Terms and Conditions of Use Agreement

Read this Terms and Conditions of Use Agreement (“Agreement”) before using the www.kiwilive.com Web site (the “Site”). Your access to and use of the Site is provided subject to this Agreement. By using any part of the Site, you agree to these terms and conditions.

The Site is owned and operated by KiwiLive (“KiwiLive”). KiwiLive would like to thank you for visiting the Site.

Effective Date: This Agreement was last updated on, and is effective as of May 6, 2016.

I. Jurisdiction

KiwiLive makes no representation that the Site, including its information, services and content, are appropriate or available for use outside the United States except as provided in KiwiLive’s Privacy Policy, which you can review by clicking on the “Privacy Policy” link located at www.kiwilive.com. Those who choose to access the Site from locations other than the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local U.S. laws are applicable.

II. Your Responsibilities

You acknowledge that you are responsible for whatever material you submit to the Site, including its legality, reliability, appropriateness, originality, or copyright. If KiwiLive makes available a discussion group or bulletin board on this Site, you warrant that your use of such features is for lawful purposes only, as outlined below.

By placing or downloading material on the Site, including intellectual property, documents, text, images, audio files or other audio-visual content to the Site (“User Content”), you represent and warrant: (i) You own or otherwise have all necessary rights to the User Content you provide and the rights to provide it under this Agreement; and (ii) the User Content will not cause injury to any person or entity.

Without limitation, you may not submit to or transmit through this Site any material, or otherwise engage in any conduct that:

(a) violates or infringes the rights of KiwiLive or others including, without limitation, patent, trademark, trade secret, copyright, publicity, privacy, proprietary and/or intellectual property rights;

(b) is inaccurate, unlawful, discriminatory, threatening, abusive, harmful, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, pornographic, obscene, offensive, or otherwise objectionable to KiwiLive or other uses of the Site;

(c) victimizes, harasses, degrades, intimidates, discriminates against, or retaliates against an individual or group of individuals on the basis of religion, sex, race, national origin, age, physical or mental disability, sexual orientation, or other characteristics protected by applicable state or federal law;

(d) collects, stores, and/or discloses personal data about other others unless specifically authorized by such others;

(e) impersonates any person, business or entity, including KiwiLive, and KiwiLive’s employees and agents;

(f) misrepresents your affiliation with a person or entity;

(g) contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;

(h) attempts to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining, or any other means;

(i) transmits spam, bulk or unsolicited communications or posts third-party advertisements;

(j) that would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations or other government requirements or rules having the force of law, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm, or that otherwise could constitute a criminal offense or give rise to civil liability;

(k) violates this Agreement, guidelines, or any policy KiwiLive posts on the Site; or

(l) disrupts the normal flow of dialogue or negatively affects or interferes with other users’ ability to use the Site.

You acknowledge that KiwiLive has the right (but not the obligation), in KiwiLive’s sole discretion, to view, move, remove, block, edit, or refuse any Content, including User Content, for any reason, including, without limitation, that such User Content violates this Agreement or is otherwise objectionable.

III. Rights in your Content; Unsolicited Communications

You acknowledge that KiwiLive is a provider of a technology that functions as a medium for information transfer between various computer hardware and software. In connection with this service and associated products, KiwiLive may retain any information, regardless of its content, which is transferred via the Site, and any KiwiLive platforms, products, and technology (“KiwiLive Technology”).

By transferring information via the KiwiLive Technology, you grant KiwiLive a royalty-free, transferable, sub-licensable, worldwide license (“IP License”) to use, store, copy, and transfer the information and content (“IP Content”) as necessary to effectuate the use of the KiwiLive Technology.

Any communications you send to KiwiLive or its Site by e-mail or any other means are not confidential and KiwiLive is under no obligation to refrain from reproducing, publishing (except for Personal Information, as defined in KiwiLive’s Privacy Policy), or otherwise using them in any way or for any purpose. Section II herein applies to all such communications.

You agree to indemnify and defend KiwiLive and to hold KiwiLive harmless from and against any and all claims, liabilities, costs, expenses, actions arising or incurred by any third party if such third party’s privacy, confidentiality, intellectual property, or other rights are violated by what you chose to transfer via the KiwiLive Technology.

IV. Copyright and Trademark Information

All content posted to the Site by or at the direction of KiwiLive, including names, images, logos and pictures identifying services of KiwiLive or any of its site designs, text, graphics, interfaces, and the selection and arrangements thereof, is licensed by or is the property of KiwiLive and/or its affiliates and is protected by intellectual property rights. Except for personal non-commercial use of materials on the Site, any use, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of KiwiLive, is strictly prohibited. Users may copy, download, or print materials contained on the Site for their own non-commercial use, provided that a copyright notice crediting KiwiLive appears on all copies and that both the copyright notice and this permission notice appear in supporting documentation, and that the KiwiLive name is not used in advertising or publicity pertaining to distribution of this documentation without specific, written prior permission from KiwiLive. You agree that you will not use any robot, spider, or other automatic device, or manual process to monitor or copy any part or all of the Site or the content contained therein without prior written permission of an authorized officer of KiwiLive.

KiwiLive and its logos and other trademarks are proprietary marks of KiwiLive and may not be used in connection with any product or service that is not provided by KiwiLive, in any manner that is likely to cause confusion, or in any manner that disparages or discredits us. Nothing contained herein shall be construed as conferring any license or right under any KiwiLive patent, copyright, or trademark.

All other trademarks displayed on the Site are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those third parties. In addition, such use of trademarks or links to the Web sites of third parties is not intended to imply, directly or indirectly, that those third parties endorse or have any affiliation with KiwiLive or the Site.

All rights not expressly granted herein are expressly reserved to KiwiLive.

V. DISCLAIMER OF WARRANTIES

KIWILIVE IS NOT LIABLE FOR ANY DAMAGES YOU SUFFER FROM USE OF THE SITE. THE MATERIALS ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, KIWILIVE AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, AND CONTRACTORS DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

KIWILIVE MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO, AND SPECIFICALLY DISCLAIMS LIABILITY FOR, THE AVAILABILITY, USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY, RELIABILITY OR COMPLETENESS OF THE SITE OR ITS CONTENT.

KIWILIVE MAKES NO WARRANTY OR REPRESENTATION THAT: (a) ACCESS TO THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE QUALITY OF ANY SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL OBTAINED FROM THE SITE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT; OR (c) ANY ERRORS IN THE SITE WILL BE CORRECTED.

YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USING, ACCESSING, OR OBTAINING ANY CONTENT FROM THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.

KIWILIVE MAKES NO WARRANTY OR REPRESENTATION THAT ITS HOSTING OF ANY DATA OR INFORMATION COMPLIES WITH LOCAL, STATE, OR FEDERAL RECORDS RETENTION REQUIREMENTS. KIWILIVE HAS NO LIABILITY OF ANY KIND FOR ANY LOSS OF DATA OR INFORMATION.

APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OF OR THE ENTIRE EXCLUSION MAY NOT APPLY TO YOU.

VI. Limitation of Liability

IN NO EVENT WILL KIWILIVE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, OR CONTRACTORS BE LIABLE FOR ANY DAMAGES RESULTING FROM USE OF THE SITE, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE), EVEN IF KIWILIVE HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION, DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE OR ACCESS THE SITE, SERVICES, OR CONTENT; (b) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION, OR SERVICES OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SITE; (c) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, INCLUDING WITHOUT LIMITATION, UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; (d) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY, RELY ON, OR DISTRIBUTE; OR (e) THE LOSS OF ANY DATA, INFORMATION, OR CONTENT SUBMITTED OR POSTED TO THE SITE.

IN NO EVENT WILL KIWILIVE’S LIABILITY OR THE LIABILITY OF KIWILIVE’S LICENSORS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, AND CONTRACTORS IN CONNECTION YOUR USE OF THIS SITE, UNDER ANY THEORY OF RECOVERY, EXCEED $100.

THIS AGREEMENT DEFINES YOUR SOLE AND EXCLUSIVE REMEDY.

TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.

VII. Indemnification

You agree to indemnify and hold KiwiLive, its parents, predecessors, subsidiaries, assigns, agents, attorneys, trustees, trusts, trust beneficiaries, directors, partners, joint venturers, stockholders, affiliates, officers, and employees, harmless from each and any claim or demand, including but not limited to reasonable attorneys’ fees and costs, made by any third party due to or arising out of your use of the Site, your violation of this Agreement, or your (or other user of the Site using your computer or internet access) infringement of any intellectual property or any other right of any person or entity.

VIII. Termination

Your right to use the Site automatically terminates if you violate this Agreement or any rules or guidelines posted in connection with the Site. KiwiLive also reserves the right, in KiwiLive’s sole discretion, to terminate your access to all or part of any of the Site, for any reason, with or without notice.

IX. Privacy Policy

Our Privacy Policy explains the practices that apply to your information. The Privacy Policy is fully incorporated herein by reference. Your ongoing use of this Site signifies your consent to the information practices disclosed in KiwiLive’s Privacy Policy. You can review the Privacy Policy by clicking on the “Privacy Policy” link located at www.kiwilive.com.

X. Third-Party Sites

Our Site may include links to other sites on the Internet that are owned and operated by online merchants and other third parties. You acknowledge that KiwiLive is not responsible for the availability of, or the content located on or through, any third-party site. You should contact the site administrator or webmaster for those third-party sites if you have any concerns regarding such links or the content located on such sites. Your use of those third-party sites is subject to the terms of use and privacy policies of each site, and KiwiLive is not responsible for your use of said third-party sites. KiwiLive encourages you to review said privacy policies of third-parties’ sites.

XI. Governing Jurisdiction of the Courts in the State of Ohio

This Agreement is governed by and will be construed according to Ohio law, excluding any principles of conflicts of law. In the event of any dispute or controversy arising from this Site, you consent to the jurisdiction of the courts of Hamilton County, Ohio, and of the federal district court of the Southern District of Ohio. You further agree that venue for litigation arising from this Site will be exclusively in the Southern District of Ohio or its counterpart state court.

XII. Entire Agreement

This Agreement represents the entire agreement between you and us. No distributor, agent, or other person is authorized to modify this Agreement or to make any warranty or representation which is different than, or in addition to, the warranties and representations of this Agreement.

XIII. Botnets

KiwiLive retains the right, at its sole discretion, to terminate Site access involved with botnets and related activities. If any hostnames are used as command and control points for botnets, KiwiLive reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at KiwiLive’s discretion.

XIV. Other Terms

If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent. You agree that this Agreement and any other agreements referenced herein may be assigned by us, in KiwiLive’s sole discretion, to a third party. You agree that by accepting this Agreement, you are consenting to the use and disclosure of your personally identifiable information and other practices as described in KiwiLive’s Privacy Policy.

You acknowledge and agree that KiwiLive may preserve and disclose the contents of your online communications if required to do so by law, or in good faith belief that preservation and/or disclosure is reasonably necessary for the following purposes: (a) to comply with legal process, such as a court order, search warrant, or subpoena; (b) to enforce the terms of this Agreement; (c) to render service you request; (d) to protect KiwiLive’s rights or property; or (e) in circumstances that KiwiLive deems, in its sole discretion, to pose a threat to the safety of you or others.

XV. Modifications and Interruption to Service

KiwiLive reserves the right, at any time, to modify, alter, or update this Agreement without prior notice. Modifications shall become effective immediately upon being posted on the Site. Your continued use of the Site or purchases made after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as expressly stated herein, this Agreement may not be amended.

KiwiLive reserves the right to modify or discontinue the Site with or without notice. KiwiLive shall not be liable to you or any third party should KiwiLive exercise its right to modify or discontinue the Site. You acknowledge and accept that KiwiLive does not guarantee continuous, uninterrupted, or secure access to the Site and operation of the Site may be interfered with or adversely affected by numerous factors or circumstances outside of KiwiLive’s control.