Welcome to Kimo! We invite you to access our websites and make use of our Service (as defined below), but please note that your invitation and subsequent access and use is subject to your agreement with these Terms of Service ('Terms'). This document describes in detail your rights and our rights relating to the provision of the Service (as defined below), so please review these Terms carefully before you proceed.
At all times, no matter what sort of subscription you have, you are always bound to these Terms. You further agree to be bound by the Kimo Commercial Terms (if you have a paid subscription) and the KIMO Business Terms (if you have subscription to Kimo Business).
Any and all Kimo Software (as defined below), the Kimo service and other products, services and websites hosted or made available by Kimo, including, for example our website, app and browser plugin, are collectively referred to in these Terms as the "Service". Please note that the scope of the Service may change over time.
The Service consists of providing a user-centric, personalized learning journey for all users across relevant third-party learning content on the web (paid and/or free). The promise of Kimo is to provide users with the most effective path from 'A' (e.g. the current job, or current skills) to 'B' (e.g. a desired future job, or desired skills) through all digital content by generating the ideal learning path, building the right skills sequentially over time. We support our main service by a set of micro-services to, such as i) personalized recommendations screen, ii) auto-generated summaries of content, iii) a chatbot companion, and iv) a clean interface to study without distractions. We acknowledge and value our content partners ('partners') to enrich this journey for our users and aim to create a mutually beneficial partnership.
The Kimo service is available as a monthly, quarterly or annual subscription and has three levels: Student, Premium, or Pro. The fee charged by Kimo to users is for the software designed by Kimo, including the micro-services, not for the content found on the platform.
Kimo does not own any of the third-party content shown on the platform. We respect the IP Rights (as defined below) of others, and we always make references to original authors of the content (e.g. writers, teachers), as well as the platforms where contents appeared initially (e.g. Youtube, Coursera).
You, the Account Holder and/or the one who makes use of the Service in any other way (e.g. by accessing one or more of our websites), are one party to this contract. (An Account Holder is the person or entity who has contracted with Kimo as either an individual Free or Premium user or as a Customer as defined in our Kimo Business Agreement.) The other party to this contract is Kimo B.V., a corporation headquartered in Amsterdam, The Netherlands. The corporation called Kimo may be referred to in these Terms of Service as "Kimo," "we" and sometimes "us").
IS THIS THE ONLY CONTRACT I HAVE WITH KIMO?
It depends upon how you interact with the Service and our software applications. In any case, the Terms always apply to the relation between Kimo and you, including to any and all offers, quotations and agreements you conclude with us. In some cases, additional agreements may be applicable. Although these Terms serve as an end user license agreement, if you install any Kimo Software on your computing devices, you may be asked to agree to an additional end user license agreement or you may be asked to confirm acceptance of the Terms and Separate Agreement before you will be able to use the Kimo Software.
These Terms may be amended as new features, technology or legal requirements arise, so please check back from time to time. If we make a significant change, we'll notify you and, where legally required, seek your consent.
If we do update these Terms, you are free to decide whether to accept the updated terms or to stop using our Service (see "How is My Account Closed" below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described above, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement expressly amending these Terms and bearing a written signature by you and us. For clarity, email or other (digital) communications will not constitute an effective written agreement for this purpose.
In order to fully make use of our Service, a KIMO service account is required. First, you need to create an Kimo service account. You create an account by providing us with an email address and creating a password, or by using a third party (e.g. Facebook, LinkedIn, Google) to provide this for you. We refer to this as your "Basic Subscriber Information". We encourage you to use a distinct and non-obvious password that is different from passwords you use for any other service. You are responsible for maintaining the accuracy, completeness and confidentiality of your Basic Subscriber Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Basic Subscriber Information. We will not be liable for any loss or damage related to the Basic Subscriber Information, such as loss or damage arising from your failure to provide us with accurate information or to keep your Basic Subscriber Information secure. If you discover any unauthorized use of your Basic Subscriber Information or suspect that anyone may be able to access your private Content without authorization, you should immediately change your password and notify our Customer Support team.
Second, in order to make full use of our Service, you will need to access your account through a web browser or by installing our client software on your computers, tablets and phones. Obtaining those devices and paying for their connectivity and data plans is your responsibility. Please note that additional costs from your telecom providers and other parties may apply. Kimo also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
Sharing Kimo service accounts is not allowed. Your Kimo service account is strictly personal. This does apply with respect to both our free and paid Service. If you share your Basic Subscriber Information with anyone, that other person may be able to take control of the account, and we may not be able to determine who is the proper Account Holder. We will not have any liability to you (or anyone you share your Basic Subscriber Information with) as a result of your or their actions under those circumstances. Since you may use a free Kimo service account, and since we provide a number of mechanisms to allow you to share your account Content with others, we strongly urge you not to share your information with anyone, unless you are doing so as part of your estate planning purposes, as discussed below.
Once your account is created and you accept these Terms, we grant you a worldwide, limited, personal, non-assignable, non-exclusive license, without the right to grant sublicenses to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account or until we close your account pursuant to these Terms. In addition, we grant you a worldwide, limited, personal, non-assignable, non-exclusive license, without the right to grant sublicenses to use the Kimo Software provided to you by or on behalf of Kimo, for the sole purpose of enabling you to use the Kimo Software and enjoy the benefit of the Service, subject to any applicable (license) terms provided with the Kimo Software and these Terms, for so long as you are not barred from using the Kimo Software under the laws applicable to you, until you close your account or until we close your account pursuant to these Terms. Depending on your subscription, the licenses granted are royalty bearing or royalty free. In any case you do not obtain any other right, IP Right or interest in Kimo (including but not limited to IP Rights (as defined below)), the Service or the Software. You shall not use the Service and Kimo Software in a way that harms or may harm Kimo, the Service and/or the Kimo Software and/or in a way that infringes or may infringe third party rights or IP Rights.
You retain the IP Rights you already held in your Content before you submitted, posted or displayed it on or through the Service. But you do have to grant Kimo a limited license, as described below, so we can make your data accessible and usable on the Service. Other than this limited license and other rights you grant in these Terms, KIMO acknowledges and agrees that we do not obtain any right, title or interest from you under these Terms in any of your Content.
In order to enable Kimo to operate the Service, we must obtain from you certain limited license rights to process your Content that is covered by IP Rights so that (technical) actions we take in operating the Service are not considered legal violations. For example, copyright laws could prevent us from processing, maintaining, storing, backing-up and distributing certain Content, unless you give us permission to use the IP Rights vested herein. Accordingly, by using the Service and uploading Content, you are herewith granting Kimo a license to use the IP Rights that are vested and will in the future be vested in the Content, for the purpose that Kimo will be able to operate the Software and the Service in the broadest sense possible. For the avoidance of doubt, this license comprises the right to Kimo to make available to the public, display, perform and distribute your Content and to modify (mostly for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices, as well as for learning purposes, e.g. showing content in a clean format) and reproduce such Content to enable Kimo to operate the Service. You also agree that Kimo has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that the aforesaid license is perpetual, royalty free, transferable, sub-licensable, worldwide and irrevocable, and include a right for KIMO to make such Content available to, and transfer or sublicense these rights to, parties currently and in the future liaised to KIMO others with whom KIMO has or will conclude in the future contractual relationships related to the provision of the Service and/or the Software, mostly for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if KIMO determines such access is necessary to comply with its legal obligations. Termination of our agreement (for whatever reason), the termination of your subscription (for whatever reason) and/or the fact that you (temporarily or permanently) ceased to make use of the Service (for whatever reason) do not influence the existence of this license granted by you to us and shall thus survive termination of our agreement.
If you elect to use any third-party service or application that is integrated with Kimo, you also agree that the licenses granted to Kimo in the preceding paragraph shall apply to Content that is submitted or uploaded through such third-party service or application. Where necessary, you shall take any and all steps that are necessary to ensure that Kimo shall obtain all necessary licenses and other rights in this respect. If the third-party service or application you elect to use would access or extract Content, you grant Kimo the right and license to enable third party access to and extraction of your Content. You shall also take any and all steps that are necessary to ensure that Kimo shall obtain any and all necessary licenses and other rights to enable this. Kimo does not assume any responsibility for, or liability on account of, the actions or omissions of such third-party applications or service providers.
As we rely upon your rights to upload and distribute your Content, you represent and warrant to Kimo that (1) you have the unfettered legal rights and authority to submit your Content to Kimo, to make any other use, publication or other distribution of that Content in your use of the Service, and to grant the rights granted to Kimo under these Terms; and (2) that your and Kimo's use of the Content does not infringe any and all rights or IP Rights of third parties; and (3) your Content and the use thereof complies with these Terms.
You herewith indemnify Kimo for any and all (legal) claims, damages and costs (including legal costs; and legal costs claims and cost orders pursuant to article 1019h Dutch Civil Code and similar provisions) that relate to the use by you and/or Kimo of the Content, independent of whether or not use has been made of abovementioned third party services.
Finally, you understand and agree that Kimo, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You herewith rescind any and all moral rights and personality rights that currently are and will in the future be vested in the Content, in the broadest sense possible, including but not limited to the personality rights of article 25 Dutch Copyright Act.
You may use the Kimo service to send messages (e.g. notes you want to share) to an email address, to a telephone number via SMS, or through a social media account (e.g. Facebook or LinkedIn) that has not been linked to an Kimo account. You will send these messages making use of the Kimo service. Therefore, Kimo may mention in the message that it is shared via Kimo. We are relying on your representation to us, which you give herewith, that you have a direct relationship with the recipient(s) and that you are respecting the legal rights of the recipient(s) not to receive certain kinds of messages (such as harassing messages, unsolicited commercial messages, and unwanted SMS messages). Whenever you send any kind of message (via the Kimo service) to a third party you represent and warrant to Kimo that you are acting within the law and that you have prior consent from the recipient to send them such a message.
Yes. Your use of the Service must be in accordance with these Terms. When it comes to your use of the Service, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third-party application or services integrated with the Kimo service. If we find that any shared Content in your account violates our Terms of Service (including by violating another person's rights or IP Rights or privacy rights), we reserve the right to suspend or terminate your use of the Service, un-share and/or take down such content. You explicitly agree that we will not be liable to you nor any third party for any and all damages and costs in relation hereto, in the broadest sense possible.
While you own the Content you store within the Service (subject to third party rights), you acknowledge and agree that Kimo (and/or our partners, affiliates and/or licensors, e.g. the parties we use to show learning content) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software that is part of the Service and all Kimo software deployed by you or a third party to enable capturing of Content originating outside the Service, such as Kimo browser plugin or the Application ('app', Android or iOS) for a mobile device (all understood as the "Kimo Software").
INTELLECTUAL PROPERTY RIGHTS.
In agreeing to these Terms, you also agree that Kimo owns and remains to own any and all rights in the Service and Kimo Software, including but not limited to any and all any and all intellectual and industrial property rights, anywhere in the world, registered or unregistered (including (rights to file for) applications, priority rights, extensions and Supplementary Protection Certificates), including but not limited to, copyrights, database rights, design rights, trade mark rights, trade name rights, patent rights, rights on knowhow and data, trade secrets, including any and all rights of use and goodwill related to these rights ("IP Rights"). You will not obtain any rights in the Service and Kimo Software, apart from the rights expressly granted to you in the Terms. You expressly agree to not modify, create derivative works of, decompile, reverse engineer or otherwise attempt to extract source code (which you acknowledge it is a trade secret from Kimo) from any Kimo Software and/or Service, unless you are expressly permitted to do so under an open source license, we give you express prior written permission or if you are otherwise legally permitted to do so notwithstanding this prohibition.
RIGHT TO MODIFY THE SERVICE.
We are and shall be allowed in our sole discretion, to implement new elements as part of and/or ancillary to the Service, including changes that may affect the previous mode of operation of the Service or Kimo Software. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We will not be liable to any damage (including but not limited to damages, costs or missed profits) you suffer due to these modifications. We shall also be allowed to establish limits, without prior notification, to the nature or size of storage available to you, the scope and amount of content accessible via the Service and/or Kimo Software the ability to send or receive email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. For example, if you use Kimo Student, you will not enjoy all of the benefits provided to subscribers of Kimo Premium, Kimo Pro or Kimo Business. We will not be liable to any damage (including but not limited to damages, costs or missed profits) you suffer in connection with the aforementioned actions or the lack thereof.
You also acknowledge that a variety of Kimo actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Kimo has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you are a subscriber for Kimo Premium, Kimo Business or another paid version of the Service (each a "Paid Service") and find that any such modifications or interruption of the Paid Service adversely affects you, you may notify our Customer Support team, explain the adverse impact the modification has created and, if you desire, request a termination of your Paid Service. Upon receipt of any such request, we will endeavour, but are not obliged, to, at our own discretion, promptly remedy the adverse impact caused by the modification, extend the duration of your Paid Service subscription for a period of time equal to the interruption and/or refund a portion of your Paid Service subscription fee equal to the remaining unused term of the Paid Service subscription, as we determine appropriate or as may be required by applicable law.
RIGHT TO ENGAGE THIRD PARTIES.
RIGHT TO USE THIRD-PARTY SOFTWARE.
Kimo may from time to time include as part of the Service and KIMO Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. Kimo has no control over the content and functionality of this third party software and expressly disclaims any warranty or other assurance to you regarding such third party software. We will not be liable to any damage (including but not limited to damages, costs or missed profits) you suffer in connection with the (software and/or service by) those third parties.
RIGHT TO UPDATE OUR SOFTWARE.
In connection with any modification of the Service, Kimo may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. Kimo will endeavour to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g. security risks), Kimo may require you to install the update to continue accessing the Service. Kimo reserves the right to suspend or terminate your access to the Service, if you do not download and/or install aforesaid updates. In all cases, you agree to permit Kimo to deliver these updates to you (and you to receive them) as part of your use of the Service. We will not be liable to any damage (including but not limited to damages, costs or missed profits) you suffer in connection with the aforementioned.
If you are using the Service as part of an KIMO Business account, your use of the Service is governed by these Terms, except to the extent the Separate Agreement governing the KIMO Business account provides conflicting terms. In such case the Separate Agreement prevails. The Customer who has contracted with KIMO and the Administrator of the KIMO Business account (as "Customer" and "Administrator" are defined in the applicable KIMO Business Agreement) have the responsibility to and agree to share the terms of such Separate Agreement with each individual whose user account is linked to that KIMO Business account ("End User"). It is emphasized again that you cannot use the Service without having accepted these Terms, no matter what sort of subscription you have.
We endeavour to respond to (clear and complete) notices of (alleged) infringement of IP Rights. If you believe that your IP Rights have been violated, please notify our Compliance team via email@example.com. Note that each owner of an IP Right is responsible for protecting their rights and taking any legal or other action they determine to be appropriate to do so, and Kimo does not accept any obligation to take any particular action to enforce or protect any party's IP Rights on their behalf.
Kimo does not own, or claim to own, any of the third-party content on its platform. The videos, articles, MOOCs and podcasts are owned by the original owners and/or third parties ('partners') Kimo works with (e.g. education platforms). Thus, Kimo will make the appropriate references to the content owners. The videos, articles, MOOCs and podcasts made available via partners may be protected by IP Rights. Some content may not be reproduced, used to prepare derivative works, distributed, performed publicly or displayed publicly without the written permission of the copyright holder, except to the extent allowed under the "fair use" provisions of the applicable copyright laws, other limitations on exclusive copyrights in the applicable copyright laws, or comparable provisions of foreign laws. Other content may have re-use permissions attached. Please refer to the original ('partner') website for information that may be applicable to such content.
You represent and agree that the Kimo software will be used solely for your personal educational use with respect to content of websites that you have the lawful right to access, and that the Kimo software will not be used in violation of the restrictions posted on the website where such content was published. Some websites include security measures designed to prevent access, and you agree not to take any steps to defeat any such security measures. We do not necessarily monitor any materials posted, transmitted, or saved via the Kimo software – but may do at our own discretion without prior notice.
When materials are shared and/or adapted via the Kimo software, e.g. by posting, sharing or saving content, you represent that doing so does not infringe any third party's ('partner') IP Rights, privacy rights or legal rights of any kind. If we are notified that any user has posted, shared or saved any information or materials which allegedly do not conform to this Agreement, we may in our sole discretion investigate the allegation and determine whether to take any other actions, including, but not limited to, whether to remove or request the removal of the information or materials posted, shared or saved by a user. We also reserve the right to terminate the account of any user who transfers or saves content in violation of this Agreement. We shall have no liability or responsibility to users for performance or non-performance of such activities. You may be subject to civil and criminal penalties, including without limitation monetary damages, if you violate the terms of this Agreement or infringe any third party's legal rights.
The Service consists of providing a user-centric, personalized learning journey for all users. In order to recommend the right content for individual users, we work with third parties ('partners') for their content. Kimo does not own, or claim to own, any of the third-party content on its platform - and is solely focused on providing intelligent services on top of learning content. The Kimo platform thus contains links to partners. Learning materials shown on the Kimo platform will always contain adequate references to the original owners.
The main partners for Kimo are the providers of MOOCs, such as i) Coursera, ii) EdX, iii) Udemy, iv) Udacity, Datacamp, v) FutureLearn, as well as other content platforms such as vi) YouTube and vii) Medium. Kimo reserves the right to change these partners when required or when this better serves the user.
Consistent with applicable law, Kimo does not knowingly collect personal information from minors without parental consent. If we learn that we have inadvertently obtained information in violation of applicable laws prohibiting collection of information from children without such consent, we will promptly delete it.
WHERE IS MY DATA STORED?
You may deactivate your account with our Service at any time, for any reason (or no reason). However, if you want to deactivate your account you need to take certain specific steps, which are described on our Q&A section of the website. If you subscribe to a Paid Service, our Commercial Terms apply to such termination.
CAN KIMO CLOSE MY ACCOUNT?
Kimo may act to temporarily limit your use of the Service, suspend access to your account, or close your account, with or without notice according to these Terms. We will not be liable to any damage you suffer as a result hereof. Reasons for Kimo suspending or closing your account may include, without limitation: (i) breach or violation of these Terms or any Separate Agreement, (ii) an extended period of inactivity (determined in Kimo's sole discretion), (iii) if you fail to pay in full and in time any fees or other sums due Kimo or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof); (v) unexpected technical or security issues or problems; (vi) if you cease normal trading, become insolvent, apply for suspension of payment, have filed for bankruptcy or have been declared bankrupt, are dissolved and/or wound up, or if a request for your dissolution or winding-up has been filed; (vii) a receiver, liquidator, assignee, custodian, or trustee has been appointed for you; (viii) if your assets have been seized; (ix)you sell or transfer all or a substantial part of your assets; or in case of any merger, consolidation, acquisition of you with a third party; (x) in case of change in the ownership of more than fifty percent (50%) of you voting capital stock; (xi) if you are convicted or accused of any act that may harm Kimo; or (xii) in case of a force majeure (such as a pandemic, war or disaster of nature).
In most cases, in the event we elect to close your account, we will provide at least 30 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on the Service servers (unless we determine that we are legally prohibited from providing such notice or enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account. We will not be liable for any data loss and/or damage suffered by you as a result hereof. It is your own obligation to make back-up copies of your data uploaded into the Service.
Kimo's pledge to protect the privacy of your Content will continue, even after your death or incapacity. If you wish to enable someone to have access to your Content or other data in your account after you are no longer able to provide them access, you need to implement a process for providing your information to them. We will not provide your information, or your Content, to anyone, even next of kin, unless we determine that we are legally obligated to do so. We encourage you to include your Basic Subscriber information, with instructions on how to access your Content, in your will or other estate plans, so that anyone you wish to have access to your account will have the means to do so. Please see our Commercial Terms for information on terminating payment for Paid Services upon death or incapacity.
When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to Kimo through the "Contact Us" or Support interfaces or through any other channel or mechanism (collectively, "Contributions"), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information, do not constitute a trade secret, do not infringe upon third party rights and IP Rights; and that the IP Rights on the Contributions are fully and exclusively owned by you; (ii) Kimo is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) Kimo shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) Kimo may have something similar to the Contributions already under consideration or in development; (v) your Contributions and any and all rights and IP Rights with respect these Contributions automatically become the exclusive (intellectual) property of Kimo – in which context you hereby assign and transfer free of charge any and all IP Rights thereto to Kimo, where necessary in advance, which assignment and transfer is hereby accepted by Kimo, where necessary in advance, without any obligation of Kimo to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from Kimo under any circumstances.
Some advertising or other messaging content we provide will be based upon information provided by third parties, and we shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any advertisements or other messages. Furthermore, your interactions with advertisers found on or through the Service, including, without limitation, all reliance upon advertising, all commercial transactions and legal obligations associated therewith, are solely between you and such advertisers.
DOES KIMO EARN MONEY WHEN I DO A COURSE?
THIRD-PARTY LINKS, CONTENT AND PROGRAMMING.
We may include or recommend third party resources, materials and developers and/or links to third party websites, content and applications as part of, or in connection with, the Service. We may have little or no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites, content or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications; (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications; (iv) you have to establish for yourself whether access to or use of these websites, content and/or applications meet your requirements.
You herewith expressly agree to fully indemnify and hold Kimo, its subsidiaries, affiliates, officers, agents, employees, advertisers, Service Providers and any and all other partners or parties liaised to Kimo harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees, as well as cost orders (e.g. pursuant to article 1019h Dutch Civil Procedure Code) arising from or in any way related to any third party claims relating to your use of any of the Service and/or the Kimo Software, any violation of these Terms or any other actions connected with your use of the Service and/or the Kimo Software (including for any and all actions taken under your account, whether or not you being aware of or having agreed to actions taken under your account). In the event of such claim, we will endeavour to provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.
To the maximum extent permitted by law, the Service Is Available "As Is." YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOU EXPRESSLY UNDERSTAND AND AGREE THAT KIMO, ITS SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS AND/OR ANY ALL PARTY LIAISED TO KIMO SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONTRACTUAL AND NON-CONTRACTUAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, COSTS COMPENSATIONS (INCLUDING BUT NOT LIMITED TO COSTS CONVICTIONS EX ARTICLE 1019 DUTCH CIVIL PROCEDURE CODE) DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF KIMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE, PROMOTIONAL CODES OR XP POINTS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE, OR PROVIDING ANY SERVICES RELATED TO THE OPERATION OF THE SERVICE; (v) KIMO'S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR (BASIC) SUBSCRIBER INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED OR OTHER THIRD-PARTY PRODUCT OR SERVICE; (ix) THE TERMINATION OR SUSPENSION OF YOUR ACCOUNT IN ACCORDANCE WITH THE PROVISIONS OF THESE TERMS OF SERVICE; (x) RECKLESS ACTS OR NEGLIGENCE AT YOUR END OR (xi) ANY OTHER MATTER, IN THE BROADEST SENSE POSSIBLE, RELATING TO THE SERVICE.
YOU ARE OBLIGED TO TAKE ALL MEASURES NECESSARY IN ORDER TO LIMIT ANY DAMAGE.
EXCLUSIONS AND LIMITATIONS.
NOTHING IN THESE TERMS OF SERVICE (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) 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.
This is another reason why it is important for you to make sure that your Basic Subscriber Information is accurate, complete and up to date. We may provide you with notices by email (to the email address associated with your account), regular mail or postings on the website(s) related to the affected Service. It is your own responsibility that you contact details in the Basic Subscriber Information are correct and up to date.
Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to Kimo must be delivered by email to firstname.lastname@example.org. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address:
Kimo B.V. Haparandadam 2E3 1013 AK Amsterdam
The Netherlands Attention: Legal Notice
These Terms and the relationship between you and Kimo (including any dispute arising from this, including disputes on the existence of a relationship/agreement and/or applicability of these Terms) shall be governed exclusively by the laws of The Netherlands, with the exclusion of the conflict of laws rules.
Any and all disputes (including any dispute arising from this, including disputes on the existence of a relationship/agreement and/or applicability of these Terms) arising from these Terms shall be exclusively resolved by the competent court of Amsterdam, The Netherlands.
If any provision of these Terms is found by a court of a competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
LET US KNOW ABOUT YOUR COMPLAINT.
We want to know if you have a problem so we encourage you to contact our Customer Support team (email@example.com) if you have any concerns with respect to the operation of the Service or any Kimo Software, as we want to ensure that you have an excellent experience.
INITIATING A FORMAL CLAIM.
If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved by the processes set forth in these Terms. Kimo provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against Kimo in any other manner, you shall be in violation of these Terms and you agree that Kimo shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse Kimo for its reasonable costs incurred in defending against such improperly initiated claim. You agree that prior to initiating any formal proceedings against Kimo, you will send us a notice to our attorneys at firstname.lastname@example.org and state that you are providing a "Notice of Dispute." Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute in good faith through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms.
A couple of final, but important, points. First, these Terms constitute the entire agreement between you and Kimo and govern your use of the Service, except for, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior (oral as well as written) agreements, arrangements or earlier versions of these Terms between you and Kimo for the use of the Service as of the date indicated at the top of these Terms. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party's terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that each affiliate of Kimo shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third-party beneficiary to these Terms.
After termination of our agreement, the provisions set out in these Terms on (i) indemnifications and the limitation and exclusion of liability; (ii) any and all warranties and acknowledgements given by you; (iii) the licenses granted by you to us; (iv) the transfer of IP Rights from you to us; (v) competent court, applicable law and dispute resolutions; and (vi) section headings shall survive.
Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.
We will be pleased to provide you with a (physical) copy of the Terms. Please send your request (via email) to (email@example.com) or (via regular mail) to Kimo B.V., Haparandadam 2E3, 1013 AK, Amsterdam, The Netherlands.