DIAMOND KINETICS TERMS OF SERVICE
Last Updated: 4/4/2023
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Diamond Kinetics (together with our affiliates, “Diamond Kinetics”, “we”, or “us”) provides an online community for motion analytics and related products, services, content and features through Diamond Kinetics websites (the “Diamond Kinetics Site(s)”), including the interfaces connected to Diamond Kinetics Devices (such as Diamond Kinetics motion sensors), and through mobile, desktop, or device applications (including iOS and Android applications (“Apps”)) and Diamond Kinetics-controlled social media pages (including on Facebook, Instagram, and Twitter). To make these Terms easier to read, the Diamond Kinetics Sites and Apps and Diamond Kinetics-controlled social media pages are collectively called the “Diamond Kinetics Service” or “the Services”. By registering as a member or by visiting, browsing, or using the Diamond Kinetics Service or by clicking to accept or agree to the Terms of Service when this option is made available to you, you (as a “user”) accept and agree to be bound and abide by these Terms of Service (“Terms”), which forms a binding agreement between you and Diamond Kinetics.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH DIAMOND KINETICS, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE SERVICES BY APPLICABLE LAW.
If you do not wish to be bound by these Terms, you may not access or use the Diamond Kinetics Service. Certain elements of the Diamond Kinetics Service may be subject to additional terms and conditions specified from time to time; your use of those elements of the Diamond Kinetics Service is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.
1.) Diamond Kinetics Eligibility Requirements
Membership Holder Age Requirement. You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to purchase a Diamond Kinetics membership subscription and become a Membership Holder (as defined in the Membership Terms).
Member Age Requirement. You must be at least 13 years old to become a Member (as defined in the Membership Terms). If you are a parent or legal guardian of a Member under the age of 18 years old, you are subject to these Terms and responsible for that Member’s activity on the Diamond Kinetics Service by allowing them to use the Diamond Kinetics Service.
Diamond Kinetics Hardware Use Age Requirements. Individuals 14 years of age and older who meet hardware user criteria as specified in the applicable documentation may use the Diamond Kinetics hardware. All individuals must abide by all safety precautions and instructions in the applicable hardware user manual. All individuals under 18 years of age must have permission to participate from a parent or legal guardian who will provide supervision.
We may, in our sole discretion, refuse to offer the Diamond Kinetics Service to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access and use the Diamond Kinetics Service is revoked where these Terms or use of the Diamond Kinetics Service is prohibited or conflicts with any applicable law, rule or regulation. Further, the Diamond Kinetics Service is offered only for your personal, non-commercial use, and not for the use or benefit of any third party.
2.) License to Use the Diamond Kinetics Service
Restrictions. You shall not, and shall not permit any other person to, use the Diamond Kinetics Services, any software component of the Diamond Kinetics Services, or documentation for any purposes beyond the scope of the access granted in these Terms. You shall not at any time, directly or indirectly, and shall not permit any other person to: (i) copy, modify, or create derivative works of the Diamond Kinetics Services, any software component of the Diamond Kinetics Services, or documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Diamond Kinetics Services or documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Diamond Kinetics Services, in whole or in part; (iv) remove any proprietary notices from the Diamond Kinetics Services or documentation; or (v) use the Diamond Kinetics Services or documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule. All rights not expressly granted by Diamond Kinetics in these Terms are reserved.
- What information we may collect about you;
- What we use that information for; and
- With whom we share that information.
4.) Membership Requirements Registration
To enjoy full access to the Diamond Kinetics Service, you must register as a member of the Diamond Kinetics Service and enter into a subscription agreement for access to our Content and features (a “Subscription”). Your Subscription is also governed by the Membership Terms. You must provide complete and accurate registration information to Diamond Kinetics, complete the Subscription process, and notify us if any of your information changes. If you fail to keep your account information up to date, we may have to suspend or terminate your Subscription.
You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account; this includes furnishing your username and password to third-party developed applications to connect to your account for any reason. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the Diamond Kinetics Service. If you become aware of an unauthorized access to your account, change your password and notify our Support team immediately.
5.) Membership Structure and Fees.
Diamond Kinetics will provide information on its then-current membership and Subscription requirements on the Diamond Kinetics Site and/or by other means through the Diamond Kinetics Service. Features and prices are subject to change.
6.) Termination; Account Deletion.
Term. These Terms begin on the date you first use the Diamond Kinetics Service and continue as long as you have an account with us and/or continue to use the Diamond Kinetics Service.
Termination. Diamond Kinetics may, in Diamond Kinetics’s sole discretion, suspend, disable, or delete your account (or any part thereof) or block or remove any User Content (defined below) that you submitted, for any lawful reason, including if Diamond Kinetics determines that you have violated these Terms or that your conduct or User Content would tend to damage Diamond Kinetics’s reputation or goodwill. Diamond Kinetics may block your access to the Diamond Kinetics Service to prevent re-registration.
Effect of Termination / Account Deletion. Upon termination of these Terms all licenses granted by Diamond Kinetics will terminate. The following sections survive termination: Privacy (Section 3), User Content (Section 7), Indemnification (Section 11), No Warranties (Section 14), Limitation of Liability (Section 15), Intellectual Property Rights (Section 16), Arbitration Requirement & Class Action Waiver (Section 18), Governing Law and Jurisdiction (Section 19), and General Provisions (Section 20). In the event of account deletion for any reason, User Content may no longer be available and Diamond Kinetics is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all Content and features provided through the Diamond Kinetics Service. Diamond Kinetics, in its sole discretion, may make available a very limited amount of Content or features to non-subscribers from time to time, and any use of that Content is governed by these Terms.
7.) User Content.
“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Diamond Kinetics Service.
”User Content” means any content that users (including you) provide to be made available through the Diamond Kinetics Service. Content includes, without limitation, User Content.
Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Diamond Kinetics Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the Diamond Kinetics Service.
As between you and Diamond Kinetics, you represent that you own (or have all rights necessary to grant Diamond Kinetics the rights below to) all User Content that you submit to the Diamond Kinetics Service, and that Diamond Kinetics will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant Diamond Kinetics a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Diamond Kinetics Service permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to Diamond Kinetics or through the Diamond Kinetics Service about improving or adding new features or products to the Diamond Kinetics Service or you otherwise provide feedback, product or service reviews or testimonials, you hereby grant to Diamond Kinetics a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Diamond Kinetics Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
8.) Rights and Terms for Apps.
Rights in App Granted. Subject to your compliance with these Terms, Diamond Kinetics grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not:
- copy, modify or create derivative works based on the App;
- distribute, transfer, sublicense, lease, lend or rent the App to any third party;
- reverse engineer, decompile or disassemble the App; or
- make the functionality of the App available to multiple users through any means.
Diamond Kinetics reserves all rights in and to the App not expressly granted to you under these Terms.
Accessing App from an App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
- These Terms are between you and Diamond Kinetics, and not with the App Provider, and Diamond Kinetics (not the App Provider), is solely responsible for the App.
- The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Diamond Kinetics.
- The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to:
- product liability claims;
- any claim that the App fails to conform to any applicable legal or regulatory requirement; and
- claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Diamond Kinetics will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
- You represent and warrant that
- you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country;
- you are not listed on any U.S. Government list of prohibited or restricted parties; and
- you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
- You must also comply with all applicable third party terms of service when using the App.
9.) General Prohibitions and Diamond Kinetics’s Enforcement Rights.
- You agree not to do any of the following:
- post, upload, publish, submit or transmit any User Content or engage in any activity that:
- infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- is fraudulent, false, misleading or deceptive;
- is defamatory, obscene, pornographic, vulgar or offensive;
- promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity;
- exploits minors; or
- promotes illegal or harmful activities or substances;
- Download and/or install any third party software and/or application on any Diamond Kinetics hardware (excluding assistive technologies that are necessary for your own use of the Diamond Kinetics Service, such as screen-readers) that is not expressly permitted by Diamond Kinetics in writing;
- Use, display, mirror or frame the Diamond Kinetics Service or any individual element within the Diamond Kinetics Service, Diamond Kinetics’s name, any Diamond Kinetics trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Diamond Kinetics’s express written consent;
- Access, tamper with, or use non-public areas of the Diamond Kinetics Service, Diamond Kinetics’s computer systems, or the technical delivery systems of Diamond Kinetics’s providers;
- Attempt to probe, scan or test the vulnerability of any Diamond Kinetics system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Diamond Kinetics or any of Diamond Kinetics’s providers or any other third party (including another user) to protect the Diamond Kinetics Service or Content;
- Bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the Diamond Kinetics Service;
- Attempt to access, scrape or search the Diamond Kinetics Service or Content or download Content from the Diamond Kinetics Service, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by Diamond Kinetics or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Diamond Kinetics trademark, logo URL or product name without Diamond Kinetics’s express written consent;
- Use the Diamond Kinetics Service or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by Diamond Kinetics;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Diamond Kinetics Service or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Diamond Kinetics Service or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Diamond Kinetics Service;
- Collect or store any personally identifiable information from the Diamond Kinetics Service from other users of the Diamond Kinetics Service without their express permission;
- Copy, use, index, disclose or distribute any information or data obtained from the Diamond Kinetics Service, whether directly or through third parties (such as search engines), without Diamond Kinetics’s express written consent;
- Alter, replicate, store, distribute or create derivatives from the Content available via the Diamond Kinetics Service except as expressly permitted in writing by Diamond Kinetics;
- Impersonate or misrepresent your affiliation with any person or entity;
- Access, use or exploit the Diamond Kinetics Service in any manner (other than as expressly permitted by these Terms), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with Diamond Kinetics or the Diamond Kinetics Service;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
You also agree to abide by the Diamond Kinetics Community Guidelines and Moderation Policy.
Although we’re not obligated to monitor access to or use of the Diamond Kinetics Service or Content or to review or edit any User Content, we have the right to do so for the purpose of operating the Diamond Kinetics Service, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Diamond Kinetics Service and Diamond Kinetics’s systems. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Diamond Kinetics Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
10.) Member Interactions, Dealings with Third Parties.
When interacting with other Diamond Kinetics members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Diamond Kinetics Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Diamond Kinetics is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings.
You agree to indemnify, defend, and hold harmless Diamond Kinetics and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to
- your use of the Diamond Kinetics Service,
- any User Content submitted by or on behalf of you; or
- your violation of these Terms
12.) Third Party Software and Applications.
Downloading and/or installing any third party software and/or applications that are not expressly authorized by Diamond Kinetics on any Diamond Kinetics hardware constitutes a breach of these Terms; any such downloading or installation is done at your own risk and may void any applicable warranty or support commitments by Diamond Kinetics.
13.) Third Party Links and Content.
There may be links on the Diamond Kinetics Service that let you leave the particular Diamond Kinetics Service you are accessing in order to access a linked site that is operated by a third party. Diamond Kinetics neither controls nor endorses these sites, nor has Diamond Kinetics reviewed or approved the content that appears on them. Diamond Kinetics is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that Diamond Kinetics is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.
14.) No Warranties.
Diamond Kinetics reserves the right to modify the Diamond Kinetics Service, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the Diamond Kinetics Service, at any time, in its sole discretion. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Diamond Kinetics Service. Diamond Kinetics has no obligation to screen or monitor any Content and does not guarantee that any Content available on the Diamond Kinetics Service is suitable for all users or that it will continue to be available for any length of time.
Diamond Kinetics provides the Diamond Kinetics Service on an “AS IS” and “AS AVAILABLE” basis. You therefore use the Diamond Kinetics Service at your own risk. Other than as expressly provided in writing by Diamond Kinetics in connection with your purchase of a Diamond Kinetics product, to the extent permitted by law, Diamond Kinetics expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, Diamond Kinetics makes no representations or warranties:
- That the Diamond Kinetics Service is or will be permitted in your jurisdiction;
- That the Diamond Kinetics Service will be uninterrupted or error-free;
- Concerning any Content, including User Content;
- Concerning any third party’s use of User Content that you submit;
- That the Diamond Kinetics Service will meet your personal or professional needs;
- That Diamond Kinetics will continue to support any particular feature of the Diamond Kinetics Service; or
- Concerning sites and resources outside of the Diamond Kinetics Service, even if linked to from the Diamond Kinetics Service.
To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in these Terms. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE DIAMOND KINETICS SERVICE, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
15.) Limitation of Liability.
To the fullest extent permitted by law:
- Diamond Kinetics shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the Diamond Kinetics Service or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and
- Diamond Kinetics’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to Diamond Kinetics over the 12 months preceding the date your first claim(s) arose.
If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Diamond Kinetics’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Diamond Kinetics and you.
16.) Intellectual Property Rights.
You acknowledge and agree that your use of the Diamond Kinetics Services and any Content contained therein is dependent upon you agreeing to and abiding by these Terms at all times. You further acknowledge that the Diamond Kinetics Service contains software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Diamond Kinetics-generated content, and content provided to Diamond Kinetics by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions and protected under other intellectual property laws worldwide; further, as between you and Diamond Kinetics, Diamond Kinetics own intellectual property rights in the selection, coordination, arrangement and enhancement of all content in the Diamond Kinetics Service.
Diamond Kinetics Intellectual Property.
Diamond Kinetics respects the intellectual property rights of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe any third party’s copyrights, trademarks, or other intellectual property rights. While we appreciate your enthusiasm for the Diamond Kinetics brand, the Diamond Kinetics Service, and community, we ask that you respect our intellectual property rights.
As between you and Diamond Kinetics, Diamond Kinetics owns the Diamond Kinetics Service, the Content, trademarks, copyrights, patents, and any other audio-visual or static content, photographs, audio, images, illustrations, graphics, software, features, code, data, materials and information displayed on or otherwise made available through the Diamond Kinetics Service, other than content that has been licensed to us by third parties (collectively, “Diamond Kinetics IP”). This includes all intellectual property and proprietary rights in and to such Diamond Kinetics IP. As a reminder, the Diamond Kinetics Service is only for your personal, non-commercial use.
The Diamond Kinetics name, logos and affiliated properties, designs, trademarks, service marks, trade names and trade dress (collectively, “Trademarks”) are the exclusive property of Diamond Kinetics Interactive, Inc. and/or its affiliates, whether registered or unregistered, and may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product or service. Nothing contained on the Diamond Kinetics Service or in these Terms should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our Trademarks or other intellectual property without our express prior written consent.
Any other trademarks appearing on the Diamond Kinetics Service are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content that they make available through the Diamond Kinetics Service. All rights not expressly granted in these Terms are reserved.
Diamond Kinetics Intellectual Property Restrictions and Reservations.
Except as expressly permitted by Diamond Kinetics, you may not download, display, copy, distribute, modify, perform, transfer, use, license, sublicense, create derivative works from, sell or otherwise exploit any Diamond Kinetics IP. Additionally, you are not permitted to alter, delete or conceal in any manner any copyright, Trademark, or other notices contained on the Diamond Kinetics Service, including, without limitation, notices on any Content you transmit, display, print, stream, or interact with on the Diamond Kinetics Service. Any unauthorized or prohibited use of any Diamond Kinetics IP may violate or infringe copyrights or other intellectual property laws of the United States and other countries, as well as applicable local and state laws, and may subject you to liability for such unauthorized use.
Diamond Kinetics retains all right, title and interest in and to the Diamond Kinetics IP, and except for the limited rights and licenses granted to you under these Terms, nothing shall be construed to restrict, impair, encumber, license, alter, deprive or adversely affect the Diamond Kinetics IP, or any of Diamond Kinetics’s rights or interests therein.
Third Party Intellectual Property Infringement. If you believe that the Diamond Kinetics Service or any Content (including User Content) infringes or misappropriates your intellectual property rights or the intellectual property rights of others (other than copyrights), please submit written notice to us at 700 River Avenue, Pittsburgh, PA 15212.
Copyright Infringement. We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Website infringe your copyright, you may request removal of those materials (or access to them) from the Website by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- Your name, address, telephone number, and email address.
- A description of the copyrighted work that you claim has been infringed.
- A description of where on the Diamond Kinetics Site the material that you claim is infringing may be found, sufficient for Diamond Kinetics to locate the material (e.g., the URL).
- A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
- A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
- Your electronic or physical signature.
You may submit this information, or any counter-notice, via:
- Mail: Diamond Kinetics, 700 River Avenue, Suite 540, Pittsburgh, PA 15212, Attn: Copyright Agent
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
17.) Intellectual Property Usage and Reporting Infringement.
Diamond Kinetics respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe any third party’s right or other intellectual property rights. If you believe that the Diamond Kinetics Service or any Content contains elements that infringe or misappropriate your copyrights or other intellectual property rights (or the intellectual property rights of others), please go to the Diamond Kinetics Intellectual Property and DMCA Policy for directions on how to report it to us.
18.) ARBITRATION REQUIREMENT & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.
Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Diamond Kinetics agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms and that you and Diamond Kinetics are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
Exceptions and Opt-out. As limited exceptions to Section 18 (Mandatory Arbitration of Disputes) above:
- you may seek to resolve a Dispute in small claims court if it qualifies; and
- we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights.
In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of Diamond Kinetics’s Legal Department at the Diamond Kinetics address set out in Section 20 below within 30 days following the date you first agree to these Terms.
Initial Dispute Resolution and Notification. You agree that before initiating any Dispute or arbitration proceeding, we will attempt to negotiate an informal resolution of any dispute. To begin this process, before initiating any arbitration proceeding, you must send a Notice of Dispute (“Notice”) by certified mail to the attention of Diamond Kinetics’s Legal Department at the Diamond Kinetics address set out in Section 20 below. In the Notice, you must describe the nature and basis of the Dispute and the relief you are seeking. If we are unable to resolve the Dispute within 45 days after Diamond Kinetics’s receipt of the Notice, then you or Diamond Kinetics may initiate arbitration proceedings as set out below.
Conducting Arbitration and Arbitration Rules. Any arbitration will be conducted by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Terms is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. During the arbitration, both you and Diamond Kinetics may take one deposition of the opposing party, limited to 4 hours. If we cannot agree on a time and location for a deposition, the arbitrator will resolve any scheduling disputes. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
Class Action Waiver. You agree to an arbitration on an individual basis. In any dispute, YOU WILL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If this specific provision is found to be unenforceable, then the entirety of this Section 18 shall be null and void.
Effect of Changes on Arbitration. Notwithstanding the provisions of Section 20 “Modification”, if Diamond Kinetics changes any of the terms of this Section 18 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of Diamond Kinetics’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Diamond Kinetics in accordance with the terms of this Section 18as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Severability. With the exception of any of the provisions in Section 18, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
19.) Governing Law and Jurisdiction.
All matters relating to the Diamond Kinetics Service and these Terms, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction). The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
Any legal suit, action, or proceeding arising out of, or related to, these Terms shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania, in each case located in the City of Pittsburgh in Allegheny County, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
20.) General Provisions.
Interpretation; Severability; Waiver; Remedies.
Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by Diamond Kinetics in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Diamond Kinetics. Diamond Kinetics’s rights and remedies hereunder are cumulative and not exclusive.
Successors; Assignment; No Third Party Beneficiaries.
These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without Diamond Kinetics’s prior written consent. Diamond Kinetics may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.
You consent to receive all communications including notices, agreements, disclosures, or other information from Diamond Kinetics electronically. Diamond Kinetics may communicate by email or by posting to the Diamond Kinetics Service. For support-related inquiries, you may email Support. For all other notices to Diamond Kinetics, write to the following address:
Diamond Kinetics, Inc.
700 River Avenue, Suite 600
Pittsburgh, PA 15212
Nothing in these Terms or otherwise limits Diamond Kinetics’s right to object to subpoenas, claims, or other demands.
We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know by, at a minimum, posting the updated Terms (as indicated by a revised “Last Updated” date at the top of this page) on the Diamond Kinetics Site and/or through the Diamond Kinetics Service. Modifications will be effective on the date that they are posted to the Diamond Kinetics Site. It’s important that you review the Terms whenever we update them before you use the Diamond Kinetics Service. If you continue to use the Diamond Kinetics Service after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 20(7) “Effect of Changes on Arbitration,” you may not use the Diamond Kinetics Service anymore. Because the Diamond Kinetics Service is evolving over time we may change or discontinue all or any part of the Diamond Kinetics Service, at any time and without notice, at our sole discretion.
These Terms incorporate the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the Diamond Kinetics Site from time to time:
- Membership Terms
In the event of a conflict between any policies posted on the Diamond Kinetics Service and these Terms, these Terms will control. These Terms represent the entire understanding between Diamond Kinetics and you regarding the Diamond Kinetics Service or Content and supersede all prior agreements and understandings regarding the same. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms (other than for delay in the payment of money due and payable in accordance with these Terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.