This Kogentix Website Terms of Service (this “Agreement”) constitutes a legally binding contract between Kogentix, Inc., a Delaware corporation with an address of 150 N. Martingale Road, Suite 888, Schaumburg, IL 60173 (“Kogentix,” “Company,” “we,” “us,” “our”) and you with respect to your use of our websites, including www.kogentix.com (collectively, the “Website”).
It is important that you carefully read and understand the terms and conditions of this Agreement. BY accessing or using the website, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE WEBSITE.
If you access or use the Website on behalf of a company, principal, or other entity, you represent that you have authority to bind such entity and its affiliates to this Agreement and that it is fully binding on them. In such case, the term “you,” as used in this Agreement, will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Website. Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.
Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and Kogentix have against each other are resolved (see Section 10 (Limitation of Liability), Section 14 (Dispute Resolution), and Section 15 (Choice of Law and Forum) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 14(D). Unless you opt-out: (A) you will only be permitted to pursue claims against Kogentix on an individual basis, not as part of any class or representative action or proceeding and (B) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Changes to this Agreement
We reserve the right to, at any time, with or without cause:
We will notify you of any material changes to the terms and conditions of this Agreement by posting a notice of the changes to www.kogentix.com/terms. You should check this website periodically to keep yourself informed of any changes.
2. Use of the Website
We reserve the right to decline to provide the Website to any person for any or no reason.
When you use the Website, you may have the opportunity to provide information to Kogentix either by filling out forms or sending messages to us via the Website. If and when you provide such information to Kogentix, you agree to provide accurate, current, and complete information as prompted. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your use of the Website. By providing Kogentix with your email address or other contact information, you consent to our use of this information to send you Website-related notices and other administrative notices, including any notices required by law.
You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.
3. Rules Governing Your Use of the Website
You may not use the Website, or assist or encourage any other party, to engage in any of the following prohibited activities:
Improper use of the Website may result in termination of your access to and use of the Website and/or civil or criminal liabilities. You agree to use the Website in accordance with all applicable laws.
4. Intellectual Property
A. Your Rights. Subject to the terms and conditions of this Agreement (including any restrictions on any applicable authorization or order form), you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Website solely for your own internal use. Kogentix reserves all rights not expressly granted herein in the Website. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel or otherwise.
B. Kogentix Rights.
C. Proprietary Rights. The Website is owned and operated by Kogentix, and the Website (and any intellectual property and other rights relating thereto) is and will remain the property of Kogentix and its licensors and suppliers. The Website is protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. The Website may be used solely (a) to the extent permitted in this Agreement or (b) as expressly authorized in writing by authorized representatives of Kogentix or, if so indicated in writing by Kogentix, by its licensors or suppliers. Use of the Website for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Website. The trademarks, logos and service marks displayed on the Website (collectively, the “Kogentix Trademarks”) are the registered and unregistered trademarks of Kogentix, Kogentix’s licensors and suppliers and/or others. Nothing contained in this Agreement or the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Kogentix Trademark(s) without the express written permission of Kogentix, Kogentix’s licensors or suppliers or the third-party owner of any such Kogentix Trademark. Subject to the rights granted to Kogentix in this Agreement, as between you and Kogentix, you retain all right, title and interest in and to your User Content.
5. Third-Party Links
6. No Use by Children Under 13
You hereby affirm that you are over the age of thirteen (13), as the Website is not intended for children under 13. If you are under 13 years of age, then you may not use the Website. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
8. Term & Termination
This Agreement is effective from the date on which you first access the Website or submit any User Content to Kogentix, whichever is earlier, and shall remain effective until terminated in accordance with its terms. Kogentix may immediately terminate this Agreement, and/or your access to and use of the Website, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. Kogentix may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Website shall immediately cease, and you shall cease all use of the Website. Upon termination or expiration of this Agreement for any reason, Sections 1, 2, 3, 4(B), 4(C), 4(D), 4(E), and 5–17 will survive.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website, or any part or portion thereof. Nothing in this Agreement shall be construed to obligate Kogentix to maintain and support the Website, or any part or portion thereof, during the term of this Agreement.
THE WEBSITE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE WEBSITE IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE WEBSITE, OR YOUR USE OF THE WEBSITE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE WEBSITE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE WEBSITE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE WEBSITE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEBSITE, AND YOUR RELIANCE THEREON.
10. Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER THE COMPANY NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE WEBSITE, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. THE COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED FIFTY DOLLARS ($50). NEITHER THE COMPANY NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES, OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF ANY INACCURACY, INCOMPLETENESS, OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS, OR SUBMISSIONS PROVIDED OR POSTED ON THE WEBSITE BY THIRD PARTIES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You (and also any third party on whose behalf you access the Website) agree to fully indemnify, defend (at Kogentix’s request), and hold Kogentix, our licensors, suppliers, agents, successors, and assigns, and our and their directors, officers, employees, consultants and other representatives (collectively, the “Kogentix Parties”) harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from: (a) your actual or alleged breach of this Agreement; (b) any allegation that any User Content or other materials you submit to us or transmit to the Website infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret or other intellectual property or other rights of any third party, including any rights of privacy; (c) your activities in connection with the Website or other websites to which the Website is linked; (d) your negligence or willful misconduct; (e) your use of the results, content, data, or information provided via the Website; (f) any service or product offered by you in connection with or related to your use of the Website; and/or (g) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities.
12. Jurisdictional Issues
Kogentix makes no representation that the Website operates (or is legally permitted to operate) in all geographic areas or that the Website is appropriate or available for use in other locations. Accessing the Website from territories where the Website or any content or functionality of the Website or portion thereof is illegal is expressly prohibited. If you choose to access the Website, you agree and acknowledge that you do so on your own initiative and at your own risk, and that you are solely responsible for compliance with all applicable laws. The Website is operated from the United States. If you are located outside of the United States and choose to use the Website or provide your User Content to us, your User Content will be transferred, processed, and stored in the United States. We may also transmit your information to service providers in other jurisdictions, such as India. U.S. and Indian privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement followed by your submission of your User Content in connection with the Website represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States or in India, you should not use the Website.
13. Notice for California Users
Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Websites of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
14. Dispute Resolution
A. Arbitration. The parties shall use their best efforts to settle any dispute, claim, question or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to Kogentix’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Website shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its rules and procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Kogentix will pay the additional cost. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Kogentix is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.
The parties understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
B. Class-Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
C. Exception—Litigation of Small-Claims-Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
D. Thirty-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: [insert address]. The notice must be sent within 30 days of registering to use the Website; otherwise, you shall be bound to arbitrate disputes in accordance with this Agreement. If you opt out of these arbitration provisions, Kogentix also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, Kogentix may terminate your use of the Website.
E. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with Kogentix and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
15. Choice of Law and Forum
This Agreement and your relationship with Kogentix Parties shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 14, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Santa Clara County, California and you consent to the exclusive jurisdiction of the federal or state courts located in Santa Clara County, California.
16. U.S. Government Restricted Rights
The Website shall be deemed “commercial computer software” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Website by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived or modified except by a written instrument signed by Kogentix. If any employee of Kogentix offers to modify this Agreement, he or she is not acting as an agent for Kogentix or speaking on Kogentix’s behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of Kogentix or anyone else purporting to act on Kogentix’s behalf. This Agreement is between you and Kogentix; there are no third-party beneficiaries. You are responsible for compliance with all applicable laws and regulations, including, but not limited to, United States export and import regulations. You may not use the Website if you are a resident of a country embargoed by the United States or are a foreign person or entity blocked or denied by the United States government. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation or remedy hereunder is assignable, transferable, delegable or sublicensable by you except with Kogentix’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. Kogentix may assign, transfer or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served on Kogentix at [insert email address] (in the case of Kogentix) or to the e-mail address you have designated on your Account (in your case). Notice to you shall be deemed given 24 hours after the e‑mail is sent. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
The Website is Operated By
Effective April 1, 2017