Terms of Service
KODA TECHNOLOGIES, INC.
TERMS OF USE AGREEMENT
Last Updated Date: 1.7.2024
Welcome and thank you for your interest in Koda Technologies, Inc. ("koda", "we", "us" or "our"). This Terms of Use Agreement ("Terms of Use", and together with any applicable Supplemental Terms (as defined in Section 1.2 (Supplemental Terms)), the "Agreement") describes the terms and conditions that apply to your use of (i) the website located at www.kodaapp.com and its subdomains (collectively, the "Website"), (ii) any mobile application(s) that we offer subject to these Terms of Use (each, an "Application"), and (iii) the services, content, and other resources available on or enabled via our Website or any Application (collectively, with our Applications and Website, the "Service").
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICE AND APPLIES TO ALL USERS VISITING OR ACCESSING THE SERVICE. BY ACCESSING OR USING THE SERVICE IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, BROWSING THE WEBSITE OR DOWNLOADING THE APPLICATION, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, (3) YOU ARE NOT BARRED FROM USING THE SERVICE UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION; AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR, IF YOU ARE ACCESSING OR USING THE SERVICE ON BEHALF OF AN ENTITY OR CREATING A BUSINESS ACCOUNT, ON BEHALF OF THE ENTITY IDENTIFIED IN THE ACCOUNT REGISTRATION PROCESS . IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY, ALL REFERENCES TO "YOU" OR "YOUR" IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICE.
IF YOU SUBSCRIBE TO ANY FEATURE OR FUNCTIONALITY OF THE SERVICE FOR A TERM (THE "INITIAL TERM"), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT COMPANY'S THEN-CURRENT FEE FOR SUCH FEATURES AND FUNCTIONALITY UNLESS YOU OPT OUT OF THE AUTOMATIC RENEWAL OF SERVICE TERM OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 9.3(a) (AUTOMATIC RENEWAL) BELOW.
SECTION 17 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 17 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 17 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 17 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 17) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 17.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
THE AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 18.6 (AGREEMENT UPDATES).
// Continuation from previous sections1. USE OF THE SERVICE. The Service allows users to view content created and posted by other users, including business users, as well as post reviews and information related to businesses. The Service and the information and content available on the Service are protected by applicable intellectual property (including copyright) laws. Unless subject to a separate license agreement between you and Company, your right to access and use the Service, in whole or in part, is subject to this Agreement.
1.1 Application License. Subject to your compliance with this Agreement, Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install, access, and use a copy of the Application on a single Device (as defined below) that you own or control and to run such copy of the Application solely for your own personal or internal business purposes.
1.2 Supplemental Terms. Your use of, and participation in, certain features and functionality of the Service may be subject to additional terms ("Supplemental Terms"). Such Supplemental Terms will either be set forth in the applicable supplemental Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Use are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Service.
1.3 Updates. You understand that the Service is evolving. As a result, Company may require you to install updates to the software or Applications that you have installed on the devices through which you access or use the Service ("Device"). You acknowledge and agree that Company may update the Service with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Service. Any future release, update, or other addition to the Service shall be subject to this Agreement.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of the Service, you may be required to register an account on the Service ("Account"), have a valid account on a social networking service ("SNS") through which you can connect to the Service, to the extent such connections are permitted by the Service (each such account, a "Third-Party Account"), or have an account with the app store from which you downloaded the Application.
2.2 Access Through an SNS. The Service may, now or in the future, allow you to link your Account with a Third-Party Account by allowing Company to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Company and/or grant Company access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third-party service providers. By granting Company access to any Third-Party Account, you understand that Company may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through the Service via your Account.
Unless otherwise specified in this Agreement, all SNS Content is considered to be Your Content (as defined in Section 3.1 (Types of Content)) for all purposes of this Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Service. If a Third-Party Account or associated service becomes unavailable, or Company’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Service.
YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND COMPANY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Company is not responsible for any SNS Content.
2.3 Registration Data. In registering an account on the Service, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Company. Furthermore, you are responsible for all activities that occur under your Account. You shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Service by minors. You may not share your Account or password with anyone, and you agree to notify Company immediately of any unauthorized use of your password or any other breach of security.
2.5 Necessary Equipment and Software. You must provide all Devices and other equipment or software (excluding Service) necessary to access or use the Service. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Service.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Service (collectively, “Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, email, transmit, share, or otherwise make available (“Make Available”) through the Service, including the SNS Content (collectively, “Your Content”), and that other users of the Service, and not Company, are similarly responsible for all Content that they Make Available through the Service (“User Content”).
3.2 Storage. Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content. Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. Certain features and functionality of the Service may enable you to specify the level at which the Service restricts access to Your Content. In such cases, you are solely responsible for applying the appropriate level of access to Your Content. If you do not choose a level of access, the system may default to its most permissive setting. You agree that Company retains the right to create reasonable limits on Company’s use and storage of Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Service and as otherwise determined by Company in its sole discretion.
4. OWNERSHIP.
4.1 The Service. Except with respect to Your Content, you agree that Company and its suppliers or licensors own all rights, title and interest in the Service (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Company software). You shall not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Service.
4.2 Trademarks. Koda Technologies, Inc. and all related stylizations, graphics, logos, service marks and trade names used on or with the Service are the trademarks of Company and may not be used without permission in connection with your, or any third party’s, products or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
4.3 Your Content. Company does not claim ownership of Your Content. However, when you Make Available any Content on or to the Service, you represent that you own and/or have sufficient rights to Your Content to grant the license set forth in Section 4.4 (License to Your Content).
4.4 License to Your Content. Subject to any applicable Account settings that you select, you grant Company a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, copy, reproduce, save, store, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, and publicly display Your Content for the purposes of operating, developing, providing, and using the Service. You acknowledge and agree that the foregoing right and license include a right and license for Company to derive revenue or other remuneration from Your Content (in whole or in part) in connection with operating and providing the Service to you and to our other users. Please remember that other users may be able to search for, see, use, modify, and/or reproduce any of Your Content that you submit to any area of the Service that is accessible by other users.
4.5 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Service, you hereby expressly permit Company to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media, or technology now known or later developed in connection with Your Content.
4.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Service and/or Company’s business.
4.7 Advertising Revenue. Company and its licensees may publicly display Third-Party Ads, paid content, and other information nearby or in association with Your Content, and/or generally in the Services. You are not entitled to any compensation for such advertisements. The manner, mode, and extent of such advertising are subject to change without specific notice to you.
5. USER CONDUCT AND CERTAIN RESTRICTIONS. As a condition of use, you agree not to use the Service for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party to): (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Service or any portion of the Service; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Service or any other portion of the Service (including images, text, page layout, or form); (iii) use any metatags or other “hidden text” using Company’s name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape,” “mine,” record, process, or download data or information from any web pages, including information about users, contained in the Service; (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Service; (vii) impersonate any person or entity, including any employee or representative of Company and including other users (e.g., business users); (viii) interfere with or attempt to interfere with the proper functioning of the Service or use the Service in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service; or (ix) take any action or Make Available any Content on or through the Service that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; or (C) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Company’s prior written consent.
You agree not to promote a business, or other commercial venture or event, or otherwise use the Service for commercial purposes except in connection with a Business Account in accordance with Section 10.
5.1 Removal of Content. Without limiting the foregoing, Company reserves the right, but is not obligated to, remove or refuse to post any Content, including Your Content, at any time and for any reason.
6. INTERACTIONS WITH OTHER USERS.
6.1 User Responsibility. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service; provided, however, that Company reserves the right, but has no obligation, to intercede in any disputes between you and any other users. You agree that Company will not be responsible for any liability incurred as the result of your interactions with other users.
6.2 Content Provided by Other Users. The Service may contain User Content provided by other users. Company is not responsible for and does not control User Content. Company does not approve or endorse, or make any representations or warranties with respect to, User Content. You use all User Content and interact with other users at your own risk.
7. THIRD-PARTY SERVICE.
7.1 Third-Party Websites, Applications, and Ads. The Service may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”), and advertisements for third parties (“Third-Party Ads”) (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Service, we will not warn you that you have left the Service and you become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Company. Company is not responsible for any Third-Party Services.
7.2 Sharing Your Content and Information Through Third-Party Services. Company may provide tools through the Service that enable you to export information, including Your Content, to Third-Party Services. By using one of these tools, you agree that Company may transfer that information to the applicable Third-Party Service. Company is not responsible for any Third-Party Service’s use of your exported information.
7.3 Third-Party Application Access. With respect to any Application accessed through or downloaded from the Apple App Store, you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service.
7.4 Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: (i) this Agreement is concluded between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof.
7.5 Third-Party Service Disclaimer. You acknowledge and agree that your use of any Third-Party Service is governed solely by the terms and conditions of such Third-Party Service, and Company does not endorse, is not liable for, and makes no representations as to any Third-Party Service, its content, or the manner in which the Third-Party Service uses, stores, or processes your data. Further, Company is not liable for the acts or omissions of any provider of a Third-Party Service, including any access to or use of your data by such provider.
8. FEES AND PURCHASE TERMS.
8.1 Third-Party Payment Processor. The Company uses a third-party payment processor for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”). By making a purchase through the Service, you authorize the Third-Party Service Provider to charge your credit card or other payment method for any fees associated with your order.
8.2 Payment. You shall pay all fees or charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You shall provide Company or our Third-Party Service Provider with accurate payment information, including, but not limited to, your billing address, credit card or payment account number, and expiration date.
8.3 Subscription Services. If you purchase access to certain features and functionality of the Service on a time-limited basis (a “Subscription”), you agree that your Subscription will automatically renew for additional periods of the same duration at Company’s then-current subscription rate. You may cancel your Subscription as set forth in Section 9.3(a) (Automatic Renewal).
9. CANCELLATION AND REFUND POLICY.
9.1 Cancellation of Subscription. If you purchased your Subscription directly from Company, you may cancel your Subscription by logging into the Service and going to the “Manage Subscription” page. If you purchased a Subscription via a Third-Party Application Store, you must cancel your Subscription via the third-party store in accordance with its terms and conditions.
9.2 Refund Policy. Except as required by law or otherwise permitted by Company in its sole discretion, all fees are non-refundable.
10. INDEMNIFICATION.
You agree to indemnify and hold harmless Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors from and against any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (i) Your Content; (ii) your use of, or inability to use, the Service; (iii) your violation of this Agreement; or (iv) your violation of any rights of another party, including any user.
11. DISCLAIMER OF WARRANTIES.
11.1 As Is. Your use of the Service is at your sole risk, and the Service is provided on an “AS IS” and “AS AVAILABLE” basis. Company expressly disclaims all warranties, representations, and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. In no event shall Company be liable for any indirect, incidental, special, or consequential damages, including loss of profits, revenue, or data, arising out of or in connection with this Agreement, the Service, or your use of the Service, whether based on contract, tort, strict liability, or any other legal theory.
12.2 Cap on Liability. To the extent permitted by applicable law, the total liability of Company arising out of or relating to this Agreement or the Service shall not exceed the greater of (i) the total amount paid by you to Company during the three-month period prior to the act, omission, or occurrence giving rise to such liability or (ii) $100.
13. TERMINATION.
13.1 Termination by Company. Company reserves the right to terminate this Agreement or suspend your access to the Service at any time without cause upon notice to you.
13.2 Termination by You. You may terminate this Agreement by closing your Account and discontinuing your use of the Service.
14. GOVERNING LAW AND DISPUTE RESOLUTION.
14.1 Governing Law. This Agreement and any dispute arising out of or relating to this Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to its conflicts of laws principles.
14.2 Arbitration Agreement. All disputes, claims, or controversies arising out of or relating to this Agreement or your use of the Service will be resolved by binding arbitration, except for disputes related to intellectual property infringement or other equitable relief.
15. GENERAL PROVISIONS.
15.1 Entire Agreement. This Agreement constitutes the entire agreement between you and Company with respect to your use of the Service and supersedes all prior agreements, communications, and understandings.
15.2 Waiver. The failure of either party to exercise any right provided in this Agreement will not constitute a waiver of future enforcement of that right.
15.3 Severability. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
15.4 Force Majeure. Company will not be liable for any delay or failure to perform its obligations under this Agreement due to causes beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, pandemics, or other events.
15.5 Notices. Any notices or other communications required or permitted under this Agreement will be in writing and sent to the addresses specified by the parties, either by email or certified mail.
15.6 Assignment. You may not assign or transfer this Agreement, or any rights or obligations under this Agreement, without Company’s prior written consent. Company may freely assign or transfer this Agreement without restriction.
15.7 Headings. The section headings in this Agreement are for convenience only and have no legal or contractual effect.