Terms of Service

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Updated: June 20, 2007

Terms of Service

Welcome to Kiwee! Kiwee is operated by AGCM, Inc. (collectively referred to as "Kiwee", "we", "us" or "our"). Before taking advantage of the many useful services offered here, please take a minute to ensure that you understand the terms and conditions of our relationship by reading this important information. As a condition to using, accessing or browsing the Kiwee web site, applications, content and service (collectively the "Service") users must agree to these Terms of Service Terms of Sale, and Privacy Policy (collectively the "Agreement"), as well as all other policies and guidelines incorporated by reference in this Agreement. By using the Service and clicking through the purchase process, you agree to be legally bound by the Agreement. If you do not agree with any of these terms, please do not use the Service.

Agreement to Contract Electronically
End User License Terms Agreement
Modifications
Monitoring
Intellectual Property
Links to Other Web Sites
Disclaimers
Limitation of Liability
Termination
Privacy Policy
Indemnification
Enforcement
Governing Law
Updates to Terms
Miscellaneous

By clicking through the purchase process, you agree to contract electronically with Kiwee. You also agree that this Agreement has the same legal force and effect as a written contract with your written signature and satisfies any laws that require a writing or signature, including any applicable Statute of Frauds. You further agree that you shall not challenge the validity, enforceability, or admissibility of this Agreement on the grounds that it was electronically transmitted or authorized. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records. In addition, you acknowledge that you have had the opportunity to print this Agreement.

a. License Grant. Subject to the terms and conditions of this Agreement, Kiwee grants you a non-exclusive, revocable, limited license, to copy, use and download the Service solely for non-commercial purposes and on a computer under your personal full control (e.g. laptop or home computer). You may also share the Service with members of your household under the terms specified in this Agreement. You agree that any copy of the Service (or any portion thereof) that you make shall retain all copyright and any other proprietary notices contained herein.

b. Prohibitions. You may not rent, sell, lease, sublicense, distribute, assign, copy or in any way transfer the Service or any content found thereon for the benefit of any third party. You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the source code of the Service, or attempt to do so for any reason, or develop any software or application to circumvent the payment mechanisms on the Service. Further, you may not access, copy, or modify our source code in any way. You do not have the right to and may not create derivative works of the Service. All modifications or enhancements to the Service remain the sole property of Kiwee. Framing of the Service and/or posting the Service on other web sites is strictly prohibited. Kiwee, in its sole discretion, may modify, discontinue or suspend your right to access or use the Service at any time.

c. Restrictions You may not use the Service to: (i) perform any activity which is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) engage in commercial activities including, but not limited to, sending spam, offering for sale any part of the Service, soliciting for advertisers or sponsors or selling, licensing or granting public access to the Service; (iii) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; and/or (v)violate any applicable local, state, national or international laws.

We may discontinue, add to, modify, upgrade, or replace all aspects of the Service in our sole discretion and without notice. In particular, we reserve the right to modify, supplement, delete, discontinue, or remove any content, software, file, publications, information, communication, or other material appearing on or transmitted through the Service.

Kiwee has no obligation to monitor the Services or any use thereof or to retain the content of any user session. However, Kiwee reserves the right at all times to monitor, review, retain, and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process, or governmental request or to cooperate with law enforcement and other authorities in investigating a claim of illegal activity, as authorized by our Privacy Policy.

All of the content on the Service, including, but not limited to, any text, graphics, logos, button icons, images, pictures, audio clips, and software (collectively the "Content"), is the property of Kiwee, our partners, or content providers and is protected by international copyright laws. All trademarks, trade names, brand names, and service marks of Kiwee, whether registered or unregistered, are the property of Kiwee and are protected by United States and international trademark laws. All other trademarks, product names, and company names or logos cited herein (collectively the "Trademarks") are the property of their respective owners. All patents issued to and patent applications filed by Kiwee are the property of Kiwee and are protected by United States patent laws. Any use of Content, copyrighted material, trademarks and patentable assets is strictly prohibited without the prior written consent of Kiwee. You must own or have the requisite rights to post any Content on the Service and agree to indemnify, defend and hold Kiwee harmless from and against any third party claims regarding content you provide on the Service.

The Service may contain links to third party web sites ("Third Party Sites"). Kiwee does not either expressly or by implication, endorse the content on these Third Party Sites. The links are provided for your convenience only. Kiwee has no control over such Third Party Sites, nor do we review the content on those Third Party Sites; therefore, we are not responsible or liable for any content, advertising, services, products, or other materials on or available from such Third Party Sites. You further acknowledge and agree that Kiwee is not responsible or liable, either directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such Third Party Site or resource.

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. NEITHER KIWEE NOR ANY OF ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, OR SUPPLIERS WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES KIWEE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE OR AS TO THE ACCURACY, RELIABILITY, COMPLETENESS, OR CONTENT OF ANY INFORMATION, MERCHANDISE OR PRODUCTS PROVIDED THROUGH THE SERVICE. ALL CONTENT, PRODUCTS, MERCHANDISE, CUSTOMIZATION, AND MATERIALS OBTAINED THROUGH THE SERVICE INCLUDING ALL TEXT, FILES, GRAPHICS, LINKS, ANIMATION AND JAVA SCRIPT ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAW ARE APPLICABLE TO THIS AGREEMENT. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION, OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, AND ALL CAUSES OF ACTION FOR THE SAME, WHETHER BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR OTHERWISE. KIWEE IS NOT RESPONSIBLE FOR ANY CONTENT DISTRIBUTED BY YOU OR TO YOU IN CONNECTION WITH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

IN NO EVENT SHALL EITHER KIWEE OR ANY OF ITS EMPLOYEES, AFFILIATES, AGENTS, CONTENT PROVIDERS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF €100. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KIWEE OR ANY OF ITS EMPLOYEES, AFFILIATES, AGENTS, CONTENT PROVIDERS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER PECUNIARY LOSS), WHETHER IN AN ACTION IN WARRANTY, CONTRACT, OR TORT, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (i) THE USE OR PERFORMANCE OF THE SERVICE; (ii) THE DELAY OR INABILITY TO USE THE SERVICE; (iii) THE PROVISION OF OR FAILURE TO PROVIDE ANY INFORMATION AND RELATED GRAPHICS CONTAINED ON OR MADE AVAILABLE THROUGH THE SERVICE; AND (iv) THE FAILURE TO PROVIDE THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT PAYMENT BY KIWEE OR RETENTION BY YOU OF DIRECT DAMAGES AS LIMITED BY THE FOREGOING PARAGRAPH IS YOUR SOLE AND EXCLUSIVE REMEDY IN EXHAUSTION OF ALL OTHER REMEDIES UNDER THIS AGREEMENT, AT LAW OR IN EQUITY. IN NO EVENT WILL KIWEE BE LIABLE FOR ANY DAMAGES CAUSED BY THE ACTS OR OMISSIONS OF YOU OR ANY THIRD PARTY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

The terms of our privacy policy can be found by Clicking Here.

You hereby indemnify, defend and hold harmless MSN, Kiwee, and their affiliates, and all officers, directors, owners, agents, content providers, licensors and licensees (collectively, the "Indemnified Parties") from and against any and all liability and costs, including, without limitation, reasonable attorneys' fees, incurred by the Indemnified Parties in connection with any claim arising out of your use of the Service, or any breach of this Agreement. You shall cooperate as fully as reasonably required in defense of any such claim. We reserve the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

In the event we determine, in our sole discretion, that you have violated these Terms, we shall have the right to immediately terminate your account (with or without refund), refuse membership, or block the sending or receipt of Content from our Site, and/or pursue any other remedies available to us under applicable law.

This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the United Kingdom, except for its conflicts of law rules and principles to the extent that such rules would require or permit the application of the laws of another jurisdiction. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with the said Rules. Such arbitration shall take place at a mutually agreeable location in the City of London and be conducted in the English language. Any arbitration hereunder shall be conducted on an individual basis only, and not on behalf of any class or group of similarly situated persons.

We shall have the right to revise these Terms at any time by updating this posting. By using this Site, you agree to be bound by any such revisions and should therefore periodically visit this Site to determine the then-current Terms to which you are bound.

This Agreement represents the complete agreement between you and Kiwee concerning the subject matter hereof and supersedes all prior agreements and representations. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the highest extent. Kiwee may transfer, assign sublicense or pledge in any manner whatsoever, any of its rights and obligations under this Agreement to any third party whatsoever, without notice and without the need to receive your consent. You shall not transfer, assign, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this Agreement. Thank you for your cooperation. We hope you find the Kiwee Service fun to use!