Kontena Terms of Service
Effective as of: October 21, 2016
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS GOVERN YOUR USE OF THE KONTENA.IO WEBSITE, AS WELL AS KONTENA’S SERVICE AND API (EACH AS DEFINED BELOW) UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU THAT EXPRESSLY SUPERSEDES THEM. BY USING WEBSITE OR ANY PART OF THE KONTENA CLOUD (AS DEFINED BELOW), REGISTERING KONTENA ACCOUNT OR CLICKING "I ACCEPT" BELOW, YOU ARE CONFIRMING THAT YOU AND/OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU” OR “YOUR”) UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH KONTENA. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
1. THE AGREEMENT
1.1 The kontena.io website and its sub-domains (the “Website”), Kontena’s proprietary hosted online services (the “Kontena Cloud”), and Kontena’s application programming interfaces related to Kontena Cloud (the “API” and collectively with Website, Kontena Cloud the “Services”) are owned by Kontena, Inc. and/or its affiliates (collectively “Kontena”, “we” or “our”). By accessing or using any text, data, information, software, graphics, and other content (collectively “Kontena Materials”), or any part of the Services that Kontena may make available to you, you agree that you have read and agree to be bound by and a party to the terms and conditions of this agreement ("Agreement"). If you are entering into this Agreement on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind, and do hereby bind, that entity to this Agreement. You cannot use the Services if you do not accept this Agreement.
1.2 For avoidance of doubt, this Agreement does not cover any Kontena software distributed to you for installation and use in connection with the Kontena Cloud or API. For example, the locally installed Kontena Container Platform software and source code is made available to you under the Apache 2.0 license on GitHub at address https://github.com/kontena/kontena (“Kontena Container Platform”). Therefore, your use of the Kontena Container Platform software and source code shall be governed by Apache 2.0 license and nothing in this Agreement will limit your rights to do so. Other Kontena software may be distributed under separate software license terms.
1.3 Kontena may modify or discontinue Services and/or features or elements of Services at any time and without notifying you. Kontena may, from time to time, make changes to this Agreement. When such changes are made, Kontena will make the updated Agreement available and accessible through the Website or Kontena Cloud, or by sending a notice to you via email. You shall be responsible for reviewing and becoming familiar with any such modifications. Your continued use of any part of the Services following such notification constitutes your acceptance of the modified Agreement. This Agreement may also be superseded by expressly-designated legal notices or terms applicable to specific features or services. These expressly-designated legal notices or terms are incorporated into this Agreement and supersede the provision(s) of this Agreement that are designated as being superseded.
2. GENERAL USE
2.1 Kontena grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Kontena Materials displayed on the Website and, if applicable to the services you have ordered, to access and use the Kontena Cloud and API. Your right to do so is conditioned on your full compliance with this Agreement. You have no rights in any Kontena Materials or Services other than as stated in this Agreement and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any Kontena Materials or Services in any manner. If you make copies of any Kontena Materials then you must keep on such copies all of our copyright and other proprietary notices as they appear on the Kontena Materials.
2.2 By using any of the Kontena Materials or Services, you agree that you are at least 18 years of age, or if you are under 18 years of age (a “Minor”), that you are using the Kontena Materials or Services with the consent of your parent or legal guardian. If you are a parent or legal guardian of a Minor, you agree to bind the Minor to this Agreement and to fully indemnify and hold us harmless if the Minor breaches any of the terms of this Agreement.
2.3 If you breach any of the terms of this Agreement, the above license will terminate automatically and you must immediately destroy any downloaded or printed Kontena Materials (and any copies thereof).
3. KONTENA ACCOUNT
3.1 The use of some features of the Services may require signing up and registering for a personal account with Kontena (“Kontena Account”). If you choose to register for a Kontena Account, you shall provide accurate, complete, and up-to-date registration information. Once you submit the required registration information, we will determine whether or not to approve your proposed account. If approved, you will be permitted to log in to your Kontena Account with your new user name and password. Depending on the services for which you have subscribed, Kontena may issue you one or more authentication keys or tokens (“Tokens”). You are responsible all use of your Kontena Account and for the security of your password and any Tokens that may be used to access and use your Kontena Account or certain Services. If you become aware of any unauthorized use of your Kontena Account, you agree to notify Kontena immediately, change your password, and revoke all tokens.
3.2 Your Kontena Account is personal to you and you are allowed to create single Kontena Account for yourself. You are not allowed to create Kontena Accounts for others and you are not allowed to create multiple Kontena Accounts for yourself or others.
3.3 Some features of the Services may have usage limits. Kontena reserves the right to enforce usage limits in its sole discretion. Repeated exceeding of the usage limits may lead to suspension or termination of your Kontena Account.
4. USING THE SERVICES AND API
4.1 If you have a Kontena Account and have signed up to use the the Kontena Cloud, then subject to your compliance with this Agreement, including, without limitation, your payment of all applicable fees, we hereby grant you a limited, revocable, non-transferable non-exclusive, non-sublicensable license to access and use the Kontena Cloud and display the Kontena Materials accessible therein, in each case solely for your internal business purposes.
4.2 If you have signed up to use the API, then subject to your compliance with our API documentation (“Documentation”) and this Agreement, including, without limitation, your payment of all applicable fees, we hereby grant you an additional limited, revocable, non-transferable non-exclusive, non-sublicensable license to access and use the API and the Documentation, solely for your own internal business use, and not for timesharing, application service provider or service bureau use. You acknowledge and agree that your use of the API may be subject to volume and other restrictions imposed by us from time to time. We may monitor your use of the API to ensure quality, improve our products and services, and verify your compliance with this Agreement and the Documentation.
4.3 Except for the foregoing licenses, you have no other rights in the Kontena Cloud or API and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit the Kontena Cloud or API in any manner. All rights not granted in this Agreement are reserved.
5. AVAILABILITY OF THE SERVICES
5.1 Services or some features of Services may be unavailable at certain times, including during any unanticipated or unscheduled downtime or as a result of system failures or force majeure events. If you have a current Kontena Account, we will use commercially reasonable efforts to provide you with information regarding any such interruptions and the restoration of use of, and access to, Services following any interruption.
5.2 We may temporarily or permanently suspend your access to any portion or all of the Services if we reasonably determine that: (a) there is a threat or attack targeting Services (including a denial of service attack) or other event that may create a risk to the Services or users of the Services; (b) your use of the Services disrupts or poses a security risk to the Services or any other user of the Services, may harm our systems, or may subject us or any third party to liability; (c) you are using the Services for fraudulent or illegal activities; (d) you are using the Services in breach of this Agreement; (e) you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding (collectively, "Service Suspensions"). If you are an affected subscriber, we will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to you. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.
7. FEES & PAYMENTS.
7.1 Kontena reserves the right to require payment of fees from you for certain services and features made available to you via Services. If you choose to subscribe to any features that carry a fee, you shall pay all applicable fees, as described in the then applicable price list for the features you select.
7.2 When you subscribe to a feature that carries a fee (“Subscription”), we will invoice you for your first fee on the date that we process the order for your Subscription. We may suspend or terminate your Kontena Account and/or access to any or all of the Services if your payment is late and/or your offered payment method cannot be processed.
7.3 All fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to your use of the Services (collectively, “Taxes”). You are solely responsible for the payment of any such Taxes. In the event we are required to pay Taxes on your behalf, you shall promptly reimburse us for all amounts paid.
7.4 Kontena reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email to an email address associated with your Kontena Account, or made available to you through the Services. Your use of the Kontena Cloud or API following such notification constitutes your acceptance of any new or increased charges.
8. USER CONTENT
8.1 Some of the features of the Services allow you and other users to submit and share information, data, text, messages or other content with other users (collectively, “User Content”). You retain full ownership of the User Content you have created. You are solely responsible for your User Content and may not upload, post or otherwise make available any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether you have sufficient permission to share such information is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any User Content you provide. Except as otherwise explicitly stated herein for Private User Content (as described below), you understand and agree that all User Content is considered both non-confidential and non-proprietary.
8.2 Unless your User Content is Private User Content (as described below), by uploading or submitting User Content through the Services, you hereby grant Kontena an irrevocable, sublicensable, worldwide, non-exclusive, fully paid-up, royalty-free license to
• Reproduce, reformat, modify, translate, distribute, make available and display your User Content (or any modification thereto), in whole or in part, in any format or medium now known or later developed; and
• Use (and permit others to use) your User Content in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in our sole discretion (including, without limitation, to incorporate your User Content or any modification thereto, in whole or in part, into any technology, product, or service);
8.3 You are solely responsible for your non-private User Content and the consequences of posting or publishing them. In connection with non-private User Content, you affirm, represent, and warrant that:
• you either own such User Content or have the necessary licenses, rights, consents, and permissions to grant the rights and licenses granted in this Agreement,
• Kontena’s exercise of the license rights granted in this Agreement, does not and will not require obtaining a license from or paying any fees and/or royalties by Kontena to any third party ;
• Your User Content does not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
• You voluntarily agree to waive all "moral rights" that you may have in your User Content;
• Any information contained in your User Content is not known by you to be false, inaccurate, or misleading;
• Your User Content does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
• Your User Content is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another's privacy;
• You were not and will not be compensated or granted any consideration by any third party for submitting your User Content;
• Your User Content does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own);
• Your User Content does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files; and
• Your User Content does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
8.4 Some of the Services provide you an option to choose to make certain User Content available for viewing only for limited number of users (“Private User Content”). By uploading or submitting Private User Content through the Services, you hereby grant Kontena an irrevocable, sublicensable, worldwide, non-exclusive, fully paid-up, royalty-free license to reproduce, reformat, modify, translate, distribute, make available and display your Private User Content (or any modification thereto), in whole or in part, in any format or medium now known or later developed, for purposes of providing the Private User Content to you and the users you designate.
8.5 You are solely responsible for your Private User Content and the consequences of posting or publishing it. In connection with Private User Content, you affirm, represent, and warrant that:
• you either own such Private User Content or have the necessary licenses, rights, consents, and permissions to grant the rights and licenses granted in this Agreement,
• Kontena’s exercise of the license rights granted in this Agreement, does not and will not require obtaining a license from or paying any fees and/or royalties by Kontena to any third party ;
• Your Private User Content does not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
• Your Private User Content does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
• Your Private User Content does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files; and
• Your Private User Content does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
8.6 You understand that User Content made available on or through the Services comes from a variety of sources and that Kontena does not endorse and is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such User Content. You understand that Kontena cannot, does not, and has no obligation to review all User Content and does not endorse any User Content. You further understand and acknowledge that you may be exposed to User Content that is inaccurate, misleading, infringing, or otherwise objectionable. We do not guarantee that you will be able to edit or delete any User Content you have submitted. Kontena reserves the right to edit or remove any User Content at any time without prior notice. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Kontena with respect to your User Content and any User Content with which you may interact through your use of Services.
9. UNAUTHORIZED ACTIVITIES
9.1 Your use of the Services is only for the purposes permitted in this Agreement. Any other use beyond such purposes is prohibited and, therefore, constitutes unauthorized use of our intellectual property. Unauthorized use may result in violation of various United States and international copyright laws. Unless you have written permission from Kontena expressly stating otherwise, you may not use Services in any of the following ways (these are examples only and the list below is not a complete list of everything that you are not permitted to do):
• In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of Services or Kontena Materials;
• In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
• To stalk, harass, or harm another individual;
• To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
• To interfere with or disrupt the Services, or the servers or networks connected to the Services;
• To use any data mining, robots, or similar data gathering or extraction methods in connection with the Services;
• Attempt to use the Services in a way that is intended to avoid incurring fees or exceed usage limits;
• Attempt to gain unauthorized access to any portion of Services, or any other accounts, computer systems, or networks associated with the Services, whether through hacking, password mining, or any other means.
10. PROPRIETARY RIGHTS. You acknowledge and agree that Kontena owns all legal right, title and interest in and to the Services and the Kontena Materials. The visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, domain names, and all other elements of the Services and the Kontena Materials are protected by international copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Content owned and/or posted by you or other users, all Kontena Materials are the copyrighted property of Kontena. Furthermore, all trademarks, service marks, and trade names contained in the Kontena Materials are proprietary to Kontena. Except as expressly set forth herein, your use of the Services and/or Kontena Materials does not grant you ownership of or any other rights with respect to any content, code, data, user comments or other materials that you may access on or through the Services. Kontena reserves all rights not expressly granted in the Agreement.
11. INTELLECTUAL PROPERTY INFRINGEMENT
11.1 Kontena respects the intellectual property rights of others and encourage you to do the same. Accordingly, we have a policy of removing User Content that violates intellectual property rights of others, suspending access to the Services (or any portion thereof) to any user who uses the Services in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the Kontena Account of any user who uses the Services in violation of someone’s intellectual property rights.
11.2 Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of the Services, please provide written notice to our Agent for notice of claims of infringement:
Kontena, Inc. attn.: Sami Ahvenniemi, 1370 Willow Road, Suite 200, Menlo Park, CA 94025, USA
To be sure the matter is handled immediately, your written notice must:
• Contain your physical or electronic signature;
• Identify the copyrighted work or other intellectual property alleged to have been infringed;
• Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
• Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
• Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;
• Contain a statement that the information in the written notice is accurate; and
• Contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
11.3 Kontena reserves the right, in its sole discretion, to terminate the Kontena Account and disable access to Services of any user who is the subject of repeated DMCA or other infringement notifications.
12. FEEDBACK. You may provide comments, bug reports, ideas or other feedback to Kontena about the Services or Kontena Materials, including without limitation about how to improve the Services or any other Kontena products ("Feedback"). By submitting any Feedback, you agree that Kontena is free to use such Feedback at its discretion and without any additional compensation to you. You hereby grant Kontena a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
13. THIRD-PARTY SERVICES. As part of providing the Services, Kontena may make services developed and maintained by third-parties available to you ("Third-Party Services"). You acknowledge that your use of any Third-Party Services may be subject to additional fees, a separate agreement between you and the Third-Party Services provider, and that Kontena shall not be a party to any such agreement. Your use of such Third-Party Services is at your own risk and Kontena does not endorse and is not responsible for the accuracy, functionality, usefulness, or intellectual property rights of or relating to any Third-Party Services.
14. EXTERNAL SITES. Services may include hyperlinks to other web sites or resources (collectively, “External Sites”). Such links are provided solely as a convenience to our users and Kontena has no control over any External Sites which are provided by companies or persons other than Kontena. You acknowledge and agree that Kontena is not responsible for the availability of any External Sites, and does not endorse any advertising, products or other materials on or available from the External Sites. If you decide to access any of the External Sites linked to from the Services, you do so entirely at your own risk and you must follow the privacy policies and terms and conditions for those External Sites.
11.1 Kontena may terminate this Agreement at its sole discretion at any time without prior notice or liability.
11.2 You may terminate this Agreement at any time by deleting your Kontena Account and discontinuing your use of the Services.
11.3 Upon any termination or expiration of this Agreement, whether by you or Kontena, any information (including User Content) that you have submitted on or through the Services may no longer be accessed by you and Kontena will have no obligation to maintain any such information in its storage, databases or to forward any such information to you or any third party. You are solely responsible for retrieving your User Content from the Kontena Cloud prior to termination of your account. If we terminate the Agreement or disable your Kontena Account other than as a result of your breach of this Agreement, we will provide you a reasonable opportunity to retrieve your User Content.
11.4 Upon any termination of this Agreement, Sections 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19, and 20 shall survive.
16. EXCLUSION OF WARRANTIES
12.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES AND KONTENA MATERIALS IS AT YOUR SOLE RISK AND THAT THE SERVICES AND KONTENA MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KONTENA MAKES NO EXPRESS WARRANTIES AND DISCLAIMS ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, CORRECTNESS, ACCURACY AND RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KONTENA DOES NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (III) ANY DATA PROVIDED THROUGH THE SERVICES WILL BE ACCURATE; OR (IV) THE SERVICES, KONTENA MATERIALS, USER CONTENT, OR ANY OTHER CONTENT OR FEATURE MADE AVAILABLE ON OR THROUGH THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
17. LIMITATION OF LIABILITY
17.1 IN NO EVENT WILL KONTENA BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE OR PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS, EVEN IF KONTENA OR A KONTENA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17.2 KONTENA’S TOTAL AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE GREATER OF (I) THE AGGREGATE AMOUNTS PAID BY YOU TO KONTENA UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE, OR (II) US$ 1. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT OUR ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
17.3 You acknowledge and agree that Kontena makes the Services and Kontena Materials available to you and enters into this Agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and Kontena, and that the warranty disclaimer and the limitations of liability set forth herein form an essential basis of the bargain between you and Kontena. Kontena would not be able to provide the Services or Kontena Materials to you without these limitations.
18. INDEMNIFICATION. You agree to hold harmless and indemnify Kontena and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to (i) your breach of the Agreement; (ii) your violation of applicable laws, rules or regulations in connection with your use of the Services or Kontena Materials; or (iii) your User Content, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such case, Kontena will provide you with written notice of such claim, suit or action; will provide you the opportunity to control the defense and/or settlement of such claim, suit or action; and will provide you reasonable assistance in such defense or settlement, upon reasonable request.
19. DISPUTE RESOLUTION AND ARBITRATION
Please read this Dispute Resolution and Arbitration section carefully. It affects your rights.
19.1 This Dispute Resolution and Arbitration section (the “Provision”) facilitates the prompt and efficient resolution of any disputes that may arise between you and Kontena. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
19.2 For the purpose of this Provision, “Kontena” means Kontena and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Kontena regarding any aspect of your relationship with Kontena, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Kontena’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
19.3 YOU AND KONTENA EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
19.4 For all Disputes, whether pursued in court or arbitration, you must first give Kontena an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Kontena, Inc., 1370 Willow Road, Suite 200, Menlo Park, CA 94025; Email: email@example.com. That written notification must include (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If Kontena does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
19.5 Notwithstanding the above, you or Kontena may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; (b) in the case of Kontena, Kontena seeks injunctive relief pursuant to Section 20.5, below; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Kontena, Inc., 1370 Willow Road, Suite 200, Menlo Park, CA 94025; Email: firstname.lastname@example.org. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Kontena through arbitration. Your decision to opt-out of this Provision will have no adverse effect on your relationship with Kontena Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
19.6 If this Provision applies and the Dispute is not resolved as provided above either you or Kontena may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision. For Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879.
19.7 Because the Services and this Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
19.8 The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
19.9 You or Kontena may initiate arbitration in either San Francisco, California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, Kontena may transfer the arbitration to San Francisco, California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
19.10 Kontena will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Kontena as provided above and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
19.11 Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Kontena specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
19.12 You understand and agree that by entering into this Agreement you and Kontena are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Kontena might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
19.13 If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
19.14 This Provision shall survive the termination of your service with Kontena. Notwithstanding any provision in this Agreement to the contrary, we agree that if Kontena makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Kontena to adhere to the language in this Provision if a dispute between us arises.
20.1 The Agreement constitutes the entire agreement between you and Kontena regarding your use of the Services and Kontena Materials and completely replaces any prior agreements between you and Kontena in relation to the Services and Kontena Materials.
20.2 If Kontena provides you with a translation of the English language version of this Agreement, the English language version of this Agreement will control if there is any conflict.
20.3 You agree that Kontena may provide you with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on the Service. By providing Kontena your email address, you consent to receiving electronic communications from us in lieu of communication by postal mail. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. You may provide us with legal notices via email to email@example.com.
20.4 The entire Agreement, and your relationship with Kontena, shall be governed by the laws of the State of California without regard to its conflict of law’s provisions. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to this Agreement will be heard in courts located in San Francisco, California.
20.5 Any unauthorized use or disclosure of Kontena’s intellectual property may cause immediate and irreparable injury to the Kontena and, not withstanding anything to the contrary in this Agreement, in the event of such unauthorized use and/or disclosure, the Kontena will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
20.6 You may not assign or transfer any of your rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent, and any attempt by you to do so without our consent will be null and void. Kontena can assign this Agreement in its entirety in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our business or assets.
20.7 In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to that provision. Any provision that can't be modified or reformed in this way will be deemed deleted, and the remaining provisions of this Agreement will continue in full force and effect.
20.8 We will be excused from performing under this Agreement to the extent that we're unable to perform due extraordinary causes beyond our reasonable control. Such causes may include, but are not limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.
20.9 You and Kontena are independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.
20.10 To the extent the terms of any purchase order, written terms or conditions, or other document that you submit to us that contains terms that are different from, in conflict with, or in addition to the terms of this Agreement, such terms are hereby rejected by Kontena, and will be void and of no effect.
20.11 We may identify you as a customer to current and prospective clients. You hereby give us the permission to use your logo and name in any of our marketing materials, including our Services.
21. CONTACT US. If you have any questions about this Agreement or otherwise need to contact us for any reason, you can reach us at firstname.lastname@example.org.