Last Updated July 8, 2020
This agreement is between Knowhere App Inc. (“Knowhere”, “we” or “us”) and users (“Users” or “you”) of Knowhere’s products, services, and websites (collectively the “Service”).
In order to access the Service, you will have to create a Knowhere account. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. If you change your mobile phone number, you agree to update the mobile phone number associated with your account. You are solely responsible for the activity that occurs on your account. You must notify us immediately of any breach of security or unauthorized use of your account. Knowhere will not be liable for any losses caused by any unauthorized use of your account.
You must access and use the Service only for legal, authorized, and acceptable purposes. You will not use (or assist others in using) the Service in ways that: (a) violate, misappropriate, or infringe the rights of Knowhere, our Users, or others, including privacy, publicity, intellectual property, or other proprietary rights; (b) are illegal, obscene, defamatory, threatening, intimidating, harassing, hateful, racially, or ethnically offensive, or instigate or encourage conduct that would be illegal, or otherwise inappropriate, including promoting violent crimes; (c) involve publishing falsehoods, misrepresentations, or misleading statements; (d) impersonate someone; or (e) involve any non-personal use of the Service unless otherwise authorized by us.
You must not (or assist others to) access, use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sublicense, transfer, display, perform, or otherwise exploit the Service in impermissible or unauthorized manners, or in ways that burden, impair, or harm us, the Service, systems, our Users, or others, including that you must not directly or through automated means: (a) reverse engineer, alter, modify, create derivative works from, decompile, or extract code from the Service; (b) send, store, or transmit viruses or other harmful computer code through or onto the Service; (c) gain or attempt to gain unauthorized access to the Service or systems; (d) interfere with or disrupt the integrity or performance of the Service; (e) create accounts for the Service through unauthorized or automated means;
(f) collect the information of or about our Users in any impermissible or unauthorized manner; or (g) sell, resell, rent, or charge for the Service or distribute the Service.
You affirm that you are 13 years of age or older and are fully able and competent to enter into and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Service.
We may, without prior notice: change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may refuse to provide the Service to any User or permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if we believe that you have violated any provision of the Terms of Service, or for no reason. Upon termination, you continue to be bound by the Terms of Service. If we disable your account for a violation of the Terms of Service, you agree not create another account without our permission.
You are solely responsible for your interactions with other Users. Knowhere shall have no liability for your interactions with other Users, or for any User’s action or inaction.
4. User Content
Some areas of the Service allow Users to upload, submit, post, display, share or send content such as profile information, messages, images, audio, video, comments, questions, and other content or information (any such content a User uploads, submits, posts, displays, sends, shares or affirmatively chooses to make available on the Service is referred to herein as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by uploading, submitting, posting, displaying, sharing or sending User Content through the Service, you agree to the User Content license grant below and to allow your friends to receive, view, listen to, store, edit, and/or share your User Content. Knowhere has the right (but not the obligation) in its sole discretion to reject and/or remove any User Content that is uploaded, submitted, posted, displayed, shared or sent via the Service, including any User Content that it believes, in its sole discretion, violates the Terms of Service.
In connection with your User Content, you affirm, represent and warrant that your User Content and Knowhere’s use thereof as contemplated by the Terms of Service will not violate any law or infringe any rights of any third party, including any intellectual property rights and privacy rights. Knowhere assumes no liability for any User Content that you or any other User or third party uploads, submits, posts, displays, shares or sends over the Service. You shall be solely responsible for your User Content and the consequences of sharing it. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, or inappropriate for children, and you agree that Knowhere shall not be liable for any damages you allege to incur as a result of User Content.
By uploading, submitting, posting, displaying, sharing or sending any User Content to, on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Knowhere a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to host, store, use, display, reproduce, modify, edit, publish, distribute, and make derivative works of such User Content for the purpose of
operating, developing, providing, promoting, and improving the Service and researching and developing new ones.
Except for your User Content, the Service and all materials and information therein or transferred thereby, including, without limitation, information about your phone or device, or data that is otherwise generated, collected or transmitted through use of the Service, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Knowhere Content”), and all intellectual property rights related thereto, are the exclusive property of Knowhere and its licensors (including other Users who upload, submit, post, display, share or send User Content to or through the Service). Except as explicitly provided herein, nothing in the Terms of Service shall be deemed to create a license in or under any such Knowhere Content or any intellectual property rights therein, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Knowhere Content. Use of the Knowhere Content for any purpose not expressly permitted by the Terms of Service is strictly prohibited.
YOU AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, KNOWHERE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, SECURITY, OR NON-INFRINGEMENT. KNOWHERE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES IN THE SERVICE, USER CONTENT OR RESULTS THAT ARE OBTAINED FROM USE OF THE SERVICE (E.G., DATA, INFORMATION, LOCATION, ETC.), (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF KNOWHERE’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (V) OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE. WE ARE NOT RESPONSIBLE FOR AND ARE NOT OBLIGATED TO CONTROL THE ACTIONS OF, OR INFORMATION PROVIDED BY (INCLUDING USER CONTENT), OUR USERS OR OTHER THIRD PARTIES. KNOWHERE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND KNOWHERE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
7. Limitation of Liability
IN NO EVENT SHALL KNOWHERE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES IN THE SERVICE, USER CONTENT OR RESULTS THAT ARE OBTAINED FROM USE OF THE SERVICE (E.G., DATA, INFORMATION, LOCATION, ETC.), (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF KNOWHERE’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (VI) OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH THE TERMS AND CONDITIONS AND/OR THE SERVICE WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU PAID TO US HEREUNDER IN THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
The Service is controlled and operated from facilities in the United States. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations.
You agree to defend, indemnify and hold harmless Knowhere, its affiliates, and their respective directors, officers, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, and expenses (including but not limited to attorney’s fees) arising from: (i) your violation or alleged violation of the Terms of Service; (ii) your violation of any third-party right, including without limitation any right of privacy; (iii) your violation of any applicable law, rule or regulation; (iv) any claim that your User Content caused damage to a third party; or (v) any other party’s access and use of the Service with your account. This defense and indemnification obligation will survive the Terms of Service and your use of the Service.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Knowhere agree that the Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this agreement or any prior agreement; and claims that may arise after the termination of this agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to the Terms of Service, you agree to resolve any and all disputes with Knowhere as follows:
Initial Dispute Resolution: A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). Knowhere's address for Notice is: Knowhere App Inc., ATTN: Marcus Wiley, 1800 Century Park East #400, Los Angeles, CA 90067. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. The parties will make good faith efforts to resolve the claim directly.
Resolution shall be in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 or the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000, as applicable, in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. To start an arbitration with JAMS, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 555 West Fifth Street, 32nd Floor, Los Angeles, California 90013; and (c) send one copy of the Demand for Arbitration to Knowhere at 1800 Century Park East #400, Los Angeles, CA, ATTN: Marcus Wiley. You will be required to pay $250 to initiate an arbitration against us. If the arbitrator finds the
arbitration to be non-frivolous, Knowhere will pay all other fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of California, United States of America. You and Knowhere further agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND KNOWHERE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
30-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 above by sending (from the email address you use on Knowhere) written notice of your decision to opt out to firstname.lastname@example.org with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of the later of the Effective Date of these Terms or your first use of the Service; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Knowhere also will not be bound by them.
Changes to This Section: Knowhere will provide thirty (30) days' notice of any changes affecting the substance of this Arbitration and Class Action Waiver section by posting on the Knowhere Terms of Service website, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the Knowhere Terms of Service website or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section
entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Service.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your account or use of the Service.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service does not give rise to personal jurisdiction over Knowhere, either specific or general, in jurisdictions other than California. The Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Knowhere that arises in whole or in part from the Service and is not subject to arbitration shall be decided exclusively by a court of competent jurisdiction located in Los Angeles, California. If any provision of the Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms of Service, which shall remain in full force and effect. No waiver of any provision of the Terms of Service shall be deemed a further or continuing waiver of such provision or any other provision, and any failure by Knowhere to assert any right or provision under the Terms of Service shall not constitute a waiver of such right or provision. Knowhere reserves the right to amend the Terms of Service at any time without notice. It is your responsibility to review the Terms of Service for any changes. Your use of the Service following any amendment of the Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND KNOWHERE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.