Kozist Terms of Service
Last Updated: February 11, 2021
Welcome! Kozist, Inc. (“Kozist”, “we”, “our” or “us”) operates, publishes and offers a variety of online content. These Terms of Service (“Terms”) apply to your use of our websites, including, but not limited to, kozist.com and kozistapp.com, along with the features, functionalities, applications, browser extensions and other services available through our websites (collectively, our “Websites”), the Kozist App, a mobile application available through the Apple App Store and the Google Play Store, that is provided by Disciple Media Limited (“Disciple”), and any of the services offered by Kozist through the Websites or the Kozist App (collectively, the “Services”). The Websites, Kozist App and Services are collectively referred to in these Terms as the “Platform”.
Your use of the Platform, in whole or part, including, but not limited to, setting up a Kozist App account, constitutes your binding acceptance of these Terms, including any modifications made to these Terms. Read these Terms carefully and completely as they set forth your rights and obligations with respect to your use of our Platform. Your rights to use our Platform are limited by applicable federal, state and local laws and regulations.
IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU ARE NOT AUTHORIZED TO USE OUR PLATFORM IN ANY WAY.
REVIEW THESE TERMS CAREFULLY. THESE TERMS REQUIRE DISPUTES TO BE RESOLVED ON AN INDIVIDUAL BASIS, RATHER THAN CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. PLATFORM DOES NOT PROVIDE MENTAL HEALTH OR MEDICAL ADVICE
Our Platform is designed for informational and entertainment purposes only. THE PLATFORM, ITS CONTENT AND ITS SERVICES DO NOT CONSTITUTE MENTAL HEALTH OR MEDIAL ADVICE, DIAGNOSIS OR TREATMENT. Accordingly, the information available through the Platform (or in any materials downloaded or purchased from or through the Platform) is not a substitute for professional mental health or medical advice, diagnosis or treatment.
IF YOU ARE IN NEED OF MENTAL HEALTH OR MEDICAL ASSISTANCE, NOW OR IN THE FUTURE, CONTACT A MENTAL HEALTH OR MEDICAL PROVIDER. IF YOU ARE HAVING A MENTAL HEALTH OR MEDICAL EMERGENCY CALL 911. The Platform is not actively monitored.
Please do not rely on any portion of our Platform to make mental health or medical decisions. These decisions should be made in conjunction with individual mental health and medical providers. Before taking any action based on any of the information on the Platform, please consult your mental health or medical provider. Never disregard professional mental health or medical advice or delay in seeking treatment because of something you have seen on the Platform.
2. ACCEPTANCE AND APPLICABILITY OF TERMS
2.1 Acceptance of Terms. By using the Platform, you are agreeing to comply with these Terms. If you fail to comply with these Terms, we may terminate your ability to use the Platform. Without limiting the foregoing, the Platform is intended for adults 18 years of age or older. By accessing the Platform, you represent to us that: (1) you are 18 years of age or older; (2) you are legally able to enter into contracts; and (3) you are not a person barred from receiving or using the Platform under federal, state, local or other laws.
2.2 Changes to Terms. We may update or modify these Terms from time-to-time without providing notice to you by posting a revised version of these Terms on our website. You can review the most current version of these Terms at any time by clicking on the “Terms and Conditions” link on our website. By using the Platform after any modification of these Terms, you agree to be bound by such modification(s).
2.3 Our Rights. We have the right, but not the obligation, to take any of the following actions in our sole discretion without providing any prior notice to you and without any liability to you or any third party:
a. change or terminate all or any part of the Platform;
b. restrict or terminate your access to all or any part of the Platform;
c. refuse, move or remove any content that is available on the Platform; or
d. deny access to the Platform to anyone at any time in our sole and absolute discretion.
2.4 Disciple’s Rights. As between you and Disciple, Disciple has the right, but not the obligation, to take any of the following actions in their sole discretion without providing any prior notice to you and without any liability to you or any third party:
a. change or terminate all or any part of the Kozist App;
b. restrict or terminate your access to all or any part of the Kozist App;
c. refuse, move or remove any content that is available on the Kozist App; or
d. deny access to the Kozist App to anyone at any time in their sole and absolute discretion.
2.5 Conflicts.In the event of any conflict between these Terms and any other terms and conditions applicable to the Platform made available to you or published by Kozist, these Terms shall control.
3. USE OF THE PLATFORM
3.1 Acceptable Use. Your use of the Platform must comply with the following (“Acceptable Use Restrictions”):
a. You are only allowed to use the Platform for its intended purposes, as determined by us, or Disciple where applicable.
b. Without limitation, you are not allowed to use the Platform to:
¨ publish, post, distribute or disseminate any content with is or could reasonably be viewed as:
à hate speech, obscene, harassing, threatening, pornographic, abusive or defamatory to an individual or group of individuals on the basis of religious belief, race, gender, age, disability or otherwise;
à inciting violence, or containing nudity or graphic or gratuitous violence;
à an unauthorized commercial communication of any kind (including, without limitation, spam);
à fraudulent, inaccurate or misleading, or is otherwise objectionable content of any kind;
à infringing or violating someone else’s rights or otherwise violates the law; or
à identifying any person without their consent or disclosing anyone else’s personal contact details or invading their privacy.
¨ violate any laws;
¨ transmit or upload any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature; or
¨ engage in commercial activity.
c. You are also prohibited from:
¨ reformatting or framing any portion of the Platform;
¨ using any device, software or procedure that interferes with, or attempts to interfere with, the normal operation of the Platform;
¨ taking any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our information technology infrastructure;
¨ modifying, adapting, translating or reverse engineering any portion of the Platform;
¨ disrupting or otherwise interfering with the Platform or the networks or servers we use;
¨ impersonating any person or entity or misrepresenting your connection or affiliate with a person or entity;
¨ collecting or storing, or attempting to collect or store, personal information about other uses of the Platform; or
¨ engaging in any activity that is illegal under federal, state, local or other laws.
3.2 Access to the Platform. Access to the Platform requires access to the Internet. You are responsible for providing all equipment necessary to establish a connection to the Internet, access to the Internet and any telephone, wireless or other connection and service fees associated with such access. Using the Platform may allow you to receive Content on your mobile phone or wireless device. The manner in which that Content is delivered to your phone or device may cause you to incur extra data, text messaging or other charges from your wireless carrier, which are your sole responsibility.
3.3 Compliance with Applicable Laws. You certify that you will comply with all applicable laws (e.g., local, state, federal and other laws) when using the Platform or any Content as permitted by, and in accordance with, these Terms. Without limiting the foregoing, by using the Platform, you represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties. If you access or use the Platform outside the United States, you are solely responsible for ensuring that your access and use of the Platform in such country, territory or jurisdiction does not violate any applicable laws. We reserve the right, but have no obligation, to, in our sole discretion, monitor where our Platform is accessed from, and the right, but not the obligation, to block or otherwise restrict access to our Platform, in whole or in part, from any geographic location.
4. OWNERSHIP OF THE PLATFORM AND CONTENT.
4.1 Ownership of Software. All right, title and interest in and to the Platform, including, but not limited to, all of the software and code that comprise and operate the Platform (collectively, the “Software”), are owned, as applicable, by Kozist, Disciple (with respect to the Kozist App) or other third parties who have licensed components of the Platform to us. The Platform is protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws.
4.2 Ownership of Content. All right, title and interest in and to all of the text, photographs, illustrations, images, graphics, audio, video, URLs, advertising copy and other materials published by Kozist through the Platform (collectively, the “Content”) are owned by Kozist or other third parties who have licensed their content to us. The Content is protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, the entire Content is a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement and enhancement of the Content.
4.3 Limited License. Subject to your acceptance of, and compliance with, these Terms and your payment of any applicable fees or other charges, depending on how you use or interact with the Platform:
a. We hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, right to access and use the Websites and Services in a manner that is consistent with these Terms and the intended purpose(s) of the Websites and Services (the “Kozist License”); and
b. Disciple hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, right to access and use the Kozist App in a manner that is consistent with these Terms and the intended purpose(s) of the Kozist App (the “Disciple License”).
4.4 Use Restrictions. You obtain no rights to the Platform except to use it in accordance with these Terms and as set forth, as applicable, under the Kozist License and/or the Disciple License (collectively, the “Licenses”). Without limiting the generality of the foregoing, you shall not: (1) use any data mining, robots or other automatic or manual device, software, program, code, algorithm or methodology to access, copy or monitor any portion of the Platform or in any way reproduce or circumvent the navigational structure or presentation of the Platform, or obtain, or attempt to obtain, any materials or information through any means not purposely made available by us, or where applicable, Disciple, through the Platform and we, or where applicable, Disciple, reserve the right to take measures to prevent any such activity; (2) reproduce copy, duplicate, redistribute, publish, reverse engineer, decompile, disassemble, modify, translate or make any attempt to create derivative works of the Platform (in whole or in part); (3) sell, assign, sublicense, transfer, distribute, lease or grant a security interest in the Platform (in whole or in part); (4) make the Platform (in whole or in part) available to any third party through a computer network or otherwise, including, but not limited to, distributing or making use of the Platform (in whole or in part) over a network where it could be used by multiple devices at the same time; (5) export the Platform (in whole or in part) to any country in violation of any laws, including, but not limited to, any United States export laws (whether by physical or electronic means); (6) use the Platform (in whole or in part) in a manner prohibited by applicable laws, regulations and/or these Terms; or (7) use the Platform in violation of the Acceptable Use Restrictions (collectively, the “Prohibited Activities”). You will be solely liable for any damages, costs or expenses arising out of or in connection with your commission of any Prohibited Activities. You shall notify us immediately upon becoming aware of the commission by any person of the Prohibited Activities and shall provide us with reasonable assistance with any investigations we may conduct in light of the information provided by you in this respect.
4.5 Marks.The Kozist names and logos, all product and service names, all graphics, all button icons and all trademarks, service marks and logos appearing within the Platform, unless otherwise noted, are trademarks (whether registered or not), service marks and/or trade dress of Kozist (collectively, “Our Marks”) or, with respect to certain portions of the Kozist App of Disciple (collectively, “Disciple Marks”). All other trademarks, product names, company names, logos, service marks and/or trade dress (collectively, “Marks”) mentioned, displayed, cited or otherwise indicated within the Platform are the property of their respective owners. You are not authorized to display or use Our Marks in any manner without our prior written permission. You are not authorized to display or use the Disciple Marks or the Marks of any other third party that appear within the Platform without the prior written permission of Disciple or other applicable third party.
5. ACCOUNTS
5.1 Registration.You may be required to open an account or register with Kozist in order to use some of the features on the Platform, including, but not limited to, the Kozist App. If you open an account or register with Kozist, you must provide true, accurate, current and complete information about yourself as may be prompted by any registration form. If any information you previously provided Kozist changes, you must promptly update the relevant information.
5.2 Account Security and Responsibility. You are responsible for maintaining the confidentiality of your password and account and are fully responsible for all activities that occur under your password and account. You agree to: (1) notify Kozist immediately of any unauthorized use of your password or account or any breach of security, and (2) ensure that you fully exit from your account at the end of each session. You must set up your account in your own name. You further agree not to use anyone else's password on the Platform. Kozist and, where applicable, Disciple, cannot and will not be liable for any loss or damage arising from your failure to comply with this provision or any of these Terms. If Kozist suspends or terminates your account under these Terms, you acknowledge that all information and content associated with such account will no longer be available to you.
5.3 Additional Information Sharing. We may provide you with the option to share your experiences with others through your account and the Platform. If you open an account, you understand that Kozist will collect and maintain information related to your use of the Platform. Kozist connects, though may not always display, that information to your account in order to provide the Services to you.
5.4 Cancellation.You may close your account at any time by contacting help@kozist.com and following the instructions provided by Kozist. Please note, if you cancel your subscription for the Kozist App, you are still entitled to access the Kozist App for the remainder of the month until the due date of your auto-renewal unless you request a refund. You can learn more about requesting a refund by visiting: (1) https://support.apple.com/en-gb/HT204084 for the Apple App Store; or (2) https://support.google.com/googleplay/answer/2479637?hl=en-GB for the Google Play Store.
6. YOUR CONTENT, STATEMENTS AND PERSONAL DATA
6.1 User Content. The Platform may provide you with the ability to add, create, upload, submit, distribute, post or share content on or through the Platform, including, but not limited to, website links, opinions, information, photos, profiles, videos and audio clips (collectively, “User Content”). By providing any User Content on the Platform, you expressly grant, and represent and warrant that you have the right to grant, to Kozist a non-exclusive, irrevocable, worldwide, transferable, royalty-free, perpetual license to publicly display, publicly perform, reproduce, distribute, create derivative works of, and sublicense your User Content in any manner or through any media now known or later developed without any payment or obligation to you. Without limiting the foregoing, any User Content you provide on the Platform may be viewable by any other users of the Platform (whether registered or unregistered). Kozist, and where applicable, Disciple, have the right, but not the duty, to pre-screen, edit, refuse, move or remove any User Content posted to the Platform.
6.2 Private Messages. The Platform may provide you with the ability to send private messages to other users of the App (“Private Messages”). Private Messages are not considered User Content and Kozist will not intentionally make any such Private Messages available to any party other than the intended recipient. However, you should remain mindful that there is an inherent risk in the use of the internet. Private Messages may be intercepted without our knowledge or consent, collected illegally and/or forwarded by recipients to others. We cannot guarantee the security of any information, including your Private Messages, that you disclose online, and you do so at your own risk.
6.3 Abusive and Offensive Language. Abusive or offensive language will not be tolerated on our Platform, social media sites or with our personnel. You are not entitled to make untrue, malicious and/or damaging comments with regard to our operations in any media or forum.
6.4 Personal Data. By using the Platform, you are consenting to the collection, use, disclosure, transfer and sharing of your location, nonpublic personal and non-personal information by Kozist, including, but not limited to, sharing such information with companies other than Kozist as described in our Privacy Policy (available at https://kozist.com/privacy-policy or through the Kozist App). Our Privacy Policy may be updated from time to time, so please review it regularly. If you do not accept the terms of our Privacy Policy, please discontinue use of the applicable portions of the Platform.
6.5 Feedback.By submitting ideas, suggestions, documents, proposals, products and/or technologies (“Ideas” or “Innovations”) to us in any way, you acknowledge and agree that: (1) your Ideas and/or Innovations do not contain confidential or proprietary information; (2) we are not under any obligation of confidentiality, express or implied, with respect to the Ideas and Innovations; (3) we shall be entitled to disclose (or choose not to disclose) such Ideas and Innovations for any purpose and in any way; (4) we may have something similar to the Ideas and Innovations already under consideration or in development; (5) your Ideas and Innovations which are not subject to a patent, automatically become our property without any obligation to you; and (6) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances.
7. TERMINATION
7.1 Right to Terminate. In addition to, and not in lieu of, any of our other rights set forth in these Terms, we, and where applicable, Disciple, reserve the right, with or without notice and in our sole discretion, to terminate these Terms, your account and/or your ability to access the Platform for any reason, including, without limitation, for lack of use or if we, or where applicable, Disciple, believe that you have violated or acted inconsistently with the letter or spirit of these Terms, or in the case of any activity by you that may harm Kozist, Disciple or other users, including, but not limited to, fraud, abuse of promotions or privileges or misuse of the Platform. You agree that we will not be liable to you or any third party for any such termination.
7.2 Effects of Termination.
a. Websites and Services. If we exercise our termination rights available under these Terms, the Kozist License shall immediately terminate, and you must discontinue all use of the Websites affected by such termination.
b. Kozist App. If we, or Disciple, exercise our or their termination rights available under these Terms with respect to the Kozist App:
¨ for cause, including, but not limited to, if you violation of these Terms or if we discontinue making the Kozist App available, the Disciple License shall immediately terminate and you must discontinue all use of the Kozist App, in which case you may be eligible for a refund through the applicable app store; or
¨ without cause, the Disciple License shall terminate on the earlier of the due date of your auto-renewal or your refund request.
7.3 Fraudulent Activity. If we suspect that you are engaging in any fraudulent, abusive or illegal activity, we may refer such matter to appropriate law enforcement authorities.
7.4 Survival.The provisions in these Terms that, by their sense and content, are intended to survive termination, shall survive the termination of these Terms for any reason.
8. USER AND THIRD PARTY CONTENT
8.1 User Content. Reliance on User Content is at your own risk. We do not participate in any way in the development of any User Content. You acknowledge and agree that we and other third parties, including, without limitation, Disciple, are not responsible or liable for, nor do we endorse, any User Content that appears on the Platform.
8.2 Links to Third Party Websites. Our Platform may include links to other websites (e.g., sponsors’ and/or advertisers’ websites) or services solely as a convenience to you. You acknowledge and agree that we are not responsible for the availability of such external sites or resources and that we do not endorse and are not responsible or liable for any such linked sites or other information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, we make no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Your access to and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.
9. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
9.1 Notice of Infringement. If you are a copyright owner or an agent thereof and believe that any user submission or other content on the Platform infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
c. 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 us to locate the material;
d. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
e. A statement that you have 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
f. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
9.2 Address for Notices. DMCA claims may be sent to the following addresses:
By email to: kate@kozist.com
By mail to: Kozist Inc.
Attention: Katherine Smaller
6848 Fallen Leaf Trail
Fennville, MI 49408
NOTE: YOU ACKNOWLEDGE AND AGREE THAT IF YOU FAIL TO COMPLY WITH ALL OF THE REQUIREMENTS OF THIS SECTION 9, YOUR DMCA CLAIM MAY NOT BE VALID.
10. YOUR LIABILITY
10.1 Agreement to Indemnify. YOU AGREE THAT YOU WILL ONLY USE THE PLATFORM IN ACCORDANCE WITH THESE TERMS AND ANY OTHER APPLICABLE TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO AND WHERE APPLICABLE, THE TERMS AND CONDITIONS IMPOSED BY GOOGLE WITH RESPECT TO THE GOOGLE PLAY STORE AND APPLE WITH RESPECT TO THE APPLE APP STORE (COLLECTIVELY, THE “GOVERNING TERMS”). YOU WILL COMPENSATE US IN FULL FOR ANY LOSSES OR COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES) WHICH WE OR ANY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, DISCIPLE, INCUR ARISING FROM ANY BREACH BY YOU OF THE GOVERNING TERMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD US AND, SOLELY WITH RESPECT TO THE KOZIST APP, DISCIPLE, AND OUR AND THEIR RESPECTIVE SUBSIDIARIES AND AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICER, EMPLOYEES, AGENTS AND OTHER PARTNERS (THE “RELEASED PARTIES”) HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY’S FEES, MADE BY ANY THIRD PARTY DUE OR ARISING OUT OF YOUR USE OF THE PLATFORM (OR APPLICABLE PORTION THEREOF), YOUR CONNECTION TO THE PLATFORM (OR APPLICABLE PORTION THEREOF), YOUR VIOLATION OF ANY OF THE GOVERNING TERMS OR YOUR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY.
10.2 Additional Remedies. The Released Parties reserve the right to seek all remedies available at law and in equity for violations of the applicable Governing Terms, including the right to block access from a particular Internet address to the Platform (or applicable portion thereof) or report misuses to law enforcement.
11. DISCLAIMERS
11.1 Disclaimer of all Warranties.
a. THE PLATFORM IS PROVIDE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE, AND WHERE APPLICABLE, DISCIPLE, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE PLATFORM (INCLUDING, BUT NOT LIMITED TO, ANY SOFTWARE COMPRISING ANY PORTION OF THE PLATFORM), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE PLATFORM WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL SOFTWARE OR HARDWARE.
b. YOU HEREBY ACKNOWLEDGE THAT THE PLATFORM MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE PLATFORM AND/OR TELECOMMUNICATIONS INFRASTRUCTURE OR DISRUPTION, AND THEREFORE WE, AND WHERE APPLICABLE, DISCIPLE, EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY OR PERFORMANCE OF THE PLATFORM CAUSED BY SUCH FACTORS.
c. WE, AND WHERE APPLICABLE, DISCIPLE, DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER DATA, INCLUDING WITHOUT LIMITATION, ANY USER CONTENT OR PRIVATE MESSAGES.
d. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
11.2 Use of Platform at Your Sole Risk. YOUR ACCESS TO THE PLATFORM, DOWNLOAD OF ANY SOFTWARE RELATING TO THE PLATFORM AND USE OF ANY INFORMATION WE MAY PROVIDE IN CONNECTION WITH YOUR USE OF THE PLATFORM IS AT YOUR SOLE OPTION, DISCRETION AND RISK. WE, AND WHERE APPLICABLE, DISCIPLE, SHALL NOT BE LIABLE FOR ANY MALFUNCTIONS OF THE COMPUTER PROGRAMS RELATING TO THE PLATFORM, BUGS OR VIRUSES RESULTING IN LOST DATA OR ANY OTHER DAMAGE TO YOUR COMPUTER EQUIPMENT, MOBILE PHONE OR MOBILE DEVICE OR SOFTWARE. FURTHERMORE, WE SHALL NOT BE LIABLE FOR ANY ATTEMPTS BY YOU TO USE THE PLATFORM BY METHODS, MEANS OR WAYS NOT INTENDED BY US, AND WHERE APPLICABLE, DISCIPLE. WE, AND WHERE APPLICABLE, DISCIPLE, ARE NOT REQUIRED TO PROVIDE REDUNDANT OR BACKUP NETWORKS AND/OR SYSTEMS.
11.3 No Creation of Warranty. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN OBTAINED BY YOU FROM ANY OF THE RELEASED PARTIES THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11.4 Third Party Statements. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR STATEMENTS, ADVICE AND OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED KOZIST SPOKESPERSONS. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR ANY STATEMENTS, ADVICE OR OPINIONS CONTAINED PROVIDED BY ANY THIRD PARTIES, AND SUCH STATEMENTS, ADVICE AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE AND OPINIONS OF KOZIST.
12. LIMITATION OF LIABILITY
12.1 Maximum Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THESE TERMS, OUR, AND WHERE APPLICABLE, DISCIPLE’S ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO THE USE OF THE PLATFORM SHALL BE THE AMOUNT OF $100.
12.2 No Liability for Incidental Damages. IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE PLATFORM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE PLATFORM.
12.3 Applicability of Limitations. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13. DISPUTE RESOLUTION
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
13.1 Waiver of Rights. YOU AGREE THAT BY USING THE PLATFORM YOU ARE WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AS NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR COLLECTIVE PROCEEDING.
13.2 Venue for Litigation. ANY CAUSE OF ACTION OR CLAIM UNDER THESE TERMS MUST BE BROUGHT EXCLUSIVELY IN THE STATE COURTS LOCATED WITHIN ALLEGAN COUNTY, MICHIGAN OR THE UNITED STATE DISTRICT COURTS FOR THE WESTERN DISTRICT OF MICHIGAN, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES.
13.3 Time to Bring a Claim. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST THE RELEASED PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO THE GOVERNING TERMS, YOUR USE OF THE PLATFORM OR YOUR DEALINGS WITH THE RELEASED PARTIES MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2) YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIMS IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
13.4 Prevailing Party. IN ANY LITIGATION BETWEEN YOU AND THE RELEASED PARTIES IN CONNECTION WITH ANY OF THE GOVERNING TERMS, YOUR USE OF THE PLATFORM, OR YOUR DEALINGS WITH THE RELEASED PARTIES, THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES AND COSTS IN SUCH ARBITRATION FROM THE OTHER PARTY.
14. ADDITIONAL TERMS FOR KOZIST APP DISTRIBUTED THROUGH THE APPLE APP STORE
14.1 Acknowledgement.The Kozist App is available through the Apple App Store (“Kozist App Apple Version”). You and Kozist each acknowledge that these Terms and any other terms and conditions imposed by Kozist with respect to the Kozist App Apple Version and any other agreements entered into between you and Kozist in connection with the Kozist App Apple Version (collectively, the “Kozist App Apple Agreements”) are between you and Kozist only, and not with Apple, and that Kozist, not Apple, is solely responsible for the Kozist App Apple Version and the content thereof. In the event the Kozist App Apple Agreements provide usage rules for the Kozist App Apple Version that are in conflict with the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions shall control with respect to the Kozist App Apple Version.
14.2 Scope of License. In addition to the other terms set forth in the Kozist App Apple Agreements, the license granted to You for the Kozist App Apple Version is solely for use by you on any Apple-branded product that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.
14.3 Maintenance and Support. Kozist is solely responsible for providing any maintenance and support services with respect to the Kozist App Apple Version, as specified in the Kozist App Apple Agreements or as required under applicable law. You and Kozist acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Kozist App Apple Version.
14.4 Warranty.Kozist is solely responsible for any product warranties, whether express or implied by law, to the extent not disclaimed in the Kozist Apple App Agreements. In the event of any failure of the Kozist App Apple Version to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for the Kozist App Apple Version (if any) to you. Further, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Kozist App Apple Version, and, subject to the limitations of liability set forth in the Kozist App Apple Agreements, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform with any warranty will be Kiest’s sole responsibility.
14.5 Product Claims. You and Kozist acknowledge that Kozist, not Apple, is responsible for addressing any claims that you or any third party have relating to the Kozist App Apple Version or your possession and/or use of the Kozist App Apple Version, including, but not limited to: (1) product liability claims; (2) any claim that the Kozist App Apple Version fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy or similar legislation.
14.6 Intellectual Property Rights. You and Kozist acknowledge that, in the event of any third party claim that the Kozist App Apple Version or your possession and use of the Kozist App Apples Version infringes that third party’s intellectual property rights, subject to the limitations of liability and indemnification obligations set forth in the Kozist App Apple Agreements, Kozist, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
14.7 Third Party Terms. You must comply with applicable third party terms when using the Kozist App Apple Version.
14.8 Third Party Beneficiary. You and Kozist acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries to these Terms as applicable to the Kozist App Apple Version, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms (as applicable) against you as a third party beneficiary thereof.
15. ADDITIONAL TERMS
15.1 Governing Law. These Terms will be governed by the laws of the State of Michigan, without giving effect to any principles of conflicts of laws.
15.2 Severability. If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the applicable Agreements shall continue in effect.
15.3 Waivers. Our failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provisions.
15.4 Admissibility of Terms. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
15.5 Assignment. We reserve the right to transfer, assign, sublicense or pledge any or all of these Terms, in whole or in part, to any person without notice, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense or otherwise transfer in any manner whatsoever any of your rights or obligations under these Terms.
15.6 Headings. The section headings and sub-headings contained in these Terms are for convenience only and have no legal or contractual effect.
15.7 Support.If you have any questions or concerns about the Platform or these Terms, please email us at help@kozist.com.
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