LAST UPDATED March 18th, 2013
IT IS IMPORTANT THAT YOU READ AND UNDERSTAND THE FOLLOWING TERMS AND CONDITIONS. BY REGISTERING WITH KIOSKED SERVICE AND/OR BY CLICKING AN “I ACCEPT” OR SIMILAR BUTTON AND/OR BY INSTALLING, ACCESSING OR USING KIOSKED SERVICE (INCLUDING ANY SOFTWARE OR APPLICATION FORMING PART OF KIOSKED SERVICE) YOU CONFIRM THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS SET OUT BELOW AND THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT. If you do not accept or understand this Agreement, please do not use, install, access or register with Kiosked Service (including any software or application forming part of Kiosked Service). If your agreement to this Agreement is required in connection with or after the installation process of any software or application forming part of Kiosked Service and you do not agree to this Agreement, you are not entitled to use the respective software or the application and please promptly uninstall and delete all copies thereof.
I. TERMS USED IN THIS AGREEMENT
Action: A click or other interaction or action on any feature or functionality of Kiosked Service that results in a Transaction and/or the user being forwarded to an online store or a website operated by Brand, Merchant or a third party.
Administrator: The party who administrates and operates a Competition.
Artificial Traffic: Invalid, automated, deceptive or fraudulent Actions, Transactions and Impressions, which may be generated by any person or which may originate without limitation from automatic openings, spiders, robots, automated programs, adware or spyware, requests in e-mail or chat rooms, script generators, placing and using Media, Kiosks or other features or functionalities of Kiosked Service in a manner they are not intended to be placed or used, Actions, Transactions and Impressions which are not generated by a browser and Actions, Transactions and Impressions which are not preceded by an active act of an end user.
Brand: A party to this Agreement registered as a Brand, utilizing Kiosked Service to promote Products.
Competition: A contest, competition, sweepstakes or similar offering administered on or in connection with Kiosked Service.
Competition Terms: The terms and conditions set by Administrator that are applicable to a Competition, as amended by Administrator from time to time.
End User: A party to this Agreement registered as an End User and using Kiosked Service functionalities offered to end users without acting in any of the other roles covered by this Agreement and mentioned in this Section 1.
Impression: Impression of a Kiosk or Media, as the context may require.
Kiosk: A functionality of the Kiosked Service embedded to Media which displays Product Information relating to certain Product(s) and which may, among others, enable certain type of Actions with such Product(s).
Kiosked Confidential Material: Defined in Section 12.
Material: All material provided by You to Kiosked Service, including but not limited to Product Information and Media.
Media: Image, video, game or any other online media submitted to Kiosked Service which is indicated with a Kiosked K-logo and wherein Kiosk(s) is/are included. For avoidance of doubt, for the purposes of this Agreement Media shall include any and all images, videos, games or other online media to which a Kiosked K-logo and Kiosk(s) have been included by using any software development tools and/or other tools, functionalities, features or downloads which may be provided by Kiosked .
Merchant: A party to this Agreement registered as a merchant, which is a seller of Products and is utilising Kiosked Service for promotion of its role as a merchant.
Price List: Defined in Section 8.
Product(s): Product(s) that can be purchased from or that are promoted in Kiosked Service. Products can refer to both physical and digital products and also to services.
Product Information: Information and content submitted to Kiosked Service by Brand and Merchant which information is displayed in Kiosks pursuant to the description of the Service.
Publisher: A party to this Agreement registered as a Publisher, enabling Impression of Media on website(s) controlled by the Publisher as set out in more detail in this Agreement and in the description of the Service.
Transaction: A purchase of Product facilitated in any way by Kiosked Service.
YOUR RIGHTS AS A CONSUMER: NOTHING IN THIS AGREEMENT REMOVES OR SUPERSEDES YOUR RIGHTS AS A CONSUMER BASED ON MANDATORY PROVISIONS OF LAW. THEREFORE, IF YOU REGISTER INTO KIOSKED SERVICE AS AN END USER, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY NOT NECESSARILY APPLY TO YOU.
II. USE OF THE SERVICE
Use of Kiosked Service is subject to prior registration and Your continued compliance with the terms of this Agreement and all relevant guidelines and Policies located at “Policies”, which may be revised from time to time by Kiosked. Kiosked reserves the right to refuse participation of any party at any time in its sole discretion. You shall use Kiosked Service in accordance with any applicable laws and good business practises.
In order to be able to use Kiosked Service, You must register as a user. When registering, You must choose whether You register in the role of a Brand, Merchant or Publisher. You can also register to Kiosked Service as an End User. Sections 8 and 9 of this Agreement shall not be applied to End Users.
Upon registration and while using the Service (in particular but without limitation when making and when receiving payments) You must provide Kiosked with such registration and other information as is from time to time required by Kiosked. If you register as a company (or any other legal entity) you confirm that the company accepts the terms and conditions of this Agreement. BY REGISTERING A COMPANY OR OTHER LEGAL ENTITY, THE REPRESENTATIVE REGISTERING THE COMPANY PERSONALLY REPRESENTS AND WARRANTS THAT THE SUBMITTED INFORMATION IS TRUE AND ACCURATE AND THAT THE REPRESENTATIVE IS AUTHORISED TO BIND THE COMPANY INTO THIS AGREEMENT. If you register as a private person, by agreeing to these terms and conditions, You confirm that You are at least 18 years of age.
Kiosked reserves the right to require Kiosked’s prior or later acceptance for registration. Kiosked has a right to refuse the registration for any reason. Registration can be limited, for example, in terms of territory, field of business, and other corresponding factors.
As part of the registration process You are requested to select access codes, i.e. a user name and a password. It is Your responsibility to preserve the confidentiality of the access codes and notify Kiosked immediately of any known or suspected unauthorised disclosure or use of the access codes. Until receipt of such notification by Kiosked, You are fully responsible for all use of the user name and password. You shall retain all registration and other information up-to-date, including especially payment information and contact information.
You are solely responsible for the Material you have submitted to Kiosked Service, including keeping the Material and all information contained in the Material up-to-date. You acknowledge that the Material is not submitted, selected or controlled by Kiosked but by registered users of Kiosked Service, i.e. Brands, Merchants and Publishers.. Kiosked is merely providing a platform enabling promotion activities by Brands and Merchants at sites controlled by Publishers. The role of Kiosked is that of a hosting service provider pursuant to the Directive 2000/31/EC of the European Parliament and of the Council on Electronic Commerce. You acknowledge that when You submit Material to Kiosked Service the settings and preferences that You define for the Material will define the way in which other users of Kiosked Service and/or third parties may make the Material available to the public as part of Kiosked Service.
V. PROHIBITED USES
You shall not, and shall not authorize any third party to: (i) submit any Material which includes incorrect, incomplete or otherwise misleading information, or use of which would be illegal or would infringe third party rights, (ii) use any Material in a way which could be regarded as deceptive marketing or marketing contrary to sound business practises, (iii) submit any Material that contains any pornographic, hate-related or violent content, (iv) act in any way that violates any Policies, as may be revised from time to time by Kiosked, (v) engage in any action or practice that reflects poorly on Kiosked or otherwise disparages or devalues Kiosked’s reputation or goodwill, (vi) as a Brand or Merchant, facilitate promotion which is illegal or which infringes third party rights in the respective territory (including but not limited to promotion of Products, the promotion or sale of which would be illegal in the respective territory), (xii) as a Publisher, make Media available in context where promotion of Products connected with the Media would be illegal or infringe third party rights or make Media, Kiosks or any other features or functionalities of the Service available on any such website which features illegal, infringing, offensive or questionable information or content, which includes but is not limited to, pornography, racism and hate content, adware, spyware, Peer2Peer and file sharing, (iix) as a Publisher, Merchant or Brand use any Media for promotional purposes, unless (a) it is expressly indicated in Kiosked Service in connection with the respective Media that such use is permitted, and/or (b) You have obtained all necessary permits and authorizations for such use of the Media, (ix) as a Publisher, edit, modify or filter in any way Media or Product Information made available through Kiosked Service, including framing, minimizing or otherwise inhibiting the full and complete display of Media or any other element related to Kiosked Service, (x) create a new account to use the Service after Kiosked has terminated this Agreement with You as a result of your breach of this Agreement or violation of Policies, or (xi) generate or contribute to generating Artificial Traffic to any websites, online stores or other services and points of sale operated by Brand, Merchant or any third party. You undertake to notify Kiosked with no undue delay of any known or suspected improper or wrongful use of Kiosked Service.
VI. IMPRESSIONS OF media AND FILTERING
Kiosked maintains the platform enabling the use of Kiosked Service and Impression of Media by Publishers. Kiosked may at any time prevent Impression of a Media for any reason. You acknowledge that Kiosked may enable use of filtering systems enabling Brand and/or Merchant to filter out Impressions of Media on unwanted websites and/or IP addresses as determined by a Brand, Merchant and/or Kiosked. You acknowledge that filtering may be based on third party databases and may contain errors. Therefore Kiosked shall use its reasonable efforts to facilitate filtering, but makes no representation or warranty on the proper functioning of the filtering. Kiosked disclaims all damages which may result from filtering preventing use of Media by a Publisher or from Impression of Media on undesired websites or IP addresses.
VII. AVAILABILITY OF KIOSKED SERVICE
Kiosked shall use its reasonable commercial efforts to ensure that Kiosked Service is available continuously. Kiosked shall have a right to suspend temporarily or permanently Kiosked Service at any time for maintenance or for any other reason. Kiosked shall strive to notify parties on such suspensions, but is under no obligation to do so.
Following terms specific to Publishers:
You shall receive a revenue share based on the Gross Revenue as specified in the price list of Kiosked (“Price List”). Unless otherwise specified in the price list applicable to You, “Gross Revenue” means the amount of fees (excluding value added taxes and other official duties) actually received by Kiosked directly arising out of Actions and/or Transactions taking place at domain(s) controlled by You and it excludes among others any monthly or other fixed fees charged by Kiosked from Brands and Merchants for the use of the Service. The revenue share shall be sent to You by Kiosked only after Kiosked has received the Gross Revenue attributable to You from Brands and/or Merchants and/or from applicable affiliate network. Before sending the revenue share to You, Kiosked may provide You with a preliminary estimate of the revenue share. You acknowledge and agree that such estimate is not binding on Kiosked and is subject to changes, and that the actual revenue share payable to You shall be finally determined only after Kiosked has received the Gross Revenue in question. Unless otherwise agreed by the parties in writing, revenue share shall be sent to You by Kiosked by the end of the calendar month following the month in which Kiosked received the Gross Revenue in question, if your earned balance is 50 EUR or more. In the event that the Agreement is terminated, Kiosked shall pay your outstanding balance within 90 days from the termination of the Agreement, on the condition that Kiosked has received the Gross Revenue attributable to You by said date. Kiosked shall in no event make any payments if Your balance is less than 10 EUR. For avoidance of doubt, if You are a Brand or Merchant, no remuneration shall be provided to You for the use of Media provided by You.
The agreed revenue share is inclusive of any taxes or other official duties which may be charged from the revenue share. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your use of Kiosked Service or payment of revenue share. In case Kiosked has an obligation to pay withholding tax or other official charges based on the revenue share, Kiosked shall be entitled to deduct corresponding amounts from actual payments made to You.
Kiosked reserves the right to withhold from making any payments in case it has reason to believe You have breached the terms of this Agreement.
Payment of revenue share is subject to You providing Kiosked with such payment, identification and other information and documentation as Kiosked may request from You from time to time. You understand that Kiosked may not be able to pay you revenue share in accordance with this Agreement should You fail to provide such information or material or if such information or material is not correct, complete or up-to-date.
Following terms specific to Brands and Merchants
Unless otherwise agreed upon between the parties in writing, Kiosked shall charge You fees for the use of Kiosked Service according to the Price List. Such fees may include among others Action, Transaction and recurring service subscription fees. You undertake to provide Kiosked with such information as is requested by Kiosked relating to any and all Transactions facilitated by Kiosked Service and to install such software and/or tools as is requested by Kiosked or approved by Kiosked that enable automated reporting of such information. Payments shall be made in EUR or other currency agreed by the Parties and no later than 30 days from the invoice date. In case credit card charges are used, the credit card You have submitted shall be charged monthly. Late payment bears an interest of 12 % per annum. Payments are exclusive of taxes, and recipient of an invoice is responsible for any taxes and costs incurred by Kiosked in collecting late amounts.
You acknowledge that the agreed fees are net amounts. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your use of Kiosked Service.
IX. DEFINITION OF REVENUE SHARE AND BASIS OF FEES
The charges and fees and the revenue share shall be calculated solely based on records compiled and maintained by Kiosked. No other measurements or statistics of any kind shall be accepted by Kiosked or have any effect under this Agreement (including but not limited to any statistics compiled or maintained by You). Kiosked shall not be obliged to pay revenue share for any activity, Action, Impression or Transaction or other applicable basis which, pursuant to Kiosked reasonable assessment may be: (i) based on Artificial Traffic, (ii) originating from Publisher’s IP addresses or computers under Publisher’s control, (iii) is solicited by Publisher’s payment of money, or any illegal or otherwise invalid request for users to carry out actions accumulating revenue share; (iv) Actions, Impressions or Transactions for which Kiosked is unable to charge its customers (for whatever reason); or (v) Actions, Impressions or Transactions co-mingled with a significant number of Actions, Impressions or Transactions described above.
You agree that You shall not generate or contribute to generating Artificial Traffic. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and may be sanctioned under criminal law.
If you dispute any payment made under this Agreement, you must notify Kiosked in writing within thirty (30) days of any such payment, failure to so notify Kiosked shall result in the waiver by You of any claim relating to any such disputed payment.
Certain parts of Kiosked Service may allow users of the service or third parties to administer a Competition on Kiosked Service. Each Competition is administered by and at the responsibility of Administrator identified in connection with the Competition.
Following terms specific to a participant of a Competition:
Your participation in a Competition is subject to the Competition Terms. In addition, You agree to abide by this Agreement and all applicable laws, rules and regulations when using Kiosked Service in connection with the Competition.
You irrevocably and permanently transfer and assign to Kiosked the title and all intellectual property rights in and to the Media You submit to Kiosked Service in connection with your participation in a Competition, which transfer and assignment includes the rights to sublicense and further transfer and assign such title and rights and the right to further develop and make changes to the Media. Notwithstanding anything to the contrary in this Agreement, unless otherwise explicitly set out in the Competition Terms, where You submit Media to Kiosked Service as a result of or in connection with a Competition, You agree that Your sole consideration for submitting the Media to the Competition and Kiosked Service shall be the possibility to win the prize specified in the Competition Terms and that You are not entitled receive any revenue share from Kiosked or Administrator in relation to such Media on the basis of their use in connection with Kiosked Service or otherwise. If the Media You submit to a Competition is selected as a winning Media (“Winning Media”), you give Administrator and Kiosked the permission to use your name in connection with the Competition and Kiosked Service.
Following terms specific to Administrators:
As Administrator You, not Kiosked, are solely liable for the lawful administration and operation of the Competition, including without limitation the following: (i) administering the Competition in compliance with applicable laws, rules and regulations governing the Competition; (ii) the Competition Terms, including without limitation eligibility requirements (e.g., age and residency restrictions), if any; (iii) the compliance with any applicable privacy laws, rules and regulations in relation to Your collection and use of personal data (if any) in connection with the Competition (including without limitation obtaining necessary permits and licenses for the Competition); (iv) the prizes of the Competition and their delivery to the participant who has submitted the Winning Media; and (v) the payment of any applicable taxes and other public charges arising out of or in connection with the Competition.
Without limiting the foregoing, You agree to follow Kiosked’s Policies and instructions applicable to the Competitions, except where compliance with such Policy or instruction would lead to Your non- compliance with Your obligations set out in the paragraph immediately above and You have notified Kiosked in writing of the provision(s) in the Policy or instruction that would result in such non-compliance. Unless otherwise agreed by You and Kiosked, You acknowledge that the Winning Media in Your Competition are selected by such user voting or other processes as is from time to time made available by Kiosked as a part of or in connection with Kiosked Service and You agree to deem the Winning Media selected by the said process as the Winning Media in Your Competition.
You will get such rights to the Winning Media as is separately agreed by You and Kiosked.
XI. API’S, PLUg-ins and Software
Kiosked API’s are a collection of services, as may be amended from time to time by Kiosked without prior notice, forming a part of Kiosked Service and allowing your webpages and applications to access and use Kiosked Service and/or to include parts of Kiosked Service and/or Material from Kiosked Service in your own webpages and applications. All use and access to Kiosked API’s and your use of any parts of Kiosked Service or Material on Your own webpages or applications (each use on Your webpages or applications a “Kiosked API Implementation”) shall be subject to the terms and conditions of this Agreement. You shall be solely liable for Your webpages and applications connected to Kiosked API’s and all authorized and unauthorized use of and access to Kiosked API’s and Kiosked Service by and via your webpages, applications and Kiosked API Implementations. Subject to your continued compliance with the terms and conditions of this Agreement, Kiosked gives you a personal, worldwide, royalty-free, non-transferable, non- assignable, non-sublicenseable and non-exclusive license to use and display the Material in your Kiosked API Implementation, in such form and content the Material is provided in Kiosked Service and via Kiosked API’s, in the manner permitted by this Agreement. All Material accessible and usable via Kiosked API’s shall be subject to provisions of Sections 13 and 14. You should exercise judgment in your use of the Material. Certain Material is provided under license from third parties, and is subject to intellectual property rights of such third parties and the terms and conditions under which such Material is licensed (for example, Creative Commons Attribution license where so indicated). You may be held liable for any unauthorized copying or distribution of the Material or Kiosked Service. Kiosked may impose or adjust limits on the use of Kiosked API’s at any time, at Kiosked’s sole discretion. Kiosked may at any time discontinue the provision of Kiosked API’s to You or any third party in full or part, permanently or temporarily, with or without notice to You or any third party. Use of and access to some Kiosked API’s and/or some or all Kiosked API Implementations may be subject to separate agreement by You and Kiosked and/or payment of applicable fee(s). You agree not to access and use such API’s or make such Kiosked API Implementations in the absence of such separate agreement and to pay to Kiosked any applicable fees for such access, use and Kiosked API Implementations.
Kiosked may make available to you software, including but not limited to plug-ins, which facilitate the use of Kiosked service, for example by connecting Your Kiosked account to a third party service (“Kiosked Software”). Use of and access to some Kiosked Software may be subject to separate agreement by You and Kiosked and/or payment of applicable fee(s). Such Kiosked Software may be provided under license from third parties, and be subject to intellectual property rights of third parties and the terms and conditions under which such Kiosked Software is licensed. Unless otherwise provided in any other terms and conditions applicable to Kiosked Software and subject to your continued compliance with the terms and conditions of this Agreement, Kiosked gives You a personal, worldwide, royalty-free, non-transferable, non- assignable, non-sublicenseable, non-exclusive and revocable license to use Kiosked Software in connection with Your use of Kiosked Service, in the manner permitted by this Agreement. Notwithstanding anything to the contrary, the provision and use of Kiosked Software shall be subject to provisions of Sections 13 (No Warranty) and 14 (Limitations of Liability; Force Majeure).
You acknowledge and agree that if you connect your Kiosked account to any third party service and/or application, your Kiosked account may be accessed and used by such third party service and/or application. Any such connection is made at your own risk and you shall be liable for any use of Kiosked Service as a result of such connection regardless of whether the use is authorized by you or not.
You agree not to disclose Kiosked Confidential Material without Kiosked’s prior written consent and You agree to use it only for the purposes of this Agreement and Kiosked Service. “Kiosked Confidential Material” includes without limitation: (a) all Kiosked software, technology, programming, specifications, materials, guidelines and documentation relating to Kiosked Service; (b) statistics related to the use of Kiosked Service provided to You by Kiosked; (c) any and all information relating to other users of Kiosked Service (including without limitation Publishers), Kiosked’s business partners and other third parties, to the extent such information is provided to You in Kiosked Service or included to any reports or other communications relating thereto, or is otherwise provided to You by Kiosked; and (d) any other Material designated in writing by Kiosked as “Confidential” or an equivalent designation. Kiosked Confidential Material does not include Material that has become publicly known through no breach by You, or Material that has been (i) independently developed without access to Kiosked Confidential Material, as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority.
XIII. NO WARRANTY
KIOSKED SERVICE AND MEDIA AND OTHER MATERIAL ARE PROVIDED “AS IS” AND YOU AGREE THAT YOUR SOLE RECOURSE IN THE EVENT YOUR ARE DISSATISFIED WITH THE SERVICE IS TO TERMINATE THIS AGREEMENT ACCORDING TO SECTION 25 BELOW. KIOSKED MAKES NO WARRANTY, EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. THE SERVICE IS PROVIDED TO ALL PARTIES ACCORDING TO KIOSKED’S REASONABLE EFFORTS.
XIV. LIMITATIONS OF LIABILITY; FORCE MAJEURE
EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE SERVICE, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (ii) KIOSKED’S AGGREGATE LIABILITY TO PUBLISHER, BRAND, MERCHANT OR END USER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY KIOSKED TO THE PARTY OR TO KIOSKED BY THE PARTY IN QUESTION DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM, AND IN NO CASE MORE THAN 100 EUR. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to acts of God, labor conditions, power failures and interruptions in communications connections.
Kiosked may use general information (such as the name and/or logo) of parties to this Agreement in its marketing of the Service pursuant to good business practises and reasonable guidelines submitted by the relevant party from time to time. The aforementioned parties may also present themselves in public as users of Kiosked Service pursuant to good business practises and reasonable guidelines submitted by Kiosked from time to time.
XVI. REPRESENTATION AND WARRANTIES AND INDEMNIFICATION
Following terms specific to Publishers and End Users:
You represent and warrant that Your use of Kiosked Service, Media and Product Information shall always comply with the applicable laws and regulations (including applicable marketing and media regulations) and shall not infringe any rights of third parties or those of Kiosked or other users of Kiosked Service. You further represent and warrant that Media or any other Material submitted by You to Kiosked Service can be used as part of Kiosked Service, and such use by any party utilising Kiosked Service shall always comply with the applicable laws and regulations and shall not infringe any rights of third parties or those of Kiosked or other users of Kiosked Service. If you submit Media in connection with your participation in a Competition, You represent and warrant that You have the necessary licenses, rights, consents, and permissions to transfer and assign the title and intellectual property rights in and to the Media as provided in this Agreement.
Following terms specific to Brands and Merchants
You represent and warrant that Your use of Kiosked Service shall always comply with the applicable laws and regulations and shall not infringe any rights of third parties. You further represent and warrant that Product Information or any other Material submitted by You to Kiosked Service can be used as part of Kiosked Service, and such use by any party utilising Kiosked Service shall always comply with the applicable laws and regulations and shall not infringe any rights of third parties or those of Kiosked or other Brands or Merchants. If You are a Merchant, You represent and warrant that the Product Information submitted by you is accurate and that the Products in question are actually available for purchase at the stated prices and other terms of purchase.
Following additional terms specific to Administrators and participants of the Competitions regardless of whether they are End Users, Brands, Merchants, Publishersor End Users:
If you are Administrator of a Competition, You represent and warrant that the Competition shall comply with all applicable laws, rules and regulations and that if you collect personal information in connection with the Competition, you collect, store, use and disclose such information only in compliance with applicable laws, rules and regulations.
If you are a participant in a Competition, You shall give such representations and warranties with respect to all Media you submit to Kiosked Service in connection with you participation in a Competition as are given above in this Section 16 by a Publisher and by an End User and you also represent and warrant to Administrator of the Competition, Kiosked and all third parties that you own the title and all intellectual property rights in the Winning MediaMedia and/or any other Media You submit to Kiosked Service in connection with Your participation in the Competition and that You have the necessary licenses, rights, consents, and permissions to transfer and assign the title and intellectual property rights in the Media in accordance with Section 10 above.
Following terms apply to Brands, Merchants, Publishers and End Users:
You agree to indemnify, defend and hold Kiosked, its affiliates, subsidiaries, directors, officers, employees, as well as Brand, Merchant, Publisher and End User (collectively “Indemnified Person(s)“) harmless from and against any and all third party claims and any related liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your breach of the warranties set out above in this Section.
XVII. INTELLECTUAL PROPERTY RIGHTS
You acknowledge that Kiosked owns all right, title and interest, to all intellectual property rights (as defined below) in and to Kiosked Service. You undertake that You will not, and will not allow or have a third party to, modify, adapt, copy, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from Kiosked Service, related software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to Kiosked Service or proprietary material related thereto. You shall not remove or otherwise inhibit the full display of any trademarks or copyright notices of Kiosked that Kiosked may have included in connection with Media, Product Information or other material made available as part of Kiosked Service.
For avoidance of doubt, information and content arising out of use of Kiosked Service by parties to this Agreement and by End Users is exclusive property of Kiosked and/or its service partners, as the case might be. Without limiting the generality of the foregoing, (i) any statistical data and information, arising out of the use of Kiosked Service is exclusive property of Kiosked and constitutes Kiosked Confidential Material, (ii) any technical feedback and error reports, improvement proposals and other user feedback arising out of the use of Kiosked Service is exclusive property of Kiosked and constitutes Kiosked Confidential Material, and (iii) any user generated content related to Kiosked Service is exclusively controlled by Kiosked and/or its service partners, as the case might be.
XVIII. THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENTS
Kiosked takes intellectual property rights seriously and offers all rights holders a notification form for reporting alleged intellectual property infringements. The form and relevant guidelines can be found at “Infringements Policy”.
XX. DATA SECURITY
Kiosked shall use reasonable commercial efforts to ensure data security of data systems related to Kiosked Service. However, Kiosked disclaims any liability arising out of data security breaches, including without limitation costs, damages and losses related to unauthorised access to data by third parties or loss of data.
XXI. CHANGES TO KIOSKED SERVICE
XXII. CHANGES TO THIS AGREEMENT
Kiosked may change the terms of this Agreement from time to time in which case the revised terms will be posted on Kiosked Service and the change will be communicated from within or via the Service. By continuing to use the service following such changes You agree to be bound by the amended Agreement. You acknowledge that Kiosked may change its price list at any time.
XXIII. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties with respect to the subject matter of the Agreement.
XXIV. NO AGENCY
Nothing in this agreement shall be construed as creating a partnership, agency, joint venture or any legal entity between Kiosked and Brand, Merchant, Publisher or End User. Kiosked is not acting as a representative or agent of any of the parties with respect to Kiosked Service.
Either Party may terminate this Agreement with or without cause by sending a written notice to the other Party, such termination to be effective at the end of the calendar month following such notice. In case You have agreed on the use of Kiosked Service for a fixed period of time, the Agreement shall be effective until the end of the term that has been agreed upon, after which the Agreement will continue automatically and may be terminated in accordance with this Section 25. Notwithstanding the foregoing, Kiosked may at any time, in its sole discretion, terminate all or part of the Service, terminate this Agreement, or suspend or terminate the inclusion of any Material in all or part of the Service for any reason. Upon termination, (i) the provision of Kiosked Service shall cease immediately, (ii) as a Publisher, You shall remove any scripts and other material provided by Kiosked from Your websites, (iii) Kiosked may delete all data submitted by You to Kiosked Service, observing, however that Kiosked has a right, but has no obligation, to retain the said data in order to enable You to reactivate Kiosked Service. Regardless of the termination, sections 4 and 10 through 25 of this Agreement shall remain in force.
This Agreement shall be governed by the laws of Ireland, except for its conflicts of laws principles. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce by one (1) arbitrator according to said rules. The arbitration shall be conducted in English in the city of Stockholm, Sweden. Any modifications to this Agreement must be made in writing executed by both parties, by Your online acceptance of updated terms, or by Your continued use of the Service after such terms have been updated by Kiosked. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Kiosked. Notwithstanding the foregoing, Kiosked may assign this Agreement to any affiliate at any time without notice and otherwise as part of a sale of business. The relationship between Kiosked and You is not one of a legal partnership, but is one of independent contractors.