IMPORTANT! PLEASE READ THIS AGREEMENT CAREFULLY.  YOUR LEGAL RIGHTS MAY BE AFFECTED BY THE CONTENTS OF THIS AGREEMENT.  THIS AGREEMENT CONTROLS ALL ACTIONS AND ACTIVITIES ARISING OUT OF OR RELATED TO THE USE OF MYKB SERVICE, INCLUDING THE RESOLUTION OF ALL DISPUTES THROUGH BINDING ARBITRATION, AS DESCRIBED BELOW.  YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS IS EVIDENCED BY YOUR UTILIZATION OF THE SERVICE, AS INDICATED ON THIS WEBSITE.

This Terms of Service Agreement (sometimes “TOS”, or, the “Agreement”) discloses the conditions and terms of use and governs your use of the myKB brand of Knowledge Base Database Applications in an Internet-based database management, exchange and synchronization services environment (herein the “Service”), as provided by myKB, Inc., an Arizona corporation hereafter referred to as “COMPANY”.  The Service is available for your use only on the condition that you agree to the terms and conditions set forth below.

1.  SERVICES. COMPANY agrees to provide the Service herein described to you only as authorized in this Agreement. This Agreement is effective from the date you select the "I AGREE" button at the bottom of this Agreement or otherwise begin using the Service. Either COMPANY or you may terminate this Agreement at any time, with or without cause, upon notice to the other party. The Service may be used only for your transmission of information for your own use and may not be used on an outsourcing basis or similarly on behalf of third parties. From time-to-time, this TOS may be further conditioned by a Tariff published by Proof of Service – electronic.

2.  LIMITED RIGHT OF USE.

a. In accordance with Title 18, United States Code, Section 1030 YOU ARE NOT AUTHORIZED TO USE PRODUCTS OF COMPANY AS A KNOWLEDGE BASE SOFTWARE COMPETITOR. COMPANY FORBIDS YOUR USE OF COMPANY PRODUCTS INCLUDING BUT NOT LIMITED TO HTTP://WWW.MYKB.COM MARKETING MATERIALS AND APPLICATION.

b. The Service is a proprietary product of COMPANY and/or its licensee(s) and is protected under Copyright and other laws. All right, title and interest in and to the SERVICE, including all associated intellectual property rights, is and shall remain with COMPANY, except as the same may be subject to a license. This Agreement does not convey to you any interest in or to the SERVICE or any associated intellectual property rights, but only a limited right of use revocable in accordance with the terms of this Agreement. Intellectual property that you may store using SERVICE will remain your property. This property is limited to intellectual property supplied and managed by you and is limited to data supplied and managed by you. At no point shall any intellectual property of COMPANY become available or transfered to you, except by available licenses listed in this document.

3.  FEES AND CHARGES. The fees and charges for accessing or otherwise using the Services will be posted on the COMPANY Website and certain aspects of the fees and charges may be increased or decreased from time-to-time in COMPANY’s discretion, as stated herein. PLEASE CHECK THE FEE AND CHARGE LISTING ON THE PRODUCT WEBSITE BEFORE EACH USE TO ASCERTAIN THE CURRENT FEES AND CHARGES FOR THE SERVICE. ALL AMOUNTS NOT PAID TO COMPANY WHEN DUE WILL BEAR INTEREST IN U.S. DOLLARS AT A RATE EQUAL TO THE LESSER OF (a) 18% PER YEAR OR (b) THE MAXIMUM LAWFUL INTEREST RATE PERMITTED UNDER APPLICABLE LAW. You agree to reimburse COMPANY in full for all costs, expenses, and attorneys’ fees incurred by COMPANY in collecting overdue amounts.

4.  STORAGE PERIOD. COMPANY agrees to hold and safeguard pursuant to the limitations herein described, stored data, the message[s], and/or attachment[s], for the time period of 14 days of verified and confirmed notice to cancel. During these 14 days a data backup (in usable, common, database format) may be requested for a fee of $150.00. After these 14 days COMPANY has the right to remove data without consent and cannot be held liable for any such actions. Data is confined to a single user account. After any such 14 day period, data may or may not be able to be retrieved from previous archives, but current data will be removed and inactivated.

5.  LIMITATION OF LIABILITY AND DISCLAIMER. 

LIMITATION OF LIABILITY
 
COMPANY PROVIDES THE SERVICE “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, EXCEPT AS MAY BE MANDATED BY LAW.  TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE. COMPANY DOES NOT WARRANT THAT USE OF THE SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. COMPANY FURTHER DOES NOT WARRANT THAT THE INFORMATION STORED OR TRANSMITTED BY THE SERVICE WILL BE FREE FROM UNAUTHORIZED ACCESS, DELETION OR MODIFICATION. YOU ASSUME ALL RISK AS TO THE SELECTION, USE, PERFORMANCE AND QUALITY OF THE SERVICE. YOU ACKNOWLEDGE THAT COMPANY IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY MESSAGES, DOCUMENTS OR CONTENTS THEREOF TRANSMITTED USING THE SERVICE. IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR PENALTIES (INCLUDING LOSS OF PROFITS, INABILITY TO USE THE SERVICE, LOSS OR DAMAGE TO INFORMATION STORED AND/OR TRANSMITTED BY THE SERVICE AND/OR DAMAGES (DIRECT OR OTHERWISE) FOR DELAY IN DELIVERY OR FAILURE TO GIVE NOTICE OF DELAY), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR PENALTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL COMPANY’S LIABILITY FOR ANY DAMAGES (DIRECT OR OTHERWISE) OR PENALTIES OR LOSS TO YOU OR TO ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER IN CONTRACT, TORT, DELICT, OR OTHERWISE, EXCEED ANY FEE ACTUALLY PAID BY YOU FOR THE TRANSMISSION ALLEGED TO HAVE RESULTED IN LOSS OR, IF THE LOSS IS ALLEGED TO RESULT FROM SOME CAUSE OTHER THAN AN ATTEMPTED TRANSMISSION, SUCH LIABILITY SHALL NOT IN ANY EVENT EXCEED US$100.00. CLAIMS NOT MADE WITHIN SIX (6) MONTHS AFTER ATTEMPTED TRANSMISSION OF THE ITEM INVOLVED IN ANY PARTICULAR TRANSACTION SHALL BE DEEMED WAIVED. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY AND SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OR OF DAMAGES FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM JURISDICTION TO JURISDICTION. IF YOU ARE DEALING AS A CONSUMER YOUR STATUTORY RIGHTS THAT CANNOT BE WAIVED, IF ANY, ARE NOT AFFECTED BY THESE PROVISIONS. GIVEN THE NATURE OF THE SERVICE AND THE FEES PAYABLE FOR SUCH SERVICE, YOU AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE. FUTURE AMENDMENTS TO THIS AGREEMENT MAY BE MADE AT ANY TIME BY POSTING ON WEBSITE OR OTHERWISE. COMPANY RESERVES THE RIGHT TO MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT OR THE PRODUCT DOCUMENTATION IN ITS SOLE DISCRETION AT ANY TIME BY POSTING A REVISED VERSION OF THIS AGREEMENT AND/OR THE PRODUCT DOCUMENTATION ON THE COMPANY WEBSITE OR OTHERWISE MAKING THEM AVAILABLE FOR YOUR REVIEW AND SUCH POSTING SHALL BE REASONABLE NOTIFICATION TO YOU OF THE FACT OF SUCH AMENDMENT. ANY MODIFICATIONS TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY MODIFICATIONS TO THE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT, WILL SUPERSEDE THE PRIOR AGREEMENT PROVISIONS FOR ALL TRANSACTIONS OCCURRING AFTER THE REVISED VERSION HAS BEEN POSTED TO THE COMPANY DOCUMENT EXCHANGE WEBSITE OR OTHERWISE MADE AVAILABLE AS DESCRIBED ABOVE AND THE CONTINUED USE OF THE SERVICE AFTER THAT POSTING OR AVAILABILITY AND REASONABLE NOTIFICATION CONSTITUTES YOUR AGREEMENT TO THE REVISION.
DISCLAIMER
THE SERVICE AND RELATED DOCUMENTATION LOCATED WITHIN THE MYKB.COM, MYKBPRO.COM, MYKBFREE.COM, MYKBENTERPRISE.COM, MYKBTRIAL.COM, MYKBDEMO.COM AND OTHER MYKB DOMAINS ARE PROVIDED “AS IS.”  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE FUNCTIONALITY OR CAPABILITIES DESCRIBED IN THE SERVICE AND RELATED DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES THE SERVICE AND RELATED DOCUMENTATION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY. DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE AND RELATED DOCUMENTATION WITHIN THE MYKB.COM, MYKBPRO.COM, MYKBFREE.COM, MYKBENTERPRISE.COM, MYKBTRIAL.COM, MYKBDEMO.COM AND OTHER MYKB DOMAINS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

6.  USER’S UNDERTAKINGS: You warrant and represent that: (i) all information provided to COMPANY in connection with this Agreement or with your use of the Service is true and correct, (ii) you will update that information with COMPANY and/or its service provider as the information changes, (iii) all information provided by you will be current and accurate with COMPANY as of the date of each transaction transmitted or otherwise processed under this Agreement, and (iv) you are of legal age and fully capable, authorized, and empowered to enter into this Agreement and to make these representations and the other representations in this Agreement. You have entered into this Agreement and you will use the Service exclusively for authorized and legal purposes, consistent with all applicable laws, regulations, and rights of others. You will not include programs, extraneous code, viruses or data that may be reasonably expected to damage, misappropriate or interfere with the use of data, software or systems, or the operation of the Service. You will keep confidential and not disclose your Service account number, login ID, or password to third parties and will not use an account number, login ID, or password that was not issued to you by COMPANY. In the event that your account number, login ID, or password is disclosed to any third party or otherwise compromised for any reason, you must notify COMPANY immediately. You acknowledge that the Service is not designed, intended or authorized for use in hazardous or mission critical circumstances or for uses requiring failsafe performance such as the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control systems or weapons control systems, for classified government documents or where failure could lead to death, personal in company or severe environmental damage, and you agree not to use the Service for such uses or under such circumstances. You agree to indemnify and hold COMPANY and its licensor's, employees licensees, service providers and contractors (the “Indemnified Parties”) harmless for any breach of warranty or other breach of this Agreement on your part, any reliance on any contents of messages or documents, or any use or disposition, or attempted use or disposition, of the Service in violation of this Agreement or not in accordance with the documentation or in violation of any applicable laws. You agree that the Indemnified Parties shall have no liability to you or any third parties in connection with any such breach, reliance, or use or disposition or attempted use or disposition, and you agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Indemnified Parties in connection therewith.

7.  AGREEMENT TO USE LEGALLY: You agree with respect to use of Service to comply with all applicable United States laws and regulations that govern the export and re-export of software and technology (including software and technology that contains or relates to encryption), including without limitation the U.S. Export Administration Regulations and any regulations administered by the Department of the Treasury’s Office of Foreign Assets Control, and to comply with any applicable laws and regulations of countries other than the United States that govern the importation, use or re-export of such software or technology. You agree with respect to use of Service to comply with all applicable United States laws and regulations that govern intellectually protected material, included and not limited to copyrights, trademarks, trade secrets, and patents.  You also agree not to transmit, store, disseminate, or otherwise distribute illegal materials, the distribution of which is in violation of the laws of the United States of America. By using the Service, you represent and warrant that you are at least 14 years of age.

8.  OTHER RESTRICTIONS UPON SERVICE: You agree that in no event shall COMPANY be responsible for your use of the Service to send any materials valued in excess of the single transaction fee you are being charged by COMPANY for the transaction at issue. COMPANY shall not be obligated to transmit any message sent in violation of any provision of this Agreement. You agree that COMPANY may refuse to deliver any message and/or document that it deems in its discretion to violate the terms of this Agreement. You acknowledge and agree that COMPANY during the course of providing the Service may itself have access to the content of the transmission and may be required to grant access to a third party and/or decrypt messages and documents in response to any lawful subpoena or other form of legal compulsion.

9.  ARBITRATION OF ALL DISPUTES: Interpretation of this Agreement will be governed by the laws of the United States of America, excluding (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. To the full extent permitted by law, the controlling language of this Agreement is English and any translation you have received has been provided solely for your convenience. To the full extent permitted by law, all correspondence and communications between you and COMPANY under this Agreement must be in the English language. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION PURSUANT TO THE UNITED STATES FEDERAL ARBITRATION ACT [9 USC 1 et seq.], AND JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATION TRIBUNAL SHALL CONSIST OF THREE ARBITRATORS, OF WHOM ONE SHALL BE NOMINATED BY COMPANY AND ONE BY YOU, AND THE THIRD, WHO SHALL SERVE AS CHAIRMAN, SHALL BE CHOSEN BY THE TWO PARTY-NOMINATED ARBITRATORS OR, IN THE EVENT THE PARTY-NOMINATED ARBITRATORS ARE UNABLE TO DESIGNATE THE THIRD ARBITRATOR, BY THE AMERICAN ARBITRATION ASSOCIATION. THE PLACE OF ARBITRATION SHALL BE MARICOPA COUNTY, ARIZONA, USA, AND THE LANGUAGE OF ARBITRATION SHALL BE ENGLISH. THE AWARD OF THE ARBITRATOR(S) SHALL BE FINAL AND BINDING. THE PARTIES WAIVE ANY RIGHT TO APPEAL THE ARBITRAL AWARD, TO THE EXTENT A RIGHT TO APPEAL MAY BE LAWFULLY WAIVED. EACH PARTY RETAINS THE RIGHT TO SEEK JUDICIAL ASSISTANCE SOLELY: (A) TO COMPEL ARBITRATION; (B) TO OBTAIN INTERIM MEASURES OF PROTECTION PENDING ARBITRATION; AND (C) TO ENFORCE ANY DECISION OF THE ARBITRATOR(S), INCLUDING THE FINAL AWARD. IF ANY PARTY FAILS TO NAME AN ARBITRATOR WITHIN FIVE (5) DAYS OF THE INITIATION OF A DISPUTE RESOLUTION PROCESS, ANY NAMED ARBITRATOR MAY, AT HIS, OR HER, OPTION, APPOINT ONE OF HIS, OR HER, OWN CHOOSING AND THE PANEL THUS CONSTITUTED SHALL APPOINT THE THIRD ARBITRATOR.

10.  GENERAL PROVISIONS: The following general provisions shall apply:

a. If any provision or portion of a provision of this Agreement is determined to be invalid or unenforceable under any circumstances, that invalid or unenforceable provision or portion shall be deemed omitted with respect to those circumstances and the remaining provisions of this Agreement shall remain in full force and effect.

b. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

c. COMPANY is at all times an independent contractor and is not an agent, fiduciary, trustee or other representative of you. You acknowledge that you have dealt with COMPANY at all times at arm’s length and that your relationship with COMPANY is not one of principal and agent. You do not have authority to bind or act on behalf of COMPANY and you agree to make no representation to the contrary.

d. COMPANY shall not be liable or responsible for any delay or failure in performance if such delay or failure is caused in whole or in part by fire, flood, explosion, war, terrorism, strike, embargo, government regulation, civil or military authority, act of God, acts or omissions of carriers, transmitters, providers, vandals, or hackers, Year 2000 related problems, or any other similar causes that may be beyond its control. In addition, you acknowledge that in connection with the Service, messages and documents will be transmitted over local exchange, inter-exchange and Internet backbone carrier lines and through routers, switches and other devices owned, maintained and serviced by third party local exchange and long distance carriers, utilities, Internet service providers and others, all of which are beyond the control and jurisdiction of COMPANY and its suppliers. Accordingly, and without limiting the generality of the foregoing provisions of this section, or other disclaimers contained in this Agreement, COMPANY assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted via the Service.

e. This Agreement, as it may be amended from time-to-time as set forth herein, is the complete and exclusive statement of the Agreement between COMPANY and you with respect to the Service, and supersedes any prior or contemporaneous proposals, agreements, communications, discussions, documents, documentation, or representations, oral or written, pertaining to the subject matter of this Agreement, and no such proposals, agreements, communications, discussions, documents, documentation, or representations shall be binding on COMPANY.

f. You may not assign, delegate or transfer all or any part of this Agreement, or any rights hereunder, or any account number, login ID, or password for use in connection with the Service to any third party without the express written approval of COMPANY, which may be withheld in COMPANY’s sole discretion. Any such attempted assignment or transfer shall be void and of no effect. COMPANY may assign, delegate or transfer all or any part of this Agreement or any rights hereunder, without the need for any approval or consent from you, (i) to any person controlling, controlled by or under common control with COMPANY or (ii) to any third party selected by COMPANY but such arrangement, delegation or transfer to a third party shall not relieve COMPANY of any obligation to you hereunder.

g. You agree to accept documents delivered to the email address that you provided to COMPANY when you initiated your relationship with COMPANY, or such other email address as you may from time-to-time provide to COMPANY through the PRODUCT website.

h.  To the extent that arbitration is not allowed for any reason, any lawsuit or other legal dispute arising from this Agreement shall be governed by the laws of the State of Arizona, without regard to any conflicts of laws provisions.  You acknowledge and agree that jurisdiction and venue shall be proper only in a court of competent jurisdiction located within Maricopa County, State of Arizona.

i.  Headings are provided for convenience only and are not to be used to construe the Agreement.

11.  LANGUAGE: The parties declare that they have required that this agreement and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent par les présentes qu’ils exigent que cette entente et tous les documents y afférents, soit pour le présent ou le futur, soient rédigés en langue anglaise seulement.

12.  POSTING OF RELATED INFORMATION. UPDATED INSTRUCTIONS AND TERMS REGARDING THE USE OF THE SERVICE ARE POSTED PERIODICALLY TO THE WEBSITE.

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