Effective Date: March 2021
Terms and Conditions
- License Grant. This TOU provides to You a personal, revocable, limited, non-exclusive, royalty-free, non-sublicenseable, non-transferable license to use the Website conditioned on Your continued compliance with the terms and conditions of this TOU. You may print and download materials and information from the Website solely for Your personal use, provided that all hard copies contain all copyright and other applicable notices contained in such materials and information. The content layout, formatting, and features of and access privileges for the Website shall be as determined by KOLENA in its sole discretion.
- Restrictions. Notwithstanding the foregoing, You may not modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove or alter any proprietary notices or labels, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use in any manner not expressly permitted herein the Website. Specifically, and by way of illustration and not limitation, You may not separate and use any graphics, photographs, or other audio, visual, or video elements from the accompanying text or material without the prior express written permission of KOLENA and/or its licensor(s). If you share any articles or published content from the Website, you may only do so through the Website’s designated “share” functionality. Moreover, You may not (a) use any “deep link,” “page scrape,” “robot,” “spider,” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Website or in any way reproduce or circumvent the navigational structure or presentation of the Website to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Website, (b) attempt to gain unauthorized access to any portion or feature of the Website or any other systems or networks connected to the Website or to any KOLENA server or to any of the services offered on or through the Website, by hacking, password “mining,” or any other illegitimate or prohibited means, (c) probe, scan, or test the vulnerability of the Website or any network connected to the Website, nor breach the security or authentication measures on the Website or any network connected to the Website, (d) reverse look-up, trace, or seek to trace any information on any other person or entity accessing or using the Website, (e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Website or KOLENA’s systems or networks or any systems or networks connected to the Website, (f) use any device, software, or routine to interfere with the proper working of the Website or any transaction conducted on the Website, or with any other person’s use of the Website, (g) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise Your identity or the origin of any message or transmittal You send to KOLENA on or through the Website, (h) use the Website to harvest or collect e-mail addresses or other contact information; or (i) use the Website in an unlawful manner or in a manner that could damage, disparage, or otherwise negatively impact KOLENA.
- User Obligations. By downloading, accessing, or using the Website in order to view any information and materials, register or enter into a transaction with or through KOLENA for any reason, or submit information of any kind, You represent that You are at least eighteen (18) years of age (or the legal age of majority (whichever is greater)) and will, at all times, provide true, accurate, current, and complete information when submitting information or materials on the Website, including, without limitation, when You provide information via a Website registration or submission form. If You provide any false, inaccurate, untrue, or incomplete information, KOLENA reserves the right to terminate immediately Your access to and use of the Website and to seek other remedies or damages available under law or equity. In addition, You agree to abide by all applicable local, state, national, and international laws and regulations with respect to Your use of the Website. You also acknowledge and agree that use of the Internet and access to the Website is solely at Your own risk. While KOLENA has endeavored to create a secure and reliable Website, You should understand that the confidentiality of any communication or material transmitted to/from the Website over the Internet or other form of global communication network cannot be guaranteed. Accordingly, KOLENA is not responsible for the security of any information transmitted to or from the Website. You must make Your own determination as to such issues. If You wish to communicate with KOLENA through other means, please contact KOLENA at email@example.com or 425.276.2523.
- Other Terms and Conditions. Additional notices, terms, and conditions may apply to participation, subscription, or a particular program, service, event, or solution. Moreover, if You are using the Website on behalf of an entity, please note that such entity may have a separate agreement with KOLENA regarding access and usage privileges to the restricted member portal areas of the Website. You agree to abide by such other notices, terms, and conditions or agreement, as applicable. If there is a conflict between this TOU and other notices, terms, and conditions posted to the Website, KOLENA shall resolve any conflict in good faith in its sole discretion but the latter terms shall generally control with respect to such participation, subscription, or program, service, event, or solution.
- Links to the Website. KOLENA permits (plain) hypertext links to the primary landing page for the Website as well as to articles published on the Website. With respect to any such link(s), this TOU provides to you a personal, revocable, limited, non-exclusive, non-sublicenseable license to post a plain text link to the Website from your member profile page or social media networks. Any links to the Website should not suggest that KOLENA promotes or otherwise endorses or is affiliated with any third-party products, services, programs, causes, campaigns, websites, or information unless KOLENA has provided prior written consent for such promotion, affiliation, or endorsement.
- Member Profiles. KOLENA makes available through the Website member profiles (the “Profiles”). In addition to any other terms and conditions set forth in this TOU, You acknowledge and agree that the Profiles shall be used only for personal and non-promotional purposes and that any information of the Profiles shall not be further published, displayed, or made accessible. Accordingly, unless KOLENA has provided its prior written consent, You acknowledge and agree that the contents of the Profiles may not, in whole or in part, be reproduced, copied, disseminated, entered into a computer database, used as part of or in connection with a mailing list, or otherwise utilized, in any form or manner or by any means inconsistent with this TOU. You also acknowledge that a person or entity’s Profile represents only that such person or entity is registered with and an active member of the KOLENA online community. KOLENA makes no further representations or warranties regarding any such person or entity (or the related information) listed in the Profile, and any information made available through a Profile is provided on an “AS-IS” and “AS-AVAILABLE” basis without warranty of any kind.
- User-Name Handling Policy. Registration may be required for access to certain areas of the Website. These restricted areas, pages, or portals may further require both a user-name and a password or adherence to other particular access requirements as designated by KOLENA. Only one User can use one user name and password and, thus, one account. By limiting access, it helps avoid unauthorized usage by other persons, institutions, or entities because anyone with knowledge of both Your user name and password can gain entry to the restricted portions of the Website and to Your account. Accordingly, by using the Website, You agree to consider Your user name and password as confidential information and to keep Your user name and password confidential. You also agree not to use another User’s user name and password. You will immediately notify KOLENA if You become aware of any loss or theft of Your password or any unauthorized use of Your user name and password. KOLENA will not be liable for any loss or damage arising from Your failure to comply with these obligations.
- Postings. The Website may contain blogs, forums, message boards, portals, comment areas, questionnaires and other interactive features and functionality where Users can share and post information and/or photos, video, or audio. To the extent that the Website contains such communication forums and online communities (referenced collectively herein as “Online Communities”), You agree that by using the Website You will not upload, post, display, or transmit any of the following materials on the Website’s Online Communities:
- anything that interferes with or disrupts the Website or the operation thereof,
- statements or material that defames, harasses, abuses, stalks, threatens, intimidates, or in any way violates the rights of others,
- unauthorized copyrighted materials or any other material that infringes on the intellectual property rights, trade secrets, or privacy of others,
- statements or material that violates other contractual or fiduciary rights, duties, or agreements,
- statements or material that is bigoted, hateful, or racially offensive,
- statements or material that encourages criminal conduct or that would give rise to civil liability or otherwise violates any law or regulation in any jurisdiction,
- statements or material that constitutes anti-competitive collaboration and/or antitrust violations,
- statements or material that contains vulgar, obscene, profane, or otherwise objectionable language or images that typically would not be considered socially or professionally responsible or appropriate in person,
- statements or material that harms minors,
- statements or material that impersonates any other person or entity, whether actual or fictitious, including, without limitation, employees and representatives of KOLENA,
- statements or material that misrepresents Your affiliation with any entity and/or KOLENA,
- anything that violates the privacy or publicity rights of any other person, including, without limitation, posting any personally identifying information of another individual,
- chain letters or pyramid schemes,
- statements or materials that are deceptive or misleading,
- statements or material that constitutes junk mail, spam, or unauthorized advertising or promotional materials,
- statements or material that are “off-topic” for a designated community, and
- files that contain malicious code, viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer, network, or the Website.
10. Permission to Use Postings. Forums are the resources and property of KOLENA and/or its licensors and You will not have any proprietary interest in any Forum. Moreover, by submitting content, information, or a work of authorship of any type ( “Posting”) to a Forum/Group or other portion of the Website or by otherwise using the Website to transmit or display a Posting, You automatically grant KOLENA a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, publish, translate, create derivative works from, sublicense (or further license), distribute, transmit, perform, and display such content or information (in whole or in part) worldwide and/or to incorporate into (or combine with) other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content or information. Without limitation of the foregoing, KOLENA may require You to agree to a separate license agreement for any Posting. You represent that you have all necessary rights to make the Posting available to KOLENA and a Forum, and you also acknowledge that such Postings are non-confidential for all purposes and that KOLENA has no control over the extent to which any idea or information may be used by any party or person once it’s posted or displayed. Accordingly, notwithstanding this right and license, it is understood that by merely permitting Your information, content, and materials to appear on the Website KOLENA has not become and is not a publisher of such information, content, and materials and is merely functioning as an intermediary to enable You to provide and display a Posting. Moreover, KOLENA assumes no responsibility for the deletion of or failure to store any Posting and recommends that You do not post, display, or transmit any confidential or sensitive information.
11. No Pre-Screening of Postings. KOLENA is not responsible for screening, policing, editing, or monitoring Your or another User’s Postings and encourages all of its Users to use reasonable discretion and caution in evaluating or reviewing any Posting. Moreover, and except as provided below with respect to KOLENA’s right and ability to delete or remove a Posting (or any part thereof), KOLENA does not endorse, oppose, or edit any opinion or information provided by You or another User and does not make any representation with respect to, nor does it endorse the accuracy, acceptability, completeness, timeliness, or reliability of any advice, opinion, statement, or other material displayed, uploaded, or distributed by You or any other User. Nevertheless, KOLENA reserves the right to monitor, delete, or take other action with respect to Postings (or parts thereof) that KOLENA believes in good faith violate this TOU and/or are, or are potentially, unlawful or harmful to KOLENA or its affiliates, volunteers, services, or goodwill. If You violate this TOU, KOLENA may, in its sole discretion, delete the unacceptable content from Your Posting, remove or delete the Posting in its entirety, issue You a warning, and/or terminate Your use of the Website. Moreover, it is a policy of KOLENA to take appropriate actions under the Digital Millennium Copyright Act (“DCMA”) under U.S. Copyright Law and other applicable intellectual property laws. If You become aware of Postings that violate these rules regarding acceptable behavior or content, You may contact KOLENA and KOLENA will take action pursuant to its DMCA Takedown Policy.
13. GOVERNMENT RIGHTS. The use of the Website including, without limitation, its reproduction and display by the United States of America and/or any other country and its or their respective instrumentalities (including prime contractors or any other contractor at any tier), agencies, or offices, regardless of form (collectively, the “Government”), shall be governed by this TOU. Accordingly, the Website is provided to the Government with LIMITED RIGHTS and/or RESTRICTED RIGHTS (as applicable). Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (g) of the Rights in Data – General clause at 48 C.F.R. § 52.227-14, subparagraphs (b)(1) and (2) of the Commercial Computer Software License clause at 48 C.F.R. § 52.227-19, or subparagraph (b)(1) of Technical Data–Commercial Items clause at D.F.A.R.S. § 252.227-7015, as applicable. Moreover, all KOLENA products and materials, including the Website, are commercial in nature and were not first produced in the performance of any Government contract. Accordingly, the data, software and documentation available through the Website Data are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or D.F.A.R.S. § 252.227-7014, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to other end users pursuant to the terms and conditions herein. For any use of the Website that would require compliance by KOLENA with a particular Government requirement not identified herein or that would affect KOLENA’s rights, the applicable Government entity, agency, or office must notify KOLENA of said Government requirement and obtain a waiver or exemption from such requirements for the benefit of KOLENA before any government access to the Website. Any Government Licensee shall also affix the following “Government Rights Notice” to any copy of any information downloaded or printed from the Website made available to any Government Authorized User:
(a) Data. This data is submitted with limited rights and is subject to the terms of the Kolena Exchange Inc. (“KOLENA’s”) current commercial license agreement. This data may be used by the Government with the express limitation that the Government will not, without written permission of the KOLENA, be used in any manner prohibited by KOLENA’s current commercial license agreement.
(b) Software. Use, reproduction, or disclosure is subject to restrictions set forth in KOLENA’s current commercial license agreement.
(c) This notice shall be marked on any reproduction of this data, in whole or in part.
14. Feedback. KOLENA welcomes Your feedback and suggestions about KOLENA’s programs or services or with respect to how to improve the Website. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to KOLENA, You represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that You have all rights necessary to convey to KOLENA and enable KOLENA to use such Feedback. In addition, any Feedback received through the Website will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for KOLENA to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and You hereby waive any claim to the contrary.
15. Third Party Products and Services. KOLENA, in its sole discretion, may feature and/or post the advertisements or logos of third parties on the Website and/or feature or utilize on the Website materials, programs, products, and services provided by third parties over which KOLENA has no control. KOLENA makes no representations with respect to, nor does it guarantee or endorse, the quality, non-infringement, accuracy, completeness, timeliness, reliability, or correct sequencing of such third-party materials, programs, products, and services or any other materials, programs, products, and services which such third-party materials, products, and services may access. Your correspondence or any other dealings with third parties found on the Website are solely between You and such third party. Accordingly, KOLENA expressly disclaims responsibility and liability for all third-party provided materials, programs, products, and services contained on or accessed through the Website, and You agree that KOLENA shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such third parties on the Website.
16. Links to Other Websites. KOLENA may provide links, in its sole discretion, to other sites on the World Wide Web for Your convenience in locating or accessing related information, products, and/or services. These sites have not necessarily been reviewed by KOLENA and are maintained by third parties over which KOLENA exercises no control. Accordingly, KOLENA expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites. Moreover, these links do not imply an endorsement with respect to any third party or any website or the products or services provided by any third party.
17. Mobile Services. The Website may offer certain tools or services that are available to You via Your mobile phone or other mobile device (collectively, “Mobile Services”). Please note that Your mobile carrier’s normal messaging, data, and other rates and fees will apply to Your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by Your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, You are responsible for checking with Your mobile carrier to determine if the Mobile Services are available for Your mobile devices, what restrictions, if any, may be applicable to Your use of the Mobile Services, and how much they will cost You. Nevertheless, all use of the Website and its Mobile Services shall be in accordance with this TOU.
18. Disclaimer. THE INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE ON OR THROUGH THIS WEBSITE ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. MOREOVER, KOLENA MAY MAKE MODIFICATIONS AND/OR CHANGES IN THIS WEBSITE OR IN THE MATERIALS, AND INFORMATION AVAILABLE ON THIS WEBSITE AT ANY TIME AND FOR ANY REASON. KOLENA MAKES NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE SERVICES, MATERIALS, AND INFORMATION AVAILABLE ON THIS WEBSITE FOR ANY PURPOSE, AND EXPRESSLY DISCLAIMS (TO THE FULLEST EXTENT OF THE LAW) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. KOLENA ALSO MAKES NO REPRESENTATION, GUARANTEE, OR WARRANTY THAT THIS WEBSITE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION OR THAT ANY MESSAGE, FILE, AND/OR INFORMATION WILL BE STORED, ARCHIVED, OR DOWNLOADED FROM THE WEBSITE IN A MANNER FREE OF LOSS, VIRUSES, CONTAMINATION, OR OTHER DESTRUCTIVE FEATURES.
19. Limitation of Liability. You expressly absolve and release KOLENA from any claim of harm resulting from a cause beyond KOLENA’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KOLENA BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS WEBSITE, WITH THE DELAY OR INABILITY TO USE THIS WEBSITE, THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR FOR ANY INFORMATION AND MATERIALS AVAILABLE THROUGH THIS WEBSITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF KOLENA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF KOLENA FOR ANY REASON WHATSOEVER RELATED TO USE OF THIS SITE SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO KOLENA IN CONNECTION WITH THE SUBJECT MATTER OF THE PARTICULAR DISPUTE OR $2,500 (US), WHICHEVER IS LESS.
20. Governing Law. This TOU has been made in and will be construed and enforced in accordance with the laws of the State of Washington as applied to agreements entered into and completely performed in the State of Washington. You agree to the personal jurisdiction by and venue in the state or federal courts in the State of Washington and waive any objection to such jurisdiction or venue. Any claim You might have against KOLENA must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. You access the Website on Your own volition and are responsible for compliance with all applicable laws with respect to Your access and use of the Website. In any legal proceeding brought by KOLENA, KOLENA shall have the right to seek and be awarded all reasonable attorneys’ fees and costs in addition to any other relief, at law or in equity, to which KOLENA may be entitled.
21. Enforcing Security on the Website. Actual or attempted unauthorized use of the Website may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. KOLENA reserves the right to view, monitor, and record activity on the Website without notice or permission from You, including, without limitation, by archiving notices or communications sent by You through the Website. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal or unlawful activity on the Website as well as to disclosures required by or under applicable law or related government agency actions. KOLENA will also comply with all court orders or subpoenas involving requests for such information. In addition to the foregoing, KOLENA reserves the right to, at any time and without notice, modify, suspend, terminate, or interrupt operation of or access to the Website, or any portion of the Website in order to protect the Website, KOLENA, or KOLENA’s business.
22. Injunctive Relief. You acknowledge that any breach, threatened or actual, of this TOU, including, without limitation, with respect to unauthorized use of KOLENA proprietary assets, will cause irreparable injury to KOLENA, such injury would not be quantifiable in monetary damages, and KOLENA would not have an adequate remedy at law. You therefore agree that KOLENA shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of Your obligations under any provision of this TOU. Accordingly, You hereby waive any requirement that KOLENA post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to KOLENA to enforce any provision of this TOU.
23. Term and Termination. This TOU will take effect (or re-take effect) at the moment You check the box certifying that You have read, understand, and agree to abide by the terms and conditions of the Website, register, respond through the Website to a request for information, and/or begin downloading, accessing, or using the Website, whichever is earliest. KOLENA reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this TOU, to deny Your access to the Website or to any portion thereof in order to protect its name and goodwill, its business, and/or other Users, and this TOU will also terminate automatically if You fail to comply with its terms and conditions, subject to the survival rights of certain provisions identified below. Termination will be effective without notice and may impact Your membership status with KOLENA. You may also terminate this TOU at any time by ceasing to use the Website, but all applicable provisions of this TOU will survive termination, as identified below, and each re-access or use of the Website will reapply this TOU (then in effect) to You. Upon termination, You must destroy all copies of any aspect of the Website in Your possession. The provisions concerning KOLENA’s proprietary rights, feedback, disclaimers of warranty, limitations of liability, waiver and severability, entire agreement, injunctive relief, and governing law will survive the termination of this TOU for any reason.
24. Waiver and Severability. Failure to insist on strict performance of any of the terms and conditions of this TOU will not operate as a waiver of any subsequent default or failure of performance. No waiver by KOLENA of any right under this TOU will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. If any part of this TOU is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision and the remainder of this TOU shall continue in effect.
25. Entire Agreement. No joint venture, partnership, employment, affiliate, or agency relationship exists between You and KOLENA as result of this TOU or Your utilization of the Website. This TOU represents the entire agreement between You and KOLENA with respect to use of the Website, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between You and KOLENA with respect to the Website. You may not assign or transfer any rights under this TOU without the prior written consent of KOLENA. Please note that KOLENA reserves the right to change the terms and conditions of this TOU by posting a revised TOU or mailing and/or e-mailing notice thereof to You. In addition, KOLENA may add, modify, or delete any aspect, program, or feature of the Website, but KOLENA is not under any obligation to add any upgrade, enhancement, or modification. Your continued use of the Website following any announced change will be conclusively deemed acceptance of any change to the terms and conditions of this TOU. Accordingly, please review the TOU found at this location on a periodic basis.