Effective Date: December 2022
The Kolena Platform can be found at https://kolena.com and https://kolena.ai, and also includes all of the subdomains, mobile applications, any other media, location, application, etc. owned, managed, operated, etc. by Kolena. When referring to the infrastructure in this Agreement, we will be collectively referring to them as the “Platform”.
Kolena Corporation (“Kolena”) provides an open online content creation platform designed to allow Creators to build, design, publish, and sell courses, memberships, and services (“Content”) to their Members. Kolena offers this Content creation platform along with a number of additional services and tools (e.g., payment gateways, author and affiliate payouts) and the entire selection of tools and services offered via the Platform will be referred to in this Agreement as “Kolena Services”.
By using our Platform in any manner You are expressly agreeing to, and give Your consent to be governed by, these Terms. If You do not agree with these Terms or You do not wish to be bound by these Terms, You must not use or access Kolena’s Platform in any manner.
Kolena is not a educational institution. Creators and Members are not employees of Kolena. Kolena is not responsible for interactions between Creators and Members, with the exception of providing the technological means through which Creators may broadcast and otherwise make their Content available and, at each Creator’s election, for processing payments through Kolena’s payment gateway(s). Kolena is not liable for any disputes, claims, losses, injuries, or damage of any kind that may arise out of the Creator/Member relationship, including but not limited to, any Member’s reliance upon any information provided by a Creator or Creator Content at any time.
Members assume full responsibility for the disclosure and use of any other personal information the Member chooses to disclose to any Creator on the Platform.
II. Terms Applicable to All Users of the Kolena Platform
A. Age of Access
You must be at least 18 years old to use the Platform, or, if You are between the ages of 13 and 18, You must have your parent or guardian’s permission to use the Platform. By using our Platform, You are telling us by your actions that You have obtained that permission (You are ‘representing’ and ‘warranting’ that You have obtained the appropriate permissions to use our Platform). IF YOU ARE UNDER THE AGE OF 13 YOU MAY NOT USE OUR PLATFORM IN ANY MANNER NOR MAY YOU REGISTER FOR AN ACCOUNT.
B. License to Creators & Members
Kolena grants You a limited, non-exclusive license to access and use Kolena’s Platform for Your own personal and commercial purposes. This license is only for Your use and may not be assigned or sublicensed to anyone else, without Kolena’s express written consent. Except as expressly permitted by Kolena in writing, You will not try to reproduce Kolena’s Platform (legally that’s known as engaging in activity that would reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Platform). You also agree that in exchange for this license You will not engage in any activity that would interfere with or damage or harm the Platform. All rights not expressly granted by Kolena are reserved.
C. Code of Conduct
We have to set up some ground rules. Honestly, most of what we cover here should go without saying. However, it’s better to be upfront about things, rather than just assume everyone knows how they are expected to conduct themselves on our Platform.
- No Illegal Activity: This is about as simple as it gets. Do not use the Kolena Platform for any illegal activity. Period. You are not allowed to use our Platform to engage in any kind of conduct that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
No Fraud:Yes, this is probably covered in the No Illegal Activity section above, but we want to make this very clear. Fraud will not be tolerated in any capacity.
No Bad Code:Do not use the Kolena Platform to transmit, distribute, send, or otherwise expose the Platform or its Users to viruses, worms, or any other code that may be deemed dangerous, harmful, or destructive in any manner.
No Spamming: Seriously. No one likes spam. We don’t like spam. We’re pretty sure that You don’t like your inbox cluttered with spam. You may not use the Kolena Platform to engage in any activities that will result in sending spam to anyone on the Kolena Platform, including Kolena (and its employees), Creators, and Members.
Be Civil: We mean this. We’re an open platform allowing a myriad subject matter to be taught. Not all Content is for everyone. But the one thing we can all agree on is that when we use the Kolena Platform we are going to be always civil and respectful.
No Exploitation: You will not use the Kolena Platform to try to gather personal information on anyone outside of the limited permissible uses for offering or accessing Content.
No Impersonation: Imitation is the sincerest form of flattery, but not when it comes to representing that You are a part of Kolena. You will not impersonate anyone on the Kolena Platform, including Kolena (and its employees), Creators, and Members.
No Data Mining or Bots: You may not use any data mining, robots, or similar data gathering or extraction methods.
No Use Other Than Intended: You may not use the Platform or any Content contained on the Platform for any purposes other than intended.
No Prohibited Content: You may not use the Platform if Your Content contains material that is libelous, slanderous, pornographic, obscene, unlawful, threatening, hateful, violent, predatory, defamatory, or otherwise objectionable, all of which shall be determined in Our sole discretion.
If You violate this Code of Conduct, we reserve the right to remove You and any of Your Content from the Kolena Platform. Whether conduct violates our Code of Conduct will be determined in Kolena’s sole discretion.
III. Terms Applicable to Creators
Kolena may provide the opportunity for Creators to sell coaching offerings (“Coaching”) to Members in addition to the courses that the Creator sells on the Platform (together Coaching and courses are referred to as Content). All Coaching offerings shall be covered by this Agreement and are included in the definition of Content. Should the Coaching involve any third party content, You agree that Kolena is not responsible in any way for such content, and makes no representations or guarantees as to its merchantability or fitness of use. The delivery of the Coaching is the sole responsibility of the Creator.
B. Intellectual Property and Data Processing
In operating our Platform, it’s important for us to make it clear who owns what and who’s responsible for what. You are trusting us with Your content and consistent with Kolena’s genuine belief in transparency we want to make it simple for You to know exactly what You are getting into when You join the Kolena community.
1) Kolena Content: Content that Kolena uploads to the Platform, Kolena intellectual property and proprietary information, including all information, software, technology, data, logos, marks, designs, text, graphics, pictures, audio and video files, other data or copyrightable materials or content, and their selection and arrangement, is referred to herein as “Kolena Content”, and is and remains the sole property of Kolena. Kolena Content, including our trademarks, may not be modified by You in any way.
2) Your Content: Content that You upload to the Platform is and remains Your content. Kolena does not claim any intellectual property rights over the materials You upload to the Kolena Platform by virtue of Your use of Kolena Services. By uploading Your content to the Kolena Platform, You agree that:
- Kolena may review Your content for any reason, including compliance with our Code of Conduct and prohibited content requirements, but Kolena has no obligation to review anything that You upload.
- You are uploading Your content to the Kolena Platform at Your direction and Kolena does not in any way certify or provide approval or permission prior to You uploading Your content.
- Kolena may display Your content to other users (e.g. Your Members) via the Kolena Platform.
- You agree that by uploading Your content to Our Platform, You are allowing Us to store Your Content.
- You agree to provide Kolena with all necessary licenses, including a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use (e.g, to display or transmit) Your Content in furtherance of the Kolena Services (In other words, because You own Your Content, You have to give Us permission to display it, or to use it for internal operational purposes, like storing it on Our servers)
- You are responsible for and own, or have the rights to use, all of Your Content.
3) Content Free of Infringement of Any Third-Party Rights
- You agree that Your Content does not infringe upon anyone else’s intellectual property rights and that You have secured or obtained or received all necessary rights and permissions, as necessary, from any third parties who may own the content.
- In plain language, this means that if You’re using someone else’s work (including videos, text, charts, PowerPoints, etc.) in Your Content, You’ve gotten the content owner’s permission to use it. You wouldn’t want anyone selling any of Your Content without Your permission. If You are going to use something that You didn’t create, make sure You can demonstrate that You have the right to use it before You make it a part of Your Content.
4) Processing of Personal Information by Creators
- Creators are responsible for protecting all personal information they provide to, or receive from, Kolena in connection with the use of Kolena Services.
- Creators are considered controllers or “owners” of the personal information they collect from and about Members. Creators are also responsible for providing an appropriate privacy notice to their Members, respecting their Members’ privacy rights in accordance with applicable law, and providing access to or deleting Members’ personal information if they request and as required by applicable law.
IV. Kolena’s General Rights In Operating Its Platform
Kolena Reserves the Following Rights Over the Entire Kolena Platform:
- Kolena may modify, terminate, or refuse to provide Kolena Services at any time for any reason, without notice.
- Kolena may remove anyone from the Kolena Platform at any time for any reason, solely in Kolena’s discretion. This right is not modified by any other section of this Agreement.
- Kolena reserves the right to access Your account, Membership, and Content in order to respond to requests for technical support, to maintain the safety and security of the Kolena Platform, and for other legitimate business purposes, as necessary, in Kolena’s discretion.
- Kolena may, but has no obligation to, monitor any content that appears on the Kolena Platform or review any conduct occurring through the Platform, including any interactions between Creators and Members and Kolena employees.
- Kolena reserves the right to modify, suspend, or alter its refund policy, at its sole discretion.
- If You close Your account or terminate Your membership, Kolena may keep a copy of Your content after termination. You grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for compliance with any relevant laws and regulations and for our internal business purposes, subject to applicable law.
- Kolena reserves the right to remove You and Your Content without warning if You violate any of the provisions of this Agreement.
- Kolena has, in its sole discretion, an absolute right to modify, change, alter, suspend, or terminate any provision of this Agreement without warning at any time.
V. Kolena’s Copyright, DMCA, Trademark, and Takedown Policy
Kolena takes a firm stance against anyone who is infringing upon anyone else’s intellectual property. This Platform is all about You transforming Your knowledge into Content. We draw a hard line when the Kolena Platform is used to exploit someone else’s intellectual property.
A. Copyright Violations and the DMCA
If Kolena has a good faith belief that any content (including Creator Content) appearing on its Platform violates any copyrights or has been illegally copyrighted, Kolena reserves the right to remove, block, or otherwise ‘take down’ the content. Kolena also reserves the right to remove from the Platform any Creators, Members, or other parties, who are repeat offenders of the Kolena repeat offender policy.
1. Reporting Copyright Infringement under the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”):
- Kolena provides an online form for submitting copyright infringement notices under DMCA. If you believe that content on the Kolena Platform is infringing on your copyrights, please email Kolena’s a copyright infringement notice form to forward your notice to Kolena’s designated agent for review. (For trademark infringement claims, refer to Section V(B) below).
- If your submission contains all of the information required by the form and complies with the DMCA, Kolena will expeditiously remove or disable access to the content alleged to be infringing.
- Please note that when Kolena removes content in response to a DMCA notice, Kolena will attempt to contact the party who posted the content You report as infringing and provide information about the notice and removal, including information about how to submit a counter notice. Kolena may also send a copy of any notices received to the affected party.
2. DMCA Counter Notice Procedure
- If Your content is removed due to the receipt of a DMCA notice and you believe that your content was wrongly removed, you may send Kolena what is known as a Counter Notice.
- Your Counter Notice must contain:
- A physical or electronic signature
- Identification of what was removed and the location where the material appeared before it was removed
- A statement under penalty of perjury that you have a good faith belief that the material was removed as a result of mistake or misidentification
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district of Nevada and that you will accept service of process from the person who provided notification
- Your Counter Notice must be sent to Kolena’s designated agent at info@Kolena.com.
- Please note that a copy of any Counter Notice received will be sent to the party who reported the content as infringing.
- Repeat Infringement Policy
- As we stated above, Kolena really doesn’t look favorably on anyone who is using someone else’s intellectual property without permission. Should Kolena receive two or more DMCA complaints regarding any Creator, Kolena may simply remove that Creator from the Kolena Platform without further warning. Note: as we state in our Kolena Rights section, we still reserve the right to remove any Membership at any time for any reason. This Repeat Infringement section does not change that right in any way.
B. Trademark Violations
Kolena reserves the right to remove access to content that it knows, or has reason to know, violates the rights of trademark owners. Please note that Kolena will send a copy of any trademark infringement claim received to the user who posted the content you report as infringing.
1. Reporting Trademark Infringement
- Kolena provides trademark owners an online form for submitting information to enable Kolena to evaluate trademark infringement claims. If you believe that a user of the Kolena Platform is infringing your registered trademark, please complete Kolena’s trademark complaint form to forward your claim to Kolena’s team for review. (For copyright infringement claims, refer to Section V(A) above).
- If your submission contains all of the information required by the form and demonstrates that a user of the Kolena Platform is infringing your registered trademark by using your trademark in connection with the goods or services covered by your registration, Kolena will take appropriate action, which may include removing access to the infringing content and/or terminating the user.
- Do note Kolena is not a court of law and there may be times that we cannot take action based on the information that you submit in our online form. In such cases, we may refuse to take action, and if warranted, you may resubmit the online form with additional information and materials requested by the form that were not previously submitted.
- Counter Notice Procedure
- If Your content is removed due to the receipt of a Trademark notice, you may send Kolena a counter notice if you believe that your content was wrongly removed.
- If Kolena receives a counter notice that denies the infringement claim and asserts that it has a good faith basis for doing so, Kolena may choose not to remove the allegedly infringing content but will put you in contact with the user so that you and the user can address the matter directly.
VI. Third Party Communications
By using Kolena’s Platform, You may receive communications from third parties (e.g. a Creator may communicate with a Member). Kolena is not responsible for these communications and shall not have any liability in connection with them. You are solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any such third-party communications. Kolena assumes no responsibility for verifying, and makes no representations or warranties regarding the identity or trustworthiness of the source or content of any such third-party communications.
VII. Third Party Offerings
Through the Kolena Platform, You will have the ability to access content, links to websites, and services provided by Creators, Members, and other third parties (“Third Party Offerings”). Your use of any Third-Party Offerings provided on this Platform or a third party website is at Your own risk. Kolena does not monitor or have any control over and makes no claim or representation regarding Third Party Offerings and accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third Party Offerings. You should review applicable terms and policies, including privacy and data gathering practices, of any third party, and should make whatever investigation You feel necessary or appropriate before proceeding with any transaction with any third party.
Kolena Payment Gateway
- Appointment of Kolena as a Limited Payment Collection Agent for Kolena Payment Gateways: Each Creator collecting payment for services provided on the Kolena platform via Kolena Payment Gateways hereby appoints Kolena as the Creator’s payment collection agent solely for the limited purpose of accepting funds from Members purchasing such services.
- Each Creator agrees that payment made by a Member through the Kolena Payment Gateways shall be considered the same as a payment made directly to the Creator, and the Creator will provide the purchased services to the Member in the agreed manner as if the Creator has received the payment directly from the Member. Each Creator agrees that Kolena may refund the Member in accordance with the Terms. Each Creator understands that Kolena’s obligation to pay the Creator is subject to and conditional upon successful receipt of the associated payments from Members. Kolena guarantees payments to Creators only for such amounts that have been successfully received by Kolena from Members in accordance with these Terms. In accepting appointment as the limited payment collection agent of the Creator, Kolena assumes no liability for any acts or omissions of the Creator.
- Each Member acknowledges and agrees that Kolena acts as the Creator’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Creator. Upon payment of the funds to Kolena, the Member’s payment obligation to the Creator for the agreed amount is extinguished, and Kolena is responsible for remitting the funds to the Creator in the manner described in these Terms, which constitute Kolena’s agreement with the Member. In the event that Kolena does not remit any such amounts once successfully received from the Member, the Creator will have recourse only against Kolena and not the Member directly.
All Kolena Payment gateway fees will be deducted before the funds are sent to the Creator. The fees associated with Kolena Payments are subject to change, in Kolena’s sole discretion. By using Kolena Payments, You agree to the fees as set by Kolena.
Creators may be charged a fee for any chargeback on credit card, debit card, or PayPal transaction that is processed through the Kolena Payment Gateways. This fee is deducted from Your membership payout but is returned to You if You win the dispute.
Please note that this section does not apply to US sales tax. For US sales tax, please refer to the article on Sales Tax and Kolena. When it comes to responsibilities for collecting, reporting and remitting taxes to respective tax authorities, a distinction should be made between:
- any fees paid by the Creators to Kolena, and
- the Content sold by Creators to Members through the Kolena platform.
Kolena is not responsible for setting the pricing on a Creator’s Content. Prices for Creator Content are set by the Creator.
X. Account Ownership Disputes
In the unlikely event that there is a dispute over the ownership of an account, Kolena has the right to request additional information from You to determine ownership and settle the dispute. The information that We may request to assist in resolving ownership disputes includes, but is not limited to, the following:
- a copy of Your photo ID;
- Your business documents, including a Charter, Certificate of Incorporation, LLC Agreement, business license, or other documentation showing ownership of Your entity;
- Your billing information and details;
- Certified copies of your tax forms; and
- Other documentation as we deem necessary to settle the dispute
- Should a dispute arise, Kolena reserves the right determine the account ownership in its sole judgment, and the ability to transfer the account to the rightful owner, unless otherwise prohibited by law
XI. The Exchange Platform
Kolena also operates the Kolena Exchange (“Exchange”) platform, which is a part of the overall Kolena Platform. In order to participate in Exchange, the Creator must agree to the Exchange platform agreement. As a part of the Kolena Platform, Exchange is covered by this Agreement. The Exchange agreement does not supersede this Agreement. The terms in this Agreement apply in full force to the use of Exchange. However, should this Agreement conflict with the Exchange agreement, the Exchange agreement shall take precedence.
- Kolena charges Creators fees to access particular features of the Kolena Platform through paid subscription plans, while other features are offered free of charge through Kolena’s free plan.
- Pricing for the Kolena Platform is described on our pricing page.
- Depending on the payment processing method, Kolena may charge transaction fees. You agree to pay all fees and charges that are made to Your account and that You are solely responsible for payment of these fees and charges.
- Paid plans are automatically charged at the beginning of each billing period. Unless You submit a cancellation request to us in writing via email (finance@Kolena.com) or directly through Your account prior to the start of the billing period, Your plan will be charged upon the anniversary of its billing period. You agree that Kolena may charge any recurring service to the credit card or debit card that You provide.
- Should You not authorize payment or are otherwise not current on Your payments for Kolena Services, Kolena may restrict Your Platform access until Your account becomes current and paid in full.
- Kolena reserves the right to pursue fees owed using collection methods which may include charging other payment methods on file with Kolena and/or retaining collection agencies or legal counsel.
- Kolena reserves the right to offer custom plans and pricing in addition to what is offered on the pricing page. Custom plans may also include custom billing and payment terms, including billing periods and renewals, that are different from our standard terms.
XIII. Refund Policy
We want You to be happy with the Kolena’s Platform. If You’re not feeling excited about joining the Kolena community, we have some options for You regarding Your plan.
- Monthly Plans
- Creators on monthly paid plans are entitled to a full no-questions-asked refund within thirty (30) days of first signing up for a paid plan or upgrading to a higher priced plan. Simply let us know in writing that You’re canceling the plan within thirty (30) days of Your sign-up.
- Annual Plans
- Creators on annual plans are entitled to a full no-questions-asked refund within thirty (30) days of first signing up for an annual plan. Simply let us know in writing that You’re canceling the plan within thirty (30) days of Your sign-up.
- Abuse of the Refund Policy
- Kolena reserves the right to refuse refunds to Creators who abuse this Refund Policy. Examples of abuse include, but are not limited to, requesting refunds for multiple Memberships or requesting refunds in consecutive months.
- In general, all Members purchasing courses that are a part of the Kolena Payment Gateway are entitled to a ten (10) day refund from the date of purchase.
- If a Creator has been allowed to offer a refund period that differs from Kolena’s general policy, the Creator must provide notice to Members prior to the purchase of the course.
- Kolena reserves the right to refuse refunds to Members who abuse this Refund Policy. Examples of abuse include, but are not limited to, requesting refunds for multiple memberships or requesting refunds in consecutive months.
- Regardless of any other section to the contrary in this Agreement, Kolena does not establish, maintain, or control refunds or a refund policy for any Content that was processed through a Custom Payment Gateway, including courses.
- Creators (regardless of whether they use Kolena Payment Gateway are solely responsible for setting the refund policy regarding the sale of Coaching offerings.
- The Creator must provide notice to Members regarding their refund policy prior to the purchase of the Coaching offering.
- Regardless of any other section to the contrary in this Agreement, Kolena’s refund policy does not cover the provision of Coaching offerings provided by Creators to Members.
- General Provisions
- It is the Member’s responsibility to understand the refund policy for Content prior to purchasing such Content from a Creator.
- Kolena reserves the right to provide a refund to any Member at any time in Kolena’s sole discretion.
XIV. Cancellation and Deletion
- If You cancel a paid plan, the cancellation will become effective at the end of the then-current billing cycle. When You cancel a paid plan, Your account will revert to a free account and Kolena may disable access to features available only to paid plan users.
- You may delete Your account at any time.
b) Any account on the free plan may be deleted if it remains inactive (e.g., the user fails to log in) for a continuous period of at least six (6) months. Activity will be determined by Kolena in its sole discretion.
- Accounts on paid plans will be considered active accounts unless You explicitly ask us to delete Your account.
- If Your account is deleted (regardless of the reason), Your Content may no longer be available. Kolena is not responsible for the loss of such content upon deletion.
- Upon deletion of Your account (regardless of the reason), all licenses granted by Kolena will terminate.
3. Effect of Cancelation/Deletion
- Should a Membership, course, Creator account, or Member account be canceled or deleted, the Creator or Member may no longer have access to Kolena Content and Content may be irrecoverable. Kolena shall not be liable to any party in any way for the inability to access Content arising from any cancelation or deletion, including any claims of interference with business or contractual relations.
XV. Errors and Corrections
Kolena does not guarantee that the Platform or any services offered through the Platform will be error-free or otherwise reliable, nor does Kolena guarantee that defects will be corrected or that any offerings through the Platform will always be accessible. Kolena may make improvements and/or changes to the Platform and their features and functionality at any time, and will use commercially reasonable efforts to avoid disrupting peak hours, though some downtime may occur. Errors in Content are the responsibility of the Creator who owns the Content.
We reserve the right to amend the Platform, and any service or material we provide on the Platform, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, we may restrict access to some or all of the Platform to Creators and Members.
XVI. Limitations of Liability
In running the Platform, we require that You understand and agree that Kolena is not liable for a number of things, including Your breach of this Agreement and losses that may result from Your use of the Platform. We also require that You understand and agree that the Platform is offered As Is and may not always be 100% perfect or reliable and that Kolena doesn’t warrant or guarantee that it will always be free of errors or defects. Any claims for damages against Kolena will be limited to a portion of the fees You have paid us.
Our limitations of liability are as follows:
- You agree that Kolena, including its employees, officers, directors, and agents, shall not be liable for any kind of loss, injury, claim, or damages resulting from Your use of the Kolena Platform.
- You agree that Kolena shall not be liable for any injuries, losses, claims, or damages that result from Your use or engagement with third party content, downloads, or communications.
- Kolena is not liable for any losses or damage caused by any viruses, distributed denial of service attacks, and any and all other malicious computer code. Malicious computer code means computer code or other mechanisms of any kind designed to disrupt, disable or harm in any manner the operation of any software or hardware or other business processes or to misuse, gain unauthorized access to or misappropriate any business or personal information, including worms, bombs, backdoors, clocks, timers, or other disabling device code, or designs or routines that cause software or information to be erased, inoperable, or otherwise incapable of being used, either automatically or with passage of time or upon command.
- Kolena does not guarantee that any files available for downloading from the Platform will be completely free from viruses or other harmful computer code.
- The Kolena Platform is provided to You on an “As Is, As Available” basis. As such, You agree to have an external method of recovering any lost data that may be uploaded to the Kolena Platform.
- Kolena disclaims any warranties to the Platform and the content contained therein, including warranties for merchantability, fitness for a particular purpose, non-infringement, or title.
- Kolena shall not be liable for any special, direct, indirect, incidental, punitive, or consequential damages, resulting from the use of or inability to use the Platform.
- You agree that Kolena shall not be liable for any losses, injuries, claims, or damages from Your violation or breach of this Agreement. You agree to indemnify, defend, and hold harmless Kolena, its present and future officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the Platform from and against all claims, losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement by You or arising from or related to Your use or misuse of the Platform (including, without limitation, use in contravention of this Agreement, other Kolena policies, and copyright and other intellectual property law)
- You are solely responsible for ensuring that Your use of the Platform complies with applicable law and does not violate the rights of any third party, including, without limitation, intellectual property rights. You assume all liability for any claims, suits or grievances filed against You, including, but not limited to, all damages related to Your use of the Platform.
- You may not assign Your rights under this Agreement without Kolena’s prior written consent.
- Should Kolena’s limitation of liability not be applicable, Kolena’s sole obligation to You, or any third party, for damages shall not exceed the amounts paid by You to Kolena over the prior twelve (12) months directly preceding Your claim, unless otherwise required by law.
- You agree that Kolena shall not be liable for any content that appears on the Platform.
- Except as set forth herein, nothing express or implied in this Agreement is intended or implied to confer, and nothing herein shall confer, any rights, remedies, liabilities, or obligations whatsoever upon any person or entity.
- You agree that any cause of action or claim that You may have against Kolena must be brought against us within one (1) year after the cause of action or claim arises. Should You not commence such cause of action or claim within this time period, it shall be barred.
XVII. Remedies for Violations
Kolena reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including but not limited to removing Creators and Members from the Platform, the right to block access to the Platform from a particular IP address or other user identifier, or to refer the violation to the appropriate law enforcement authorities.
XIX. Governing Law and Jurisdiction; Disputes and Arbitration
- This Agreement shall be governed in accordance with the laws of the State of Nevada without regard to its conflicts of laws principles. Any action arising out of or relating to this Agreement shall be filed only in the state or federal courts located in the County of Clark in the State of Nevada. You consent and submit to the exclusive personal jurisdiction of such courts for the purpose of litigating any such action.
- Any dispute, controversy, proceeding, or claim arising out of or in connection with or relating to this Agreement, shall be resolved by binding confidential arbitration by Nevada’s Board of Governors pursuant to its Nevada Arbitration Rules Procedures, except as provided herein.
- The arbitration will be conducted in Clark County, Las Vegas, Nevada, unless You and Kolena agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing Kolena from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, dilution, or violation of our data security, intellectual property rights, or other proprietary rights.
- You and Kolena agree to waive the right to trial by jury. You further agree that any proceedings to resolve any disputes shall be done solely on an individual basis and that You will not seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which You act or propose to act in a representative capacity.
- You also agree that no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of Kolena and all parties to any such proceeding.
XX. California Civil Code Section 1789.3
California websites users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254 or (800) 952-5210. Complaints or requests for further information can be sent to the address listed in the Contact Us section of this Agreement.
XXII. Entire Agreement; Severability of Provisions; No Waiver
- If any provision of this Agreement is deemed unlawful, void, or unenforceable by a court of law exercising proper jurisdiction, that provision shall be deemed severed from the remaining provisions and shall not affect their validity and enforceability.
- No waiver of any provision hereof shall be valid unless in writing signed by the parties. Any failure to enforce any right or remedy hereunder shall not operate as a waiver of the right to enforce such right or remedy in the future or of any other right or remedy.
You represent and warrant that You are not, nor are You owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Department of the Treasury’s Office of Foreign Asset Control (“OFAC” ), or any similar list or by any law, order, rule or regulation or any Executive Order of the President of the United States, including Executive Order 13224, as a “Specially Designated National and Blocked Person”, terrorist, or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a (“Prohibited Person”); (ii) You are not (nor are You owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; (iii) You (and any person, group, or entity which You control, directly or indirectly) have not conducted nor will conduct business nor have engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including, without limitation, the making or receiving of any contribution of funds, good or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation; (iv) You are not prohibited by any sanctions program as maintained by OFAC from transacting with Kolena, including those sanctions programs currently in effect with respect to Cuba, Iran, North Korea, Syria, Venezuela, or Crimea. In connection with the foregoing, it is expressly understood and agreed that the representations and warranties contained in this subsection shall be continuing in nature.
The headings and titles of sections to this Agreement have been inserted for the convenience of reference for the parties and are for informational purposes only and shall not be deemed to be a part of the language of this Agreement. Neither You nor Kolena shall rely on, or interpret substantively, the headings when construing the meaning of each section or the Agreement as a whole.
Whenever such wording may appear in this Agreement, words in the singular shall mean and include the plural and vice versa and words in the feminine shall mean and include the masculine and vice versa.
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