TERMS

KONG IQ Terms and Conditions of Use

Effective as of July 1, 2019.

Hello, and welcome to KONGIQ. Please read our Terms and Conditions of Use (“Terms”) and Privacy Policy carefully because they affect your legal rights, including an agreement to resolve any disputes that may arise between us by arbitration on an individual basis instead of by class actions or jury trials.

1. Introduction

Thanks for choosing KONGIQ, an application owned by Vivature, Inc. (“KONGIQ”, “we”, “us”, “our”). By signing up or otherwise using the KONGIQ Service, websites, and software applications (together, the “KONGIQ Service” or “Service”), or accessing any content or material that is made available by KONGIQ through the Service (the “Content”) you are entering into a binding contract with Vivature Inc.

The KONGIQ Service includes social and interactive features and relies on several technical requirements.

Your agreement with us includes these Terms and Conditions of Use (“Terms”) and our Privacy Policy. (The Terms, Privacy Policy, and any additional terms that you agree to, as discussed in the Entire Agreement section, are referred to together as the “Agreements”.) If you wish to review the terms of the Agreements, the effective version of the Agreements can be found on Vivature website. You acknowledge that you have read and understood the Agreements, accept these Agreements, and agree to be bound by them. If you don’t agree with (or cannot comply with) the Agreements, then you may not use the KONGIQ Service or consume any Content.

Please read the Agreements carefully. They cover important information about KONGIQ Services provided to you and any charges, taxes, and fees which may be billed and who may access the information obtained and managed through KONGIQ Services. The Agreements include information about future changes to the Agreements, export controls, automatic renewals, limitations of liability, privacy information, a class action waiver, and resolution of disputes by arbitration instead of in court.

Any information that you provided during sign-up can be corrected during the sign-up process by returning to the previous screens and correcting erroneous information.

In order to use the KONGIQ Service and access the Content, you need to (1) be 18 or older, or be 13 or older and have your parent or guardian’s consent to the Agreements, (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and (3) be resident in the United States, the United Kingdom, the European Union or Switzerland. You also promise that any registration information that you submit to KONGIQ is true, accurate, and complete, and you agree to keep it that way at all times.

2. Changes to the Agreements

Occasionally we may, in our discretion, make changes to the Agreements. When we make material changes to the Agreements, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending you an email. In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Agreements, you may terminate the Agreements by contacting us through our Privacy contact page.

3. Enjoying KONGIQ

Here’s some information about all the ways you can enjoy KONGIQ.

3.1 Our Services & Cost Associated with those Services

KONGIQ provides services related to your exercise routine related to athletic team participation, which includes Athletic Data tracking, performance assessment, body composition measurement, injury tracking and management, and strength coaching. KONGIQ Services are provided to users free-of-charge, but a fee may be paid by your educational institution or sports entity (professional and/or amateur).

4. Rights we grant you

The KONGIQ Service and the Content are the property of Vivature Inc. or KONGIQ’s licensors. We grant you a limited, non-exclusive, revocable license to make use of the KONGIQ Service, and a limited, non-exclusive, revocable license to make personal, non-commercial, entertainment use of the Content (the “License”). This License shall remain in effect until and unless terminated by you or KONGIQ. You promise and agree that you are using the Content for your own personal, non-commercial, entertainment use and that you will not redistribute or transfer the KONGIQ Service or the Content.

The KONGIQ software applications and the Content are licensed, not sold, to you, and Vivature, Inc. and its licensors retain ownership of all copies of the KONGIQ software applications and Content even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices (“Devices”).

All KONGIQ trademarks, service marks, trade names, logos, domain names, and any other features of the KONGIQ brand (“KONGIQ Brand Features”) are the sole property of Vivature, Inc. or its licensors. The Agreements do not grant you any rights to use any KONGIQ Brand Features whether for commercial or non-commercial use.

You agree to abide by our User guidelines and not to use the KONGIQ Service, the Content, or any part thereof in any manner not expressly permitted by the Agreements. Except for the rights expressly granted to you in these Agreements, Vivature, Inc. grants no right, title, or interest to you in the KONGIQ Service or Content.

Third-party software (for example, open source software libraries) included in the KONGIQ Service are licensed to you either under the Agreements or under the relevant third-party software library’s license terms as published in the help or settings section of our desktop and mobile client and/or on our website.

5. Third-party Applications

The KONGIQ Service may be integrated with third-party applications, websites, and services (“Third-party Applications”) to make available content, products, and/or services to you. These Third-party Applications may have their own terms and conditions of use and privacy policies and your use of these Third-party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that Vivature, Inc. does not endorse and is not responsible or liable for the behavior, features, or content of any Third-party Application or for any transaction you may enter into with the provider of any such Third-party Applications.

6. User-Generated Content

KONGIQ users may post, upload, and/or contribute (“post”) content to the Service (“User Content”), which includes any such content posted to the KONGIQ Support as well as any other part of the KONGIQ Service.

You promise that, with respect to any User Content you post on KONGIQ, (1) you have the right to post such User Content, and (2) such User Content, or its use by KONGIQ as contemplated by the Agreements, does not violate the Agreements, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by KONGIQ, Vivature Inc., or any entity or individual without express written consent from such individual or entity.

KONGIQ may, but has no obligation to, monitor, review, or edit User Content. In all cases, KONGIQ reserves the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in KONGIQ’s sole discretion, violates the Agreements. KONGIQ may take these actions without prior notification to you or any third-party. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.

You are solely responsible for all User Content that you post. Vivature, Inc. is not responsible for User Content nor does it endorse any opinion contained in any User Content. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST KONGIQ RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD VIVATURE, INC. HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.

7. Rights you grant us

In consideration for the rights granted to you under the Agreements, you grant us the right (1) to allow the KONGIQ Service to use the processor, bandwidth, and storage hardware on your Device in order to facilitate the operation of the Service, (2) to provide advertising and other information to you, and (3) to allow our business partners to do the same. In any part of the KONGIQ Service, the Content you view, including its selection and placement, may be influenced by commercial considerations, including agreements with third parties. Some Content licensed, provided to or otherwise made available by KONGIQ (e.g. podcasts) may contain advertising as part of the Content. In such cases, KONGIQ will make such Content available to you unmodified.

If you provide feedback, ideas or suggestions to KONGIQ in connection with the KONGIQ Service or Content (“Feedback”), you acknowledge that the Feedback is not confidential, and you authorize KONGIQ to use that Feedback without restriction and without payment to you. Feedback is considered a type of User Content.

You grant Vivature, Inc. a non-exclusive, transferable, sub-licensable, royalty-free, perpetual (or, in jurisdictions where this is not permitted, for a term equal to the duration of the Agreements plus twenty (20) years), irrevocable, fully paid, worldwide license to use, reproduce, make available to the public (e.g. perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Content in connection with the Service through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content. Where applicable and permitted under applicable law, you also agree to waive any “moral rights” (or the equivalent under applicable law) such as your right to be identified as the author of any User Content, including Feedback, and your right to object to derogatory treatment of such User Content.

8. User guidelines

Vivature, Inc. respects intellectual property rights and expects you to do the same. We’ve established a few ground rules for you to follow when using the Service, to make sure KONGIQ stays enjoyable for everyone. Please follow these rules and encourage other users to do the same.

The following is not permitted for any reason whatsoever:

  • copying, redistributing, reproducing, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the KONGIQ Service or the Content, or otherwise making any use of the KONGIQ Service or the Content which is not expressly permitted under the Agreements or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the KONGIQ Service or the Content or any part of it;
  • using the KONGIQ Service to import or copy any local files you do not have the legal right to import or copy in this way;
  • transferring copies of cached Content from an authorized Device to any other Device via any means;
  • reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the KONGIQ Service, Content or any part thereof unless permitted by applicable law;
  • circumventing any technology used by Vivature, Inc., its licensors, or any third-party to protect the Content or the Service;
  • selling, renting, sublicensing or leasing of any part of the KONGIQ Service or the Content;
  • circumventing any territorial restrictions applied by Vivature, Inc. or its licensors;
  • artificially increasing User Content or otherwise manipulating the Services by using a script or other automated process;
  • removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the KONGIQ Service (including for the purpose of disguising or changing any indications of the ownership or source of any Content);
  • providing your password to any other person or using any other person’s username and password;
  • “crawling” the KONGIQ Service or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from KONGIQ, Vivature Inc., or its licensors; or
  • selling a user account, or otherwise accepting any compensation, financial or otherwise, to influence the name of an account or the content included on an account.

Please respect KONGIQ, the owners of the Content, and other users of the KONGIQ Service. Don’t engage in any activity, post any User Content, or register and/or use a username, which is or includes material that:

  • is offensive, abusive, defamatory, pornographic, threatening, or obscene;
  • is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of Vivature, Inc. or a third-party;
  • includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data;
  • includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Service;
  • is intended to or does harass or bully other users;
  • impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;
  • uses automated means to artificially promote content;
  • involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar, including through the KONGIQ inbox;
  • involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by KONGIQ;
  • links to, references, or otherwise promotes commercial products or services, except as expressly authorized by KONGIQ;
  • interferes with or in any way disrupts the KONGIQ Service, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Service or the computer systems for the KONGIQ Service, Vivature, Inc., or its affiliates, network, usage rules, or any of KONGIQ’s security components, authentication measures or any other protection measures applicable to the Service, the Content or any part thereof; or
  • conflicts with the Agreements, as determined by KONGIQ.

You acknowledge and agree that posting any such User Content may result in immediate termination or suspension of your KONGIQ account. You also agree that KONGIQ may also reclaim your username for any reason.

Please be thoughtful about how you use the KONGIQ Service and what you share. The KONGIQ Service includes social and interactive features, including the ability to post User Content, share content, and make certain information about you public. Remember that shared or publicly available information may be used and re-shared by other users on KONGIQ or across the web, so please use KONGIQ carefully and be mindful of your account settings. KONGIQ has no responsibility for your choices to post material on the Service.

Your password protects your user account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Service. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately and change your password as soon as possible.

9. Infringement and reporting User Content

Vivature, Inc. respects the rights of intellectual property owners. If you believe that any Content infringes your intellectual property rights or other rights, see Vivature, Inc.’s copyright policy. If Vivature, Inc. is notified by a copyright holder that any Content infringes a copyright, Vivature, Inc. may in its absolute discretion take actions without prior notification to the provider of that Content. If the provider believes that the content is not infringing, the provider may submit a counter-notification to Vivature, Inc. with a request to restore the removed content.

If you believe that any Content does not comply with the User guidelines, please email us through our Privacy Contact page.

10. Service limitations and modifications

Vivature, Inc. will make reasonable efforts to keep the KONGIQ Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, Vivature, Inc. reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the KONGIQ Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the KONGIQ Service or any function or feature thereof. You understand, agree, and accept that Vivature, Inc. has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. This section will be enforced to the extent permissible by applicable law. KONGIQ and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.

11. Customer support

For customer support with account-related questions (“Customer Support Queries”), please submit a ticket to our Customer Service department using the Customer Service contact form on the About Us section of our website. We will use reasonable endeavors to respond to all Customer Support Queries within a reasonable timeframe, but we make no guarantees or warranties of any kind that any Customer Support Queries will be responded to within any particular time frame and/or that we will be able to satisfactorily answer any such queries.

12. Export control

Vivature, Inc.’s products may be subject to U.S. export and re-export control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that you are (1) not located in Cuba, Iran, North Korea, Sudan, or Syria; and (2) are not a denied party as specified in the regulations listed above.

You agree to comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you agree that you shall not – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Vivature, Inc. under the Agreements to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of the Agreements.

13. Term and termination

The Agreements will continue to apply to you until terminated by either you or Vivature, Inc. However, you acknowledge and agree that the perpetual license granted by you in relation to User Content, including Feedback, is irrevocable and will therefore continue after expiry or termination of any of the Agreements for any reason. Vivature, Inc. may terminate the Agreements or suspend your access to the KONGIQ Service at any time, including in the event of your actual or suspected unauthorized use of the KONGIQ Service and/or Content, or non-compliance with the Agreements. If you or Vivature, Inc. terminate the Agreements, or if Vivature, Inc. suspends your access to the KONGIQ Service, you agree that Vivature, Inc. shall have no liability or responsibility to you, and Vivature, Inc. will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your Vivature, Inc. account, please contact us through the Customer Service contact form which is available on our About Us page. This section will be enforced to the extent permissible by applicable law. You may terminate the Agreements at any time.

Sections 6, 7, 8, 10, 12, 13, 14, 15, 18, 17, 18, 19, 20, and 21 herein, as well as any other sections of the Agreements that, either explicitly or by their nature, must remain in effect even after termination of the Agreements, shall survive termination.

14. Warranty and disclaimer

WE ENDEAVOUR TO PROVIDE THE BEST SERVICE WE CAN, BUT YOU UNDERSTAND AND AGREE THAT THE KONGIQ SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE KONGIQ SERVICE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, VIVATURE, INC. AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER VIVATURE, INC. NOR ANY OWNER OF CONTENT WARRANTS THAT THE KONGIQ SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, VIVATURE, INC. MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, OR ANY OTHER PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY ON OR THROUGH THE KONGIQ SERVICE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. YOU UNDERSTAND AND AGREE THAT VIVATURE, INC. IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF THIRD-PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE KONGIQ SERVICE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM VIVATURE, INC. SHALL CREATE ANY WARRANTY ON BEHALF OF VIVATURE, INC. IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.

THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.

15. Limitation and time for filing

YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE KONGIQ SERVICE IS TO UNINSTALL ANY KONGIQ SOFTWARE AND TO STOP USING THE KONGIQ SERVICE. WHILE VIVATURE, INC. ACCEPTS NO RESPONSIBILITY FOR THIRD-PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD-PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO VIVATURE, INC., FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD-PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD-PARTY APPLICATIONS.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL VIVATURE, INC., ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE KONGIQ SERVICE, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER VIVATURE, INC. HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE KONGIQ SERVICE, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO VIVATURE, INC. DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.

Nothing in the Agreements removes or limits Vivature, Inc.’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CLAIM AGAINST VIVATURE, INC. MUST BE COMMENCED (BY FILING A DEMAND FOR ARBITRATION UNDER SECTION (24.2.1) OR FILING AN INDIVIDUAL ACTION UNDER SECTION (24.2.2) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.

16. Third-party rights

You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of the Agreements and have the right to enforce the Agreements directly against you. Other than as set out in this section, the Agreements are not intended to grant rights to anyone except you and KONGIQ, and in no event shall the Agreements create any third-party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of the Agreements are not subject to the consent of any other person.

If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This Agreement is between you and KONGIQ only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third-party relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the App infringe that third-party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the Service. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement. You hereby represent and warrant that (1) 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; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

17. Entire Agreement

Other than as stated in this section or as explicitly agreed upon in writing between you and Vivature, Inc., the Agreements constitute all the terms and conditions agreed upon between you and Vivature, Inc. and supersede any prior agreements in relation to the subject matter of these Agreements, whether written or oral.

Please note, however, that other aspects of your use of the KONGIQ Service may be governed by additional agreements. When you are presented with an offer for such aspects of your use, you will be presented with any related additional agreement, and you may have an opportunity to agree to additional terms. To the extent that there is any irreconcilable conflict between any additional terms and these Terms, the additional terms shall prevail.

18. Severability and waiver

Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.

Any failure by Vivature, Inc. or any third-party beneficiary to enforce the Agreements or any provision thereof shall not waive KONGIQ’s or the applicable third-party beneficiary’s right to do so.

19. Assignment

Vivature, Inc. may assign the Agreements or any part of them, and Vivature, Inc. may delegate any of its obligations under the Agreements. You may not assign the Agreements or any part of them, nor transfer or sub-license your rights under the Agreements, to any third-party.

20. Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify and hold Vivature, Inc. harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any User Content; (3) any activity in which you engage on or through the KONGIQ Service; and (4) your violation of any law or the rights of a third-party.

21. Choice of law, mandatory arbitration and venue

21.1 Governing Law / Jurisdiction

The Agreements (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the state of Texas, United States of America, without regard to choice- or conflicts-of-law principles.

Further, you and Vivature, Inc. agree to the jurisdiction of the state courts of Dallas County, Texas to resolve any dispute, claim, or controversy that relates to or arises in connection with the Agreements (and any non-contractual disputes/claims relating to or arising in connection with them) and is not subject to mandatory arbitration under Section 21.2.1.

Vivature, Inc. does not accept any codes of conduct as mandatory in connection with the services provided under this agreement.

21.2 Arbitration Agreement

This Arbitration Agreement applies only to users in the United States.

21.2.1 Dispute resolution and arbitration

You and Vivature, Inc. agree that any dispute, claim, or controversy between you and Vivature, Inc. arising in connection with or relating in any way to these Agreements or to your relationship with Vivature, Inc. as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual (not class) arbitration. You and Vivature, Inc. further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Arbitration Agreement or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreements.

21.2.2 Exceptions

Notwithstanding the clause above (21.2.1), you and Vivature, Inc. both agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Arbitration Agreement doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).

21.2.3 No Class or Representative Proceedings: Class Action Waiver

YOU AND VIVATURE, INC. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Vivature, Inc. agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

21.2.4 Arbitration rules

Either you or we may start arbitration proceedings. Any arbitration between you and Vivature, Inc. will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement. You and Vivature, Inc. agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Vivature, Inc. can also help put you in touch with the AAA.

Any arbitration hearings will take place in the county (or parish) of your billing address, provided that if the claim is for $25,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.

If you choose to file an arbitration proceeding and you are required to pay a filing fee, Vivature, Inc. will reimburse you for that filing fee, unless your claim is for greater than US $10,000, in which case you will be responsible for the filing fee. Vivature, Inc. will pay any other arbitration fees, including your share of arbitrator compensation, unless otherwise required by AAA rules or court order. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

21.2.5 Notice; Process

A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Vivature, Inc.’s address for Notice is: Vivature Inc., Attn: General Counsel, 5050 Spring Valley Road, Dallas, TX 75244, USA. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Vivature, Inc. may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Vivature, Inc. shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, and the arbitrator issues you an award that is greater than the value of Vivature, Inc.’s last written settlement offer, then Vivature, Inc. will instead pay you either the amount of the award or $1,000, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.

21.2.6 Enforceability

If this Arbitration Agreement is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 24.1 shall govern any claim in court arising out of or related to the Agreements.

21.3 UNRESOLVED COMPLAINTS

Vivature has further committed to refer unresolved Privacy Shield complaints to an independent dispute resolution provider located in the United States. If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, please contact our U.S.-based third party dispute resolution provider (free of charge) at https://feedback-form.truste.com/watchdog/request

22 Contact us

If you have any questions concerning the KONGIQ Service or the Agreements, please contact Vivature, Inc. Customer Service by visiting the About Us section of our website.

Thank you for reading our Terms. We hope you enjoy KONGIQ!

Contracting entity:

Vivature Inc.

5050 Spring Valley Road
Dallas, TX 75244

USA