Last Updated: August 23, 2023
The Kulan Group, LLC(“we, us, our, ours, etc.”) is the owner and operator of www.kulan.app, the Kulan mobile application, and any other affiliatedwebsites and related mobile versions and all services provided thereon(“Kulan”). Our goal is to provide a safe, authentic, and law-abiding socialintroduction platform for our users. To assist in this effort, we require thatall users agree to certain terms governing their use of Kulan. These Terms ofUse constitute a legal contract that establishes the relationship between you,the user, (“you, your, yours, etc.”) and us as it relates to your access to anduse of Kulan, the matchmaking app for single Somalis that are searching for apartner to begin their lives with, in a community that shares your values.
By accessing or usingKulan, you accept and agree to our website policies, including these Terms ofUse, and you certify to us that (a) you are eighteen (18) years of age orolder, and are at least the age of majority in your jurisdiction, (b) you havethe legal capacity to enter into and agree to these Terms of Use, (c) you areusing Kulan freely, voluntarily, willingly, and for your own personal use, and(d) you will only provide accurate and complete information to us and promptlyupdate this information as necessary to maintain its accuracy and completeness.
We are the owner of alltext, images, graphics, photographs, audio, video, buttons, icons, animations,data, messages, software, content, information, or materials on Kulan(“Materials”). While we do not own the content shared on Kulan by you(“Content”) or our other users, such user-generated content is included withinthe definition of Kulan and is excluded from the definition of Materials.
We reserve the right torevise these Terms of Use at any time. You agree that we have this unilateralright, and that all modifications or changes are in force and enforceableimmediately upon posting. The updated version supersedes any prior versionsimmediately upon posting, and the prior version is of no continuing legaleffect unless the revised version specifically refers to the prior version andkeeps the prior version or portions thereof in effect. We agree that if wechange anything in these Terms of Use, we will change the “Last Updated” dateat the top of these Terms of Use. You agree to re-visit this page on a frequentbasis, and to use the “Refresh” or “Clear Cache” function on your browserwhen doing so. You agree to note the date above. If the “Last Updated” dateremains unchanged from the last time you reviewed these Terms of Use, then youmay presume that nothing in these Terms of Use has changed since the last timeyou visited. If the “Last Updated” date has changed, then you must review theupdated Terms of Use in their entirety. You must agree to any updated Terms ofUse or immediately cease use of Kulan. If you fail to review these Terms of Useas required to determine if any changes have been made, you assume allresponsibility for such omission, and you agree that such failure amounts toyour affirmative waiver of your right to review the updated terms. We are notresponsible for your neglect of your legal rights.
1. Accounts
A. Registration
All users may registerfor a single account on Kulan, provided you meet the requirements set forthherein and otherwise abide by these Terms of Use.
B. Accuracy
If you fail to providethe required information, if we reasonably believe that you have providedfalse, misleading, inaccurate, incomplete, not current, or otherwise incorrectinformation to us, if you fail to promptly update such information to maintainits accuracy and completeness, or if we or any of our authorized agents havereasonable grounds to suspect that a violation of this provision has occurred,we may reject, suspend, or terminate your account, as well as subject you tocriminal and civil liability. Acceptance of registration is subject to our solediscretion. While we may require you to provide additional information asnecessary to verify the accuracy of your identity and the information youprovide to us, you understand and agree that we do not sponsor or endorse anyuser, or any user-generated content.
C. No Account Sharing
You will not use,attempt to access, or ask for the login credentials for any third party’saccount at any time. You will not allow any third party to access or use your accountat any time, nor provide any third party with your login credentials. We willnot be liable for any loss that you may incur as a result of any third partythat uses your password or otherwise accesses your account, either with orwithout your knowledge. You will be liable for losses incurred by us or anythird party due to release of account credentials to unauthorized persons.
D. Termination by You
You may delete youraccount by clicking “Delete Account” in your account settings. You willnot assign, transfer, sell, or share your membership to Kulan. If you do, bothyou and any unauthorized user are jointly and severally liable forany fees that will be due.
E. Termination by Us
We may suspend or deleteyour account or any licenses herein at any time, for any reason, in our solediscretion. We have the right to terminate your membership at any time, and youwill be responsible for all charges to your account at the time oftermination. We are not responsible for preserving terminated accountinformation which may be permanently deleted in our discretion.
2. Grant of Rights
A. Materials
You understand that allwe are offering you is access to and use of Kulan as we provide them from timeto time. You need to provide your own access to the Internet, hardware, andsoftware, and you are solely responsible for any fees that you incur to accessor use Kulan. All users may access and use certain public areas of Kulan, freeof charge. We grant all users a limited, nonexclusive, revocable, andnontransferable personal license to access and use Kulan, the Materials, anduser-generated content, as limited by your purchase of certain paid features,for private, non-commercial purposes. We reserve the right to limit the amountof Materials viewed or features available to you. Your license to access anduse Kulan, the Materials, any user-generated content, and certain paid featuresis not a transfer of title. You will not copy or redistribute any Material oruser-generated content, and you will prevent others from unauthorized access,use of, or copying of the Materials and any user-generated content.
B. Content
We may permit you tosubmit Content to Kulan. Except for personally identifiable information coveredunder our Privacy Policy, we will consider Content non-confidential andnonproprietary. We will have no obligation regarding Content, and we do notguarantee any confidentiality for any Content. You are solely responsible forthe Content and the consequences of posting the Content to Kulan.
You retain all ownershiprights in the Content. However, you grant us a worldwide, perpetual,nonexclusive, royalty-free, sublicensable, and transferable license to use,reproduce, distribute, prepare derivative works of, display, and perform theContent for our business (and the business of our successors), including forpromoting and redistributing any part of Kulan (and derivative works of it) inany media formats and through any media channels for the purposes set forth inthese Terms of Use. This license shall include the right to copy and transferthe Content to any of our affiliate, related, or partner sites, and to post theContent on different pages of Kulan at our sole discretion. We may freely usethe Content for any purpose.
Further, you grant eachuser of Kulan a worldwide, nonexclusive, royalty-free license to access, use,view, display, and perform the Content through Kulan, as permitted throughKulan and under these Terms of Use, and as limited by that user’s purchase ofcertain paid features.
3. Acceptable Use Policy
A. Prohibited Uses for AllUsers
You agree that you willonly use Kulan for purposes expressly permitted and contemplated by these Termsof Use. You may not use Kulan for any other purposes without our express priorwritten consent. Without our express prior written authorization, you willnot:
· use Kulan for anypurpose other than as offered by us, including in any way that is prohibited bythese Terms of Use or that is violative of any applicable law, regulation, ortreaty of any applicable governmental body, including:
· fail to comply withorders, judgments, or mandates from courts of competent jurisdiction.
· access or use Kulan ifyou are, or are required to be, a registered sex offender in any jurisdiction.
· link to Kulan on anythird-party website in any way that is illegal, unfair, or damages or takesadvantage of our reputation, including any link which establishes or suggests aform of association, approval, or endorsement by us where none exists.
· post, upload, or shareContent that is harmful, inaccurate, threatening, abusive, vulgar, violent,indecent, harassing, hateful, menacing, scandalous, inflammatory, blasphemous,racially or ethnically offensive, likely to cause annoyance, intimidation,alarm, embarrassment, distress, discomfort, or inconvenience, otherwiseobjectionable or inappropriate.
· post, upload, or shareContent that contains hate speech, including any Content posted, uploaded, orshared with the intent (i) to vilify, humiliate, dehumanize, or incite hatredor fear against Somalis or Muslims, or (ii) to offend the cultural norms ofSomalia and the religious tenets of Islam.
· post, upload, or shareContent that depicts, advertises, promotes, encourages, facilitates, orsolicits (real, simulated, or implied) (i) sexual activity, (ii) nudity, nor(iii) any illegal behavior or behavior that may be considered obscene underapplicable law.
· post, upload, or shareany Content in public facing areas of Kulan (i) in culturally-inappropriateattire, or (ii) without appropriate attire.
· promote or advertise anyContent as depicting any person under eighteen (18) years old, regardless ofthe actual age of the person(s) depicted.
· post, upload, or shareContent with the intent to extort money or other benefit from a third party inexchange for removal of the Content.
· post, upload, or shareany employment ads or Content which violates anti-discrimination laws.
· post, upload, share, orcollect the telephone numbers, street addresses, last names, email addresses,URLs, geographic location, or any other personal information about users orthird parties without their consent, or, except as expressly authorized inthese Terms of Use.
· use slang, acronyms,abbreviations, emojis, GIFs, or other media to communicate any activity thatviolates these Terms of Use.
· engage in antisocial,disruptive, or destructive behavior, including “doxing,” “bombing,” “flaming,”“spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonlyunderstood and used on the Internet, or engage in any other behavior thatserves no purpose other than to harass, annoy, or offend users.
· access the accounts ofother users.
· engage in any fraudulentactivity, including impersonating any real or fictitious third party, falsely claiming affiliation with any third party, or misrepresenting thesource, identity, or contents of the Content.
· engage in platformmanipulation, including utilizing bots or other fraudulent means toartificially drive traffic to or inauthentically generate engagements with youraccount, the Content, or links to third party websites.
· circumvent, disable,damage, or otherwise interfere with the operations of Kulan, any user’senjoyment of Kulan, or our security-related features or features that prevent,limit, restrict, or otherwise enforce limitations on the access to, use of, orcopying of Kulan, by any means, including posting, linking to, uploading, orotherwise disseminating viruses, adware, spyware, malware, logic bombs, Trojanhorses, worms, harmful components, corrupted data, or other malicious code,file, or program designed to interrupt, destroy, limit, or monitor thefunctionality of any computer software or hardware or any telecommunicationsequipment.
· reverse engineer,decompile, disassemble, or otherwise discover the source code of Kulan or anypart of it, except and only if that activity is expressly permitted byapplicable law despite this limitation.
· access or use anyautomated process (such as a robot, spider, scraper, or similar) to access oruse Kulan in violation of our robot exclusion headers or to scrape all or asubstantial part of Kulan (other than in connection with bona fide searchengine indexing or as we may otherwise expressly permit).
· modify, adapt,translate, or create derivative works based on Kulan, except and only ifapplicable law expressly permits that activity despite this limitation.
· commercially exploit ormake available, mirror, or frame Kulan.
· take any action thatimposes or may impose (in our sole discretion) an unreasonable ordisproportionately large load on our technology infrastructure or otherwisemake excessive demands on it.
· attempt to do any of theacts described in this section or assist or permit any person in engaging inany of the acts described in this section.
Engaging in anyProhibited Use will be considered a breach of these Terms of Use and may resultin immediate suspension or termination of the user’s account and access toKulan or the platform without notice, in our sole discretion. We may pursue anylegal remedies or other appropriate actions against you if you engage in any ofthe above Prohibited Uses or otherwise violate these Terms of Use or anyinternational, foreign, or domestic laws, including civil, criminal, orinjunctive relief, and termination of your account.
B. Reporting User-GeneratedContent and User Activities
If you are aware of anyuser-generated content on Kulan or any user engaging in activities that violatethese Terms of Use, please send us a message via security@kulan.app and provide as much detail as possible, including adescription of the objectionable user-generated content or the location whereit may be found, the username of the individual engaging in suspiciousactivities, the date and time of identification, the reason we should removethe objectionable user-generated content or investigate the activities, and astatement certifying the accuracy of the information you provided to us.
C. Law Enforcement
We will fully cooperatewith law enforcement authorities or orders from courts of competentjurisdiction, requesting or directing us to disclose the identity or locationof any user in breach of these Terms of Use, in accordance with our privacypolicies, law enforcement policies, and applicable law or regulation. If wereceive a subpoena, discovery request, production order, search warrant, orcourt order in response to your activities which causes us to incur legalexpenses, costs, or fees for compliance, you agree to reimburse us for any suchlegal expenses, costs, and fees upon our request.
4. Billing
A. Purchases
You may purchase accessto certain upgraded features using the in-app purchase method of your mobiledevice. We offer you the opportunity to purchase different upgrades andfeatures for differing prices. The prices and terms of upgrades and featuresare displayed on Kulan, and you may only purchase upgrades and features for thecurrently displayed price. We reserve the right to charge additional fees foraccess to or use of Kulan or any of our other features, and to change our feestructure at our discretion. All previous offers or discounts are unavailableonce removed from Kulan.
We bill forsubscriptions on an automatic recurring basis. If you fail to renew yoursubscription and continue to access certain features on Kulan, we may chargeyou for those features on an a-la-carte basis at our prevailing rates. Theprice for such subscriptions and the paid features related to suchsubscriptions is prominently displayed on Kulan and may be changed by us fromtime to time. We reserve the right to change the price and features associatedwith such subscriptions at any time, without notice to you, by changing theinformation prominently displayed on Kulan.
You agree to pay allfees or account charges related to any fees, taxes, charges, purchases,subscriptions, tips, or upgraded features associated with your account,immediately when due in accordance with our stated billing policy, or that ofour third-party billing agent. You acknowledge that the charge on your bankingstatement may display our company name, one of our brand names, or ourthird-party billing agent’s name. You understand and agree that you areresponsible for all fees or penalties that are associated with your account.Your account will be deemed past due if it is not paid in full by the due date.Your card issuer agreement may contain additional terms with respect to yourrights and liabilities as a card holder. You agree to pay all amounts dueimmediately upon cancellation or termination of your account.
B. In-App PaymentProcessing
We utilize the in-apppayment processors and gateways provided by your mobile device, and we reservethe right to contract with additional third-party payment processors andgateways in our sole discretion to process all payments associated with Kulan.Your mobile device provider and other third parties may impose additional termsand conditions governing payment processing. You are responsible for abiding bysuch terms. We further disclaim any liability associated with your violation ofsuch terms.
C. Changes to Your BillingInformation
You must promptly informour third-party billing agents of all changes, including changes in youraddress, debit or credit card, and other banking information used in connectionwith billing through Kulan. You are responsible for any debit or credit cardcharge backs, dishonored checks, and any related fees that we incur withrespect to your account, along with any additional fees or penalties imposed byour third-party billing agents.
D. Chargebacks
If you make a purchase onKulan that results in a chargeback, we may terminate your account. You agree tocontact us to seek a resolution of any issue before initiating achargeback.
E. Changes to Our BillingMethods
We reserve the right tomake changes at any time to our fees and billing methods, including theaddition of administrative or supplemental charges for any feature, with orwithout prior notice to you.
F. Refunds
You understand and agreethat it is our standard policy that all purchases are final and nonrefundable.We reserve the right to address all refund requests in our sole discretion. Inno instance will a refund be provided where the user initiates a chargeback.
For refunds related tosubscriptions:
· If you purchase asubscription, you may cancel the subscription at any time. If you cancel asubscription, you will not be issued a refund, and you will continue to haveaccess to the features related to that subscription until the end of thecurrent billing period.
· If you block anotheruser, you will not receive further messages or notifications from that user orbe able to access their profile.
· If you are blocked by auser you will not be able to communicate with that user or access theirprofile.
G. Billing Errors
If you believe that youhave been erroneously billed for activity associated with your account, pleasenotify our third-party billing agents immediately of such error. If you do notdo so within thirty (30) days after such billing error first appears on anyaccount statement, the bill or fee in question will be deemed acceptable by youfor all purposes, including resolution of inquiries made by or on behalf ofyour banking institution. You release us from all liabilities and claims ofloss resulting from any error or discrepancy that is not reported within thirty(30) days of the bill being rendered to you. These terms shall supplement andbe in addition to any terms required by third party billing entities we engageto provide billing services. You are responsible for review and compliance withsuch entity’s terms in addition to those contained in these Terms of Use.
H. Fraudulent Use of CreditCards
We take credit cardfraud very seriously. Discovery that you have used a stolen or fraudulentcredit card will result in the notification of the appropriate law enforcementagencies and termination of your account.
5. Dispute Resolution andDamages
A. Governing Law and Venue
These Terms of Use andall matters arising out of, or otherwise relating to, these Terms of Use shallbe governed by the laws of the state of Florida, and United States federal law,excluding any conflict of law provisions. The sum of this paragraph is that alldisputes must be, without exception, resolved in Orange County, Florida. AllParties to these Terms of Use agree that all legal actions or proceedingsarising in connection with these Terms of Use or any services or business interactionsbetween the Parties that may be subject to these Terms of Use shall be broughtexclusively in Orange County, Florida. The Parties agree to exclusive jurisdictionand venue in, and only in, Orange County, Florida. The Parties additionallyagree that this choice of venue and forum is mandatory and not permissive innature, thereby precluding any possibility of litigation between the Partieswith respect to, or arising out of, these Terms of Use in a jurisdiction otherthan that specified in this paragraph. All Parties hereby waive any right toassert the doctrine of forum non-conveniens or similar doctrineschallenging venue or jurisdiction, or to object to venue with respect to anyproceeding brought in accordance with this paragraph or with respect to anydispute under these Terms of Use whatsoever. All Parties stipulatethat the courts located in Orange County, Florida shall have personaljurisdiction over them for resolution of any litigation permitted by theseTerms of Use. You agree to accept service of process by registered or certifiedmail, Federal Express, or Priority Mail, with proof of delivery or returnreceipt requested, sent to your last known address for any legal action arisingfrom these Terms of Use. Any final judgment rendered against you or us in anyaction or proceeding shall be conclusive as to the subject matter and may beenforced in the courts located in Orange County, Florida or other jurisdictionsin any manner provided by law if such enforcement becomes necessary.
B. Waivers
You hereby waive anyright or ability to initiate any class action or collective proceeding alongwith any right to trial by jury.
C. Rights to InjunctiveRelief
You acknowledge thatremedies at law may be inadequate to provide us with full compensation in theevent you breach these Terms of Use, and that we shall therefore be entitled toseek injunctive relief in the event of any such breach, in addition to seekingall other remedies available at law or in equity.
D. Additional Fees
If we are required toenlist the assistance of an attorney, investigator, collections agent, or otherperson to collect any damages or any other amount of money from you, or if weare required to seek the assistance of an attorney to pursue injunctive reliefagainst you, then you additionally agree that you will reimburse us for allfees incurred in order to collect these damages or in order to seek injunctiverelief from you. You understand that even a nominal amount of damages mayrequire the expenditure of extensive legal fees, travel expenses, costs, andother amounts that may dwarf the damages themselves. You agree that you willpay these fees and costs.
6. Disclaimers
A. We Disclaim AllWarranties
We provide access to anduse of Kulan “as is” and “with all faults.” We make no warranty that Kulan willmeet your needs or requirements. We disclaim all warranties — express,statutory, or implied — including warranties of merchantability, fitness for aparticular purpose, workmanlike effort, quality, suitability, truthfulness,usefulness, performance, accuracy, completeness, reliability, security, title,exclusivity, quiet enjoyment, non-infringement, and warranties that your accessto or use of Kulan will be uninterrupted, timely, secure, error-free, or thatloss of Content will not occur, to the greatest extent provided by applicablelaw. We may change any of the information found on Kulan at any time or removeany or all Materials or other user-generated content thereon. We make nocommitment to update the Materials. We make no warranty regarding any goods orservices purchased or obtained through Kulan or any transaction entered intothrough Kulan. There are no warranties of any kind that extend beyond the faceof these Terms of Use or that arise because of course of performance, course ofdealing, or usage of trade.
B. Use at Your Own Risk
You expressly agree thataccess to and use of Kulan is at your own and sole risk. You understand that wecannot and do not guarantee or warrant that Kulan will be free of viruses,malware, worms, Trojan horses, or other code that may manifest contaminating ordestructive properties. We do not assume any responsibility or risk for youraccess to or use of the Internet, generally, or Kulan, specifically. Youunderstand and agree that any Materials or user-generated content downloaded orotherwise obtained through Kulan is done at your own discretion and risk, andthat you will be solely responsible for any damage to your computer system orloss of data that results from your activity.
C. Parental Controls Notice
You acknowledge yourresponsibility to prevent minors under your care from accessing harmful,inappropriate, or adult content. You agree not to allow minors to view Kulan,and you agree to take responsible measures to prevent them from doing so.Numerous commercial online safety filters are available which may help userslimit minors’ access to harmful, inappropriate, or adult content. You arehereby informed that you can research such services by typing the words“parental controls” or similar terms, into an Internet search engine. Werecommend that you conduct appropriate due diligence before purchasing orinstalling any online filter. You agree to take steps to prevent minorsfrom viewing Kulan if your computer or mobile device can be accessed by aminor. Finally, you agree that if you are a parent or guardian of a minorchild, it is your responsibility, not ours, to keep Kulan from being displayedor accessed by your children or wards.
D. Registered Sex Offendersand Safety Tips
By accessing Kulan, you representand warrant that you have not been convicted of a felony or any criminal sexualoffense, and you are not required to register as a sex offender with anygovernment entity. While we prohibit access to and use of Kulan byregistered sex offenders, we do not conduct routine criminal background checkson users. You are solely responsible for your interactions with other users. Wedo not undertake any obligation to monitor user activity, screen or interviewusers, investigate the background of users, or attempt to verify the accuracyof statements made by third parties regarding any user’s background. Weexpressly disclaim any warranty about the conduct of users or those acting ontheir behalf. Remember, online profiles can be falsified. We recommend that youuse common sense and take reasonable precautions in all communications, orinteractions with other users. Consider the following online safety tips:
· Anyone who can commitidentity theft can also falsify an online profile.
· There is no substitute foracting with caution when communicating with any stranger who wants to interactwith you.
· Never include your lastname, email address, home address, phone number, place of work, or any otheridentifying information in initial communications with other users. Stopcommunications with anyone who pressures you for personal or financialinformation or tries in any way to trick you into revealing it.
· If you choose to have aface-to-face meeting with another user who you met on Kulan, tell a familymember or friend where you will be meeting and when you will return. You shouldnot agree to be picked up at your home. Always provide your own transportationand meet in a public place with many people around.
E. Fraud and Scam Warning
While we take efforts toprevent our services from being used for any fraudulent purposes, wespecifically and emphatically warn members never to send money to anyone thatthey interact with on Kulan other than through authorized means. We have no wayof determining the validity of any communication that you may receive fromother users, and we cannot discern the validity of the person or intentionsbehind such communication. It is a violation of our policy to solicit moneyfrom or to send money to any other user other than through authorized means.You expressly understand and agree that if any other user that you are incommunication with on Kulan requests money from you for travel, medicalassistance, subsistence or for any other reason, it is likely a scam or afraudulent scheme, and you are at a very high risk of being defrauded. Youagree to report such request along with the username of the requesting user tous immediately. While we are not obligated to investigate any such report, wemay do so in our sole discretion.
F. No Responsibility forUser-Generated Content
We expressly disclaimall liability for any user-generated content. You understand that much of Kulanis populated with user-generated content, and that we do not endorse (expresslyor implicitly) the opinions expressed in any user-generated content. Thus, youunderstand that you may be exposed to user-generated content from a variety ofsources, and that we are not responsible for the accuracy, usefulness, safety,or intellectual property rights of user-generated content. You furtherunderstand that you may be exposed to user-generated content that isinaccurate, offensive, illegal, indecent, obscene, or objectionable, and youwaive any rights or remedies you have or may have against us for this exposure.We are under no obligation to prescreen, review, or preemptively monitoruser-generated content. However, we reserve the right to demote or terminateany user and to demote, remove, or refuse to publish your Content, at any time,for any reason, with or without prior notice. If we choose to monitor Kulan atany time, we assume (1) no responsibility for user-generated content, (2) noobligation to modify or remove any inappropriate user-generated content, and(3) no responsibility for the conduct of the user submitting that content.
G. Third-Party Links
Kulan may contain linksto websites or resources owned and operated by our users or third parties. Youunderstand and agree that we have no control over, are not responsible for, anddo not screen nor warrant, endorse, guarantee, or assume responsibility for thegoods or services provided by our users or on third-party links. We will not bea party to or be in any way responsible for monitoring any transaction betweenyou and other providers of products or services. As with the purchase of aproduct or service through any medium or in any environment, you should useyour best judgment and exercise caution where appropriate. You agree to hold usharmless from all damages and liability that may result from use of third-partylinks that appear on Kulan and any advertising, services, goods, products, orother materials available on third-party links. We are not responsible for anyuse of confidential or private information by sellers or third parties. Youagree that your use of any third-party link or the goods or services providedthereon is governed by the policies of those third parties, not by these Termsof Use or our other policies. We reserve the right to demote or remove any linkat any time.
H. Violations of Law
Access to and use ofKulan in violation of any law is strictly prohibited. If we determine that youhave provided or intend to purchase or provide any services in violation of anylaw, your ability to access and use Kulan will be terminated immediately. We dohereby disclaim any liability for damages that may arise from you or any userproviding any services that violates any law. You do hereby agree to defend,indemnify, and hold us harmless from any liability that may arise for us shouldyou violate any law. You also agree to defend and indemnify us shouldany third party be harmed by your illegal actions or should we be obligated todefend any such claims by any party.
7. Indemnification
You agree to defend,indemnify, and hold harmless us and our officers, directors, shareholders,employees, independent contractors, telecommunication providers, attorneys, andagents, from and against all claims, actions, loss, liabilities, expenses, costs,or demands, including without limitation legal and accounting fees, for alldamages directly, indirectly, or consequentially resulting or allegedlyresulting from your actions, or the actions of another person under yourauthority, including without limitation to governmental agencies, use, misuse,or inability to use Kulan, or any breach of these Terms of Use by you oranother person under your authority. We shall promptly notify you by electronicmail of any such claim or suit, and we may cooperate fully (at your expense) inthe defense of such claim or suit. We reserve the right to participate in thedefense of such claim or suit at our own expense, and choose our own legalcounsel; however, we are not obligated to do so.
8. Limitation of Liability
You acknowledge that wewill not be liable to you for user-generated content or the offensive orillegal conduct of any person. You understand that the risk of harm or damagefrom this rests entirely with you, and you expressly release us from anyliability arising out of user-generated content or the conduct of any person.You discharge, acquit, and otherwise release us, our parent company, agents,employees, officers, directors, shareholders, attorneys, and affiliates, fromall allegations, counts, charges, debts, causes of action, and claims relatingin any way to the use of, or activities relating to the use of Kulan includingclaims relating to the following:
Negligence, gross negligence, reckless conduct, alienation ofaffections (to the extent recognized in any jurisdiction), intentionalinfliction of emotional distress, intentional interference with contract oradvantageous business relationship, defamation, privacy, publicity,intellectual property infringement, misrepresentation, infectious disease, nonconsensualrecording or dissemination of intimate depictions, violation of prostitution orsex trafficking laws, any financial loss not due to our fault, missed meetings,unmet expectations, false identities, fraudulent acts by others, invasion ofprivacy, release of personal information, failed transactions, purchases orfunctionality of Kulan, unavailability of Kulan, its functions and any othertechnical failure that may result in inaccessibility of Kulan, or any claimbased on vicarious liability for torts committed by individuals met on orthrough Kulan, including fraud, theft or misuse of personal information,assault, battery, stalking, harassment, cyber-bullying, rape, theft, cheating,perjury, manslaughter, or murder.
The above list isintended to be illustrative only, and not exhaustive of the types or categoriesof claims released by you. This release is intended by the parties to beinterpreted broadly in our favor, and thus any ambiguity shall be interpretedin a manner providing release of the broadest claims. This release is intendedto be a full release of claims, and the parties acknowledge the legally bindingnature of this provision, and the nature of the rights given up in connectiontherewith.
We expressly disclaimany liability or responsibility to you for any of the following:
· Any loss or damage ofany kind incurred because of the Materials or user-generated content, includingerrors, mistakes, or inaccuracies thereof or any Materials or user-generatedcontent that are infringing, obscene, indecent, threatening, offensive,defamatory, invasive of privacy, or illegal.
· Personal injury orproperty damage of any nature resulting from your access to and use of Kulan.
· Any third party’sunauthorized access to or alterations of your account, transmissions, data, orContent.
· Any interruption orcessation of transmission to or from Kulan and any delays or failures you mayexperience in initiating, conducting, or completing any transmissions to ortransactions through Kulan.
· Any bugs, viruses,malware, Trojan horses, or the like that may be transmitted to or through Kulanby any third party.
· Any incompatibilitybetween Kulan and your other services, hardware, or software.
· Any claims arising fromidentification of you based on your Content, regardless of whether you utilizeany of our tools to mark certain Content private or block, restrict, orotherwise limit access to your Content in certain geographic locations.
9. Intellectual Property
A. Trademarks
Kulan is our brand nameand trademark. We aggressively defend our intellectual propertyrights. Other manufacturers’ product and service names referenced hereinmay be trademarks and service marks of their respective companies and are theexclusive property of such respective owners, and may not be used publiclywithout the express written consent of the owners or holders of such trademarksand service marks. All of the marks, logos, domains, and trademarks thatyou find on Kulan may not be used publicly except with express writtenpermission from us, and may not be used in any manner that is likely to causeconfusion among consumers, or in any manner that disparages or discredits us.
B. Copyrights
The Materials are ourproprietary information and valuable intellectual property. We retain allright, title, and interest in the Materials. You retail all right, title, andinterest in the Content, subject to the licenses herein. Kulan, the Materials,the Content, and any other user-generated content are protected by copyrightlaw. The Materials and any user-generated content may not be copied,downloaded, distributed, republished, modified, uploaded, posted, ortransmitted in any way without our prior written consent. You may not remove oralter, or cause to be removed or altered, any copyright, trademark, trade name,service mark, or any other proprietary notice or legend appearing on any of theMaterials or user-generated content. Modification or use of the Materialsor user-generated content except as expressly provided in these Terms of Useviolates our intellectual property rights.
C. Notification ofCopyright Infringement
We respect theintellectual property rights of all parties and comply with the DigitalMillennium Copyright Act (“DMCA”). We do not permit copyright infringingactivities or infringement of other intellectual property rights on Kulan, andwe will remove all user-generated content if properly notified that theuser-generated content infringes on a third party’s copyrights. We have adopteda policy regarding termination of repeat copyright infringers in compliancewith the DMCA, and we reserve the right to terminate a user’s access to Kulan,in accordance with our DMCA Policy or Repeat Infringer Policy. Copies of ourRepeat Infringer Policy are available to users upon request. Informationregarding submission of a notice of infringement under our [Link: DMCA Policy].
10. Additional Terms forMobile Users
A. Apple Users
If you download ourApple mobile application (“Apple App”), the following apply to you:
· Both parties acknowledgethat these Terms of Use are between you and us only, and not with Apple, andwe, not Apple, are solely responsible for Kulan and the Materials.
· We grant you only alimited, non-transferable license to use the Apple App on any Apple productsthat you own or control, as permitted by the Apple’s Terms of Use, except thatthe Apple App may be accessed and used by other accounts associated with thepurchaser via Family Sharing or volume purchasing.
· We are solelyresponsible for providing any maintenance and support services with respect tothe Apple App, as specified in these Terms of Use or as required underapplicable law. Both parties acknowledge that Apple has no obligationwhatsoever to furnish any maintenance and support services with respect to theApple App.
· We are solelyresponsible for any product warranties, whether express or implied by law, tothe extent not effectively disclaimed. In the event of any failure of the AppleApp to conform to any applicable warranty, you may notify Apple, and Apple willrefund the purchase price for the Apple App to you. To the maximum extentpermitted by applicable law, Apple will have no other warranty obligationwhatsoever with respect to the Apple App, and any other claims, losses,liabilities, damages, costs or expenses attributable to any failure to conformto any warranty will be our sole responsibility.
· Both parties acknowledgethat we, not Apple, are responsible for addressing any claims you or any thirdparty bring relating to the Apple App or your possession and/or use thereof,including, but not limited to: (i) product liability claims; (ii) any claimthat the Apple App fails to conform to any applicable legal or regulatoryrequirement; and (iii) claims arising under consumer protection, privacy, orsimilar legislation, including in connection with the Apple App’s use of theHealthKit and HomeKit frameworks. These Terms of Use do not limit our liabilityto you beyond what is permitted by applicable law.
· Both parties acknowledgethat, in the event of any third-party claim that the Apple App or yourpossession and/or use thereof infringes that third party’s intellectualproperty rights, we, not Apple, will be solely responsible for theinvestigation, defense, settlement and discharge of any such intellectualproperty infringement claim.
· You represent andwarrant that (i) 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 (ii) you are not listed on any U.S.Government list of prohibited or restricted parties.
· You may send questions,complaints, and claims related to the App to:
The Kulan Group, LLC
445 Minnesota Street
Suite 1500
St. Paul, MN 55101
· You must comply withapplicable third-party terms of agreement when using the Apple App.
· Both parties acknowledgeand agree that Apple, and Apple’s subsidiaries, are third party beneficiariesof these Terms of Use, and that, upon your acceptance of these Terms of Use,Apple will have the right (and will be deemed to have accepted the right) toenforce these Terms of Use against you as a third-party beneficiary thereof.
B. Google Users
If you access or useKulan through the Google Play Store, you agree to the following additionalterms of use required by Google: https://play.google.com/intl/en_us/about/play-terms.html.
11. General
A. Entire Agreement
These Terms of Use andany other legal notice or agreement published by us on Kulan, forms the entireagreement between you and us concerning your use of Kulan. It supersedes allprior terms, understandings, or agreements between you and us regarding use ofKulan. A printed version of these Terms of Use and of any notice given inelectronic form will be admissible in any proceedings based on or relating tothese terms. Such version of these Terms of Use shall be utilized to the sameevidentiary extent, and subject to the same conditions as other businessdocuments and records originally generated and maintained in printed form.
B. Policies of Our ServiceProviders
You understand and agreethat we may use certain third-party service providers to provide you withaccess to and use of Kulan. You understand and agree that you must agree to andabide by any user terms, privacy policy, or other policy that such third partyrequires you to agree to in order to use their services. In the event of aconflict between those policies and our policies, the terms of our policiesshall govern.
C. Assignment andDelegation
We may assign any rightsor delegate any performance under these Terms of Use without notice to you. Youwill not assign, delegate, or sublicense any of your rights or duties withoutour advanced written consent. Any attempted assignment or delegation inviolation of this provision will be void.
D. Severability
If any provision ofthese Terms of Use is determined to be invalid, illegal, or unenforceable, theremaining provisions shall continue in full force, if the essential terms foreach party remain valid, binding, and enforceable.
E. CumulativeRemedies
All rights and remediesprovided in these Terms of Use are cumulative and not exclusive, and the assertionby a party of any right or remedy will not preclude the assertion by the partyof any other rights or the seeking of any other remedies available at law, inequity, by statute, in any other agreement between the parties, or otherwise.
F. Successors andAssigns
These Terms of Use inureto the benefit of, and are binding on, the parties and their respectivesuccessors and assigns. This section does not address, directly or indirectly,whether a party may assign its rights or delegate its performance under theseTerms of Use.
G. Force Majeure
We are not responsiblefor any failure to perform because of unforeseen circumstances or causes beyondour reasonable control, including: Acts of God, such as fire, flood,earthquakes, hurricanes, tropical storms, or other natural disasters;epidemics; pandemics; war, riot, arson, embargoes, acts of civil or militaryauthority, or terrorism; fiber cuts; strikes, or shortages in transportation,facilities, fuel, energy, labor, or materials; failure of thetelecommunications or information services infrastructure; hacking, spam, databreach, malware, or any failure of a computer, server, network, or software forso long as the event continues to delay our performance; and unlawful acts ofour employees, agents, or contractors.
H. Notices
Any notice required tobe given by us under these Terms of Use may be provided by email to afunctioning email address of the party to be noticed, by a general posting onKulan, or by personal delivery via commercial carrier. Notices by customers tous shall be given by contacting us at security@kulan.appunless otherwise specified in these Terms of Use. Either party may change theaddress to which notice is to be sent by written notice to the other partypursuant to this provision of these Terms of Use. Notices shall be deemedeffective upon delivery. Notices delivered by overnight carrier shall be deemeddelivered on the business day following mailing. Notices delivered by anyother method shall be deemed given upon receipt. Either party may, by givingthe other party appropriate written notice, change the designated address,email address, or recipient for any notice hereunder. Any correctly addressednotice that is refused, unclaimed, or undeliverable, because of an act oromission of the party to be notified shall be deemed effective as of the firstdate that said notice was refused or deemed undeliverable by the postalauthorities, messenger, email server, or overnight delivery service.
I. Communications are NotPrivate
We do not provide anyfacility for sending or receiving private or confidential electroniccommunications. All messages transmitted to us shall be deemed to be readilyaccessible to the general public. Notice is hereby given that all messagesentered into Kulan may be read by us and our moderators and other agents,regardless of whether we are intended recipients of such messages.
J. Authorization andPermission to Send Emails to You
You authorize us toemail you notices, advertisements, and other communications, including emails,advertisements, and notices. You understand and agree that such communicationsmay contain content and language about personal relationships which may not besuitable for minors, and that our services are not intended for minors. Thisauthorization will continue until you request us to remove you from our emaillist. You understand and agree that even unsolicited email correspondence fromus, or our affiliates, is not spam as that term is defined under the law.
K. Consideration
We allow you to accessand use Kulan, as limited by purchase of certain paid features, inconsideration for your acquiescence to all the provisions in these Terms ofUse. You agree that such consideration is both adequate and received upon yourviewing or downloading any portion of Kulan.
L. Electronic Signatures
You agree to bebound by any affirmation, assent, or agreement you transmit through Kulan. Youagree that when in the future you click on an “I agree,” “I consent,” or othersimilarly worded button, check box, or entry field with your mouse, keystroke,or other computer device, your agreement or consent will be legally binding andenforceable and the legal equivalent of your handwritten signature.
M. English Language
We have written theseTerms of Use and our associated website policies in the English language. Youare representing your understanding and assent to the English language versionof these Terms of Use as they are published. We are not liable to you or anythird party for any costs or expenses incurred in translating these Terms ofUse. In the event that you choose to translate these Terms of Use, you do so atyour own risk, as only the English language version is binding.
N. Export Control
You understand andacknowledge that the software elements of Kulan may be subject to regulation bygovernmental agencies which prohibit export or diversion of software and othergoods to certain countries and third parties. Diversion of such elements contraryto U.S. or international law is prohibited. You will not assist or participatein any such diversion or other violation of applicable laws and regulations.You warrant that you will not license or otherwise permit anyone not approvedto receive controlled commodities under applicable laws and regulations andthat you will abide by such laws and regulations. You agree that none of theelements are being or will be acquired for, shipped, transferred, orre-exported, directly or indirectly, to proscribed or embargoed countries ortheir nationals or be used for proscribed activities.
O. No Agency Relationship
Nothing in these Termsof Use shall be deemed to constitute, create, imply, give effect to, orotherwise recognize a partnership, employment, joint venture, or formalbusiness entity of any kind; and the rights and obligations of the partiesshall be limited to those expressly set forth herein.
P. Usages
In these Terms of Use,unless otherwise stated or the context otherwise requires, the following usageswill apply:
· References to a statutewill refer to the statute and any successor statute, and to all regulationspromulgated under or implementing the statute or successor, as in effect at therelevant time.
· In computing periodsfrom a specified date to a later specified date, the words “from” and“commencing on” (and the like) mean “from and including,” and the words “to,”“until,” and “ending on” (and the like) mean “to but excluding.”
· References to a governmentalor quasi-governmental agency, authority, or instrumentality will also refer toa regulatory body that succeeds to the functions of the agency, authority, orinstrumentality.
· “A or B” means “A or Bor both.” “A, B, or C” means “one or more of A, B, and C.” The sameconstruction applies to longer strings.
· “Including” means“including, but not limited to.”
Q. No Waiver
No waiver or action madeby us shall be deemed a waiver of any subsequent default of the same provisionof these Terms of Use. If any term, clause or provision hereof is held invalidor unenforceable by a court of competent jurisdiction, such invalidity shallnot affect the validity or operation of any other term, clause or provision andsuch invalid term, clause or provision shall be deemed to be severed from theseTerms of Use.
R. Headings
All headings are solelyfor the convenience of reference and shall not affect the meaning, constructionor effect of these Terms of Use.
S. OtherJurisdictions/Foreign Law
We make norepresentation that Kulan is appropriate or available for use in all locations.You may not access or use Kulan from territories where their contents may beillegal or is otherwise prohibited. Those who choose to access and use Kulanfrom such locations do so on their own initiative and are solely responsiblefor determining compliance with all applicable local laws. Nothing contained inthese Terms of Use shall be interpreted as an admission that that we aresubject to the laws of any nation besides the United States.
T. Service Not Available inSome Areas
You are subject to thelaws of the state, province, city, country, or other legal entity in which youreside or from which you access and use Kulan. Kulan IS VOID WHERE PROHIBITEDOR RESTRICTED BY LAW. If you open an account or use Kulan while located in aprohibited jurisdiction, you will be in violation of the law of suchjurisdiction and these Terms of Use, and subject to having your accountsuspended or terminated without any notice to you. You hereby agree that wecannot be held liable if laws applicable to you restrict or prohibit yourparticipation. We make no representations or warranties, implicit or explicit,as to your legal right to participate in any Service offered on Kulan, nor shallany person affiliated, or claiming affiliation, with us have authority to makeany such representations or warranties. We reserve the right to restrict accessto and use of Kulan in any jurisdiction.
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© Walters Law Group (2023). All rights reserved.