End User License Agreement
Acceptance of Agreement
Downloading the Software
Your download and software installation will be managed by the Software. During the installation, we may present you with promotions, advertisements, and opportunities to acquire our own software as well as third-party software (“Offers”) presented by entities with whom we have a business relationship to provide Offers (“Partners”). You are not required to accept an Offer to receive your requested software download. The Software (i) downloads the files necessary to install your requested software; and (ii) scans the registry settings in your computer to: (x) ensure software compatibility with your operating system and other software installed on your computer and (y) determine eligibility of our Offers from our Partners and the Company. Once the Software has been initiated, and you have begun the installation process for your requested software, the Software will present you a welcome screen, which allows you to choose to install the software or cancel out of the process. We may also offer to: (i) change your browser’s homepage; (ii) change your default search provider; and (iii) install icons on your computer’s desktop, including third-party offers. Software we own and our partner’s software may include advertisements within the Software.
You may choose not to accept our Offers. Your participation is voluntary, you are not required to disclose to our Partners any information they request. If, however, you provide your personally identifiable information in response to any Offer, we will share it with our Partners so they can provide you with the Offers in which you have expressed interest.
Uninstalling/Removing the Software
The Software can be removed by manually deleting the kbm2.exe file from your downloads folder.
Other software associated with the Offers may be removed at any time using the following customary operating system procedures:
Windows – To uninstall from any of the supported browsers on Windows, go to the Windows Start Menu and then to Control Panel > Add/Remove (or Programs & Features in Vista/Windows 7) and click Remove.
Mac – To uninstall from Safari, Firefox or Google Chrome on a Mac, go to Tools > Add-ons in the top menu and click the corresponding Uninstall.
Your browsers may need close to complete the uninstall process. Please note that certain non-executable files may remain on your system after uninstalling. These files are a record of your download, and may be used to help prevent fraud and improve the Services if you choose to download the Software again.
Company’s Proprietary Rights
The Services may contain information, software, text, files, images, video, sounds, musical works, works of authorship, applications, and other materials or content belonging to the Company, the Company’s licensors, partners, and affiliates, and other third parties (collectively, “Company Content”). All Company Content is protected by copyright, trademark, patent, trade secret and other laws, and as between you and the Company, the Company owns and retains all rights in the Company Content. Upon your assent to this Agreement, the Company hereby grants you a limited, revocable, nonsublicensable license to access the Sites, and use and display the Company Content (excluding any software code) solely for your personal, non-commercial use in connection with your authorized use of the Software. Except as expressly permitted by the Company, you may not copy, download, stream capture, reproduce, duplicate, archive, upload, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, display, sell or otherwise use any Company Content.
Except as expressly permitted by the Company, you are strictly prohibited from creating works or materials (including but not limited to fonts, icons, link buttons, wallpaper, desktop themes, on-line postcards, montages, mash-ups and similar videos, greeting cards and unlicensed merchandise) that derive from or are based on the Company Content. This prohibition applies regardless of whether the derivative works or materials are sold, bartered or given away. You may not either directly or through the use of any device, software, internet site, web-based service or other means remove, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Company Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Company Content including geo-filtering mechanisms. Furthermore, you may not create, recreate, distribute or advertise an index of any significant portion of the Company Content unless authorized by the Company. You may not build a business utilizing the Company Content, whether or not for profit.
Restrictions on Your Use of the Services
THE SERVICES ARE OFFERED SOLELY FOR YOUR PERSONAL USE AND ENJOYMENT. ACCESSING OR USING ANY OF THE SERVICES FOR ANY COMMERCIAL PURPOSE OR GAIN IS PROHIBITED, UNLESS EXPRESSLY AUTHORIZED BY THE COMPANY IN WRITING PRIOR TO SUCH ACCESS OR USE.
You understand that you are responsible for all content that you post, upload, transmit, email or otherwise make available on, through or in connection with the Services (collectively, “User Content”). Accordingly, please choose carefully the information that you post on, through or in connection with the Services. You understand that the Company does not control the User Content and the Company assumes no responsibility or liability for objectionable User Content. If you become aware of misuse of the Services, please report this immediately to the Company. The Company assumes no responsibility for monitoring the Services for inappropriate User Content or conduct. If at any time, the Company chooses in its sole discretion to monitor the Services, the Company nonetheless assumes no responsibility for User Content other than Company Content, and assumes no obligation to modify or remove any inappropriate User Content, or responsibility for the conduct of any user.
You agree not to do any of the following in connection with your use of the Services:
- Post, upload or otherwise transmit or link to content that is: harmful, threatening, hateful, violent, discriminatory, abusive, obscene, pornographic, defamatory, false, misleading, tortious or unlawful;
- Violate the rights of others, including those relating to patents, trademarks, trade secrets, copyrights, privacy, publicity, or other proprietary rights;
- Violate any third party licenses or agreements, including software licenses, website terms and conditions, and privacy policies;
- Harass, harm, exploit or endanger another person;
- Impersonate or attempt to impersonate any person or entity;
- Introduce or engage in activity that involves the use of viruses, bots, worms, 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 or access to a computer or a computer network;
- Interfere with, damage, disable, disrupt, impair, create an undue burden on, or gain unauthorized access to any of the Services (including the Software) or any servers, networks or accounts of the Company or any of its affiliates;
- Cover, remove, disable, block or obscure advertisements or other portions of the Services;
- Use technology or any automated system such as scripts or bots in order to collect usernames, passwords, email addresses or other data from the Services;
- Circumvent or modify any technology, mechanism or software that is part of the Services or used by the Company in connection with the Services, including any mechanisms used to restrict access;
- Solicit, collect or request any personal information for commercial or unlawful purposes;
- Post, upload or otherwise transmit an image or video of another person without that person’s consent;
- Engage in any commercial activity (including but not limited to sales, contests, or sweepstakes) without the Company’s prior written consent;
- Use the Services to advertise or promote competing services or products;
- Use the Services in any manner inconsistent with this Agreement or Applicable Law; or
- Attempt, facilitate or encourage others to do any of the foregoing.
The Company reserves the right, but disclaims any obligation or responsibility, to remove User Content that violates this Agreement, as determined by the Company in its sole discretion. You acknowledge the Company reserves the right to investigate and pursue legal action against anyone who, in the Company’s sole discretion, violates this Agreement, including but not limited to, terminating user accounts and/or reporting such User Content, conduct, or activity to law enforcement authorities.
Your Proprietary Rights
The Company does not claim any ownership rights in the User Content that you post, upload, email, transmit, or otherwise make available on, through or in connection with the Services; provided, however, that User Content shall not include any content posted by a user that is already owned by the Company or any of its affiliates. By posting any User Content on, through or in connection with the Services, you hereby grant to the Company and its affiliates, licensees and authorized users, a perpetual, non-exclusive, fully-paid and royalty-free, sublicensable, transferable (in whole or in part), worldwide license to use, modify, excerpt, adapt, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, and distribute such User Content on, through or in connection with the Services or in connection with any distribution or syndication thereof to a Third Party Service, on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, trade or commercial purposes. The Company’s use of such User Content shall not require any further notice to you and such use shall be without the requirement of any permission from or payment to you or to any other person or entity. The Company reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Services.
You represent and warrant that: (i) you own the User Content posted by you on, through or in connection with the Services, or otherwise have the right to grant the license set forth in this Section, and (ii) the posting of User Content by you on, through or in connection with the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content posted by you on, through or in connection with the Services.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS-IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS, AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LOSSES THAT ARISE FROM YOUR ACCESS TO AND USE OF THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
IN PARTICULAR, THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS THAT (A) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (B) YOU WILL RECEIVE ANY SPECIFIC RESULTS FROM USING THE SERVICES, (C) ANY DEFECTS RELATED TO THE SERVICES WILL BE CORRECTED, (D) THE SERVICES ARE FREE OF COMPUTER BUGS, VIRUSES OR OTHER HARMFUL COMPONENTS, OR (E) ANY INFORMATION, CONTENT OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES WILL BE ACCURATE, USEFUL, TIMELY OR RELIABLE.
THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCT OR SERVICE ADVERTISED OR OFFERED THROUGH THE SERVICES, AND THE COMPANY WILL NOT BE A PARTY TO OR RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY PROVIDER OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY, OR ITS PARENTS, SUBSIDIARIES OR AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS OR AGENTS (COLLECTIVELY, THE “COMPANY PARTIES”), BE LIABLE FOR ANY LOSSES OR DAMAGES OF ANY KIND IN CONNECTION WITH THE ACCESS OR USE OF THE SERVICES, OR FROM ANY INFORMATION, CONTENT OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (II) ANY PROPERTY DAMAGE, DATA LOSS, PERSONAL INJURY, OR TECHNICAL MALFUNCTIONS RESULTING FROM THE ACCESS OR USE OF THE SERVICES, OR THE INTERRUPTION OR CESSATION OF THE SERVICES, OR (III) ANY DAMAGES OR LOSSES CAUSED BY OR RELATED TO THE UNAUTHORIZED ACCESS OR USE OF THE COMPANY’S SERVERS, SOFTWARE OR EQUIPMENT, OR ANY COMPUTER BUGS, VIRUSES, HARMFUL PROGRAMS OR SIMILAR MECHANISMS TRANSMITTED THROUGH OR IN CONNECTION WITH THE SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE TOTAL LIABILITY OF THE COMPANY AND THE COMPANY PARTIES TO YOU FOR ANY CAUSE OR CLAIM WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY DURING THE PERIOD OF YOUR USE OF THE SERVICES.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
Agreement to Pre-Arbitration Notification of Dispute
This Agreement provides for final, binding arbitration of all disputed claims (discussed immediately below). The Company and you agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings or any other proceedings authorized herein are initiated. In the event of a dispute, you shall send a letter to the Company briefly summarizing the claim and the request for relief. The letter shall be sent to sterkly LLC, 2647 Gateway Road #105 PMB 400, Carlsbad, CA 92009; Attn: Legal Department. If the dispute is not resolved within 60 days after the letter is sent, you may proceed to initiate arbitration proceedings or any other proceedings authorized herein.
The laws of the State of California and applicable federal law (including the Federal Arbitration Act) will govern this Agreement and any claim or dispute relating thereto or to your use of any of the Services, without regard to any conflicts of law provisions.
Agreement to Arbitrate Claims and Class Action Waiver
Except to the limited extent noted below, any controversy, claim or dispute arising out of or relating to this Agreement or the use of any of the Services shall be resolved by final and binding arbitration. The arbitration shall take place in San Diego County, California in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association (collectively, the “Rules”). Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant’s demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in a telephone hearing. In no event shall the parties be required to travel to San Diego to participate in the arbitration.
If you decide to commence arbitration, the provider will require you to pay a filing fee (which currently is $125 for claims under $10,000). If your filing fee is more than $125, the Company will reimburse you for any excess fee promptly after it receives notice of your arbitration. If the arbitrator ultimately rules in your favor, the Company will also reimburse you for the $125 base fee.
This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction.
The arbitrator shall determine any and all challenges to the arbitrability of a claim.
The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction.
Notwithstanding any provision in the Rules to the contrary, and with the exception of Desk Arbitrations, the Federal Rules of Evidence shall govern the admissibility of evidence in any arbitral proceeding.
Both you and the Company waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else.
Notwithstanding any provision in the Rules to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, collective, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
If a proposed class, consolidated, representative, collective, or private attorney general action arbitration is initiated notwithstanding the above-prohibition and it is finally determined by the arbitrator (or a court of competent jurisdiction) that the waiver specified herein is not enforceable, then the arbitration proceedings shall be bifurcated as follows and notwithstanding any provision in the Rules to the contrary: 1. The issue of arbitrability shall be determined by the arbitrator pursuant to the applicable rules and substantive law. 2. Assuming the arbitrator concludes that the arbitration may proceed, said arbitration shall be stayed, and the issue of whether to certify any alleged or putative class for a class action (or other representative) proceeding shall be presented to and decided by a court of competent jurisdiction. The arbitrator shall not have authority or jurisdiction to decide class certification (or any similar representative action) issues. The decision to certify or not certify a class action (or to otherwise permit the action to proceed on a representative basis) shall be appealable in the judicial proceedings consistent with the rules and law governing the appeals of interlocutory decisions or class certification (or similar) rulings specifically, if appropriate. 3. Once any issues regarding class certification (and/or similar representative requirements) have been finally decided by the court, the arbitrator will have authority to decide the substantive claims on an individual or a class (or other representative) basis, as may be determined and directed by the court.
The arbitrator(s) shall not have the power to commit errors of law or legal reasoning, make clearly erroneous factual findings, or abuse his or her discretion, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
Opting-Out of Arbitration and Class Action Waiver
You may elect to opt out (exclude yourself) from the final, binding arbitration procedure and the class action waiver specified in this Agreement by doing the following. Within 30 days of downloading the Software, you must send a letter to sterkly LLC, 2647 Gateway Road #105 PMB 400, Carlsbad, CA 92009; Attn: Legal Department that specifies (1) your name, (2) your mailing address, and (3) your request to be excluded from the final, binding arbitration procedure and class action waiver specified in this Agreement. All other terms shall continue to apply, including the requirement to pre-dispute notification and mediation, and non-arbitrated claims or disputes arising out of or relating to this Agreement or the use of any of the Services will be resolved exclusively in the state or federal courts in San Diego County, California with the parties consenting to such exclusive jurisdiction and venue. Notwithstanding any provision herein to the contrary, we agree that, if the Company makes any future change to the dispute resolution procedure and class action waiver provisions (other than a change to the Company’s address), you may reject any such change by sending a letter to the Company within 30 days of the change to the address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
Your letter must be postmarked by the applicable 30-day deadline to be effective. You are not required to send the letter by confirmed mail or return receipt requested, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove that the request was postmarked within the applicable 30-day deadline.
You agree to indemnify, defend and hold harmless the Company and the Company Parties from and against any and all claims, demands, obligations, losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees) arising out of or related to: (a) your access or use of any of the Services; (b) any activities or actions by you that violate this Agreement or any third party rights (including, without limitation, any copyright or proprietary rights, or any third party terms of service, privacy policies, licenses or agreements); and (c) any User Content posted or submitted by you on, through or in connection with the Services. Your indemnification obligation will survive this Agreement and your use of the Services.
If you have any questions about this Agreement or wish to receive a copy, please contact us as described below:
2647 Gateway Road #105 PMB 400
Carlsbad, CA 92009
Attn: Legal Department