, exploits, robots or other automated means of any kind to access, modify or interfere with the Services, or harvest or manipulate data, except and solely to the extent permitted by these Terms and the features of the Services, deep-link to any feature or content on the Services, bypass any robot exclusion headers or other measures we may use to prevent or restrict access to the Services;
n) Interfere with or disrupt the Services, networks or servers connected to the Services or violate the regulations, policies or procedures of such networks or servers;
o) Violate any applicable federal, state or local laws or regulations or these Terms; or
p) Assist or permit any persons in engaging in any of the activities described above.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. Generally. The content made available on or through the Services, including without limitation, any text, software, graphics, photos, sounds, music, videos and interactive features, but excluding User Content, may be protected by copyright or other intellectual property rights and owned by Kwikli or third party licensors of Kwikli. No material made available on or through the Services may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without written permission of the copyright owner. Modification of materials obtained from the Services, including, but not limited to, User Content, for any other purpose, including, without limitation, any commercial purpose, is a violation of the copyrights and other proprietary rights of Kwikli or its licensors, unless you have obtained express written authorization to the contrary. All design rights, databases and compilations and other intellectual property rights, in each case whether registered or unregistered, and related goodwill are proprietary to Kwikli.
8.2. Trademarks. All trademarks, service marks, logos and trade names on the Services, whether registered or unregistered, are proprietary to Kwikli or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.
8.3. No Implied Rights. There are no implied licenses granted in these Terms.
8.4. Feedback. You agree that Kwikli shall acquire, and you hereby grant and otherwise transfer to Kwikli, any and all right, title, and interest in and to any actual or suggested modifications, design changes, improvements, and other information regarding the features and performance of the Services you offer (“Feedback”) to Kwikli, without the payment of additional consideration.
9. LINKS TO THIRD PARTY SITES
As you use the Services you may notice links to Third Party Sites. These links are for convenience only. If you use these links, you will leave the Services. Certain of these Third Party Sites may make use of Kwikli’s proprietary intellectual property rights (such as copyrights, trademarks, service marks, logos and trade names) under license from Kwikli. Kwikli is not responsible for the availability or content of these Third Party Sites or for any viruses or other damaging elements encountered in linking to a Third Party Site, whether or not Kwikli is affiliated with the owners of such Third Party Sites. In addition, the provisioning of these links to Third Party Sites is not an endorsement or approval by Kwikli of the organizations sponsoring such Third Party Sites or their products or services. These Terms do not apply to Third Party Sites, and you should review applicable terms and policies, including any relevant privacy policies, associated with any Third Party Sites, applications, software or services.
YOU AGREE THAT KWIKLI WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS YOU MAY HAVE ON OR THROUGH A THIRD PARTY SITE OR AS THE RESULT OF THE PRESENCE OF ANY THIRD PARTY ADVERTISING ON THE SERVICES.
You agree to indemnify, defend, and hold harmless Kwikli and its parent, subsidiaries, affiliates, investors, sublicensees or any related companies, licensors and suppliers, and their respective directors, officers, employees, agents, representatives, contractors, and assigns, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, attorneys’ fees and court costs) arising from or in any way related to: (1) your use or misuse of the Services; (2) your User Content, including Kwikli’s or any user’s Use of your User Content consistent with these Terms; (3) your breach or other violation of these Terms, including any representations, warranties and covenants herein; or (4) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Content infringes or violates any third-party intellectual property rights or other proprietary rights. Notwithstanding the foregoing, Kwikli reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Kwikli if Kwikli, in its reasonable discretion, concludes that you are not adequately protecting Kwikli’s interests or are incapable of protecting Kwikli’s interests, and you agree to cooperate with Kwikli’s defense of these claims. You agree not to settle any matter without the prior written consent from Kwikli. Kwikli will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
THE SERVICES, USER CONTENT, AND ANY THIRD PARTY CONTENT, SOFTWARE OR APPS MADE AVAILABLE ON OR THROUGH OR IN RELATION TO THE SERVICES, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KWIKLI AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KWIKLI, AN EMPLOYEE OR REPRESENTATIVE OF KWIKLI OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. KWIKLI AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES OR ANY PART THEREOF, OR ANY PRODUCTS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICES OR ANY ASSOCIATED SITES OR APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
12. LIMITATION OF LIABILITY
IN NO EVENT WILL KWIKLI OR ITS OFFICERS, DIRECTORS, LICENSORS OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (1) THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICES; (2) ANY PRODUCTS ADVERTISED, PROMOTED OR DISPLAYED ON THE SERVICES; AND (3) CONTENT MADE AVAILABLE THROUGH THE SERVICES, IN EACH INSTANCE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF KWIKLI OR ITS LICENSORS OR SUPPLIERS ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL KWIKLI OR ITS LICENSORS OR SUPPLIERS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID KWIKLI IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
13. LIMITATIONS; BASIS OF THE BARGAIN
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND KWIKLI, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND KWIKLI, KWIKLI’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT KWIKLI WOULD NOT BE ABLE TO OFFER THE SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
14. TERM AND TERMINATION
14.1. Term. These Terms, as amended, will be effective commencing with your first use, pre-registration or registration of the Services and will remain in full force and effect throughout your use of the Services.
14.2. Termination by Kwikli. Kwikli may terminate your use of the Services or any of our features or services at any time and for any reason, with or without notice, for conduct violating these Terms or upon Kwikli’s sole determination. You hereby agree to Kwikli’s broad right of termination. You agree that if your use of the Services is terminated pursuant to these Terms, you will not attempt to use the Services under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor.
14.3. Termination by You. You are free to terminate your use of the Services at any time. You can simply choose to stop visiting or using any aspect of the Services. If you wish to terminate your account on the Services, you may do so by sending an email to firstname.lastname@example.org or using any other account termination functionality that may be offered through the Services.
16. JURISDICTIONAL ISSUES
The Site and the Services are controlled and operated by Kwikli from its offices within New Zealand. Kwikli makes no representation that materials on the Services are appropriate or available for use in other locations. Those who choose to access or use the Services from other locations, including from outside New Zealand, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Services from jurisdictions where the contents or practices of the Services are illegal, unauthorized or penalized is strictly prohibited.
17. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
17.1.1 If you are a copyright owner or an agent thereof, and you believe that any content posted on the Site or App infringes your copyrights, you may submit a notification pursuant to the Copyright Act 1994 by providing our Designated Copyright Agent with the following information in writing:
17.1.1 A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
17.1.2 Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site or App are covered by a single notification, a representative list of such works at the Site or App;
17.1.3 Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Kwikli to locate the material;
17.1.4 Information reasonably sufficient to permit Kwikli to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
17.1.5 A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
17.1.6 A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
17.2 The Kwikli Designated Copyright Agent to receive notifications of claimed infringement can be reached by email at: email@example.com. For clarity, only copyright infringement notices should go to the Kwikli Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Kwikli customer service by email at: firstname.lastname@example.org. You acknowledge that if you fail to comply with all of these requirements, your copyright infringement notice may not be valid.
18. CHOICE OF LAW; VENUE
Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed by the federal laws of New Zealand for all claims, without regard to or application of choice of laws, rules or principles. The parties hereby consent to the exclusive jurisdiction of the courts of New Zealand for all claims and both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue.
19.1. Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Kwikli to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
19.2. Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
19.3. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Kwikli without restriction. Any assignment attempted to be made by you in violation of these Terms shall be void. These Terms will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns.
19.4. No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Kwikli as a result of these Terms or use of the Services.
19.5. Survival. The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 4 (Service Security), 5 (Materials Submitted to the Services; License Grant from you to Kwikli), 7 (Other Prohibited Activities), 8 (Intellectual Property Rights), 9 (Links to Third Party Sites), 10 (Indemnity), 11 (Disclaimers), 12 (Limitation of Liability), 13 (Limitations; Basis of the Bargain), 15 (Privacy), 17 (Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements), 18 (Dispute Resolution), and 19 (Miscellaneous).
19.6. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
19.7. Entire Agreement. This is the entire agreement between you and Kwikli relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by Kwikli as authorized in these Terms.
19.8. Disclosures. The services hereunder are offered by Kwikli Ltd (Company number 6786481). You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com.