ACCEPTANCE OF TERMS
2. This Agreement, which incorporates by reference other provisions applicable to use of skykiwi.com and Apps, including, but not limited to, supplemental terms and conditions set forth hereof ("Supplemental Terms") governing the use of certain specific material contained in skykiwi.com and Apps sets forth the terms and conditions that apply to use of skykiwi.com and Apps by User. By using Skykiwi (other than to read this Agreement for the first time), User agrees to comply with all of the terms and conditions hereof. User is responsible for all use of User's Account (under any screen name or password) and for ensuring that all use of User's Account complies fully with the provisions of this Agreement. User shall be responsible for protecting the confidentiality of User's password(s), if any.
3. Skykiwi shall have the right at any time to change or discontinue any aspect or feature of skykiwi.com and Apps including, but not limited to, content, hours of availability, and equipment needed for access or use.
4. Skykiwi shall have the right at any time to change or modify the terms and conditions applicable to User's use of skykiwi.com and Apps or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on skykiwi.com and Apps or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use of skykiwi.com and Apps by User after such notice shall be deemed to constitute acceptance by User of such changes, modifications or additions.
DESCRIPTION OF SERVICES
5. Through its Web property, Skykiwi provides User with access to a variety of resources, including download areas, communication forums and product information (collectively "Services"). The Services, including any updates, enhancements, new features, and/or the addition of any new Web properties, are subject to the TOU.
USER GENERATED CONTENT
Examples of common violations
- Promoting sexually explicit user-generated content, including implementing or permitting paid features that principally encourage the sharing of objectionable content.
- Apps with user generated content (UGC) that lack sufficient safeguards against threats, harassment, or bullying, particularly toward minors.
- Posts, comments, or photos within an app that are primarily intended to harass or single out another person for abuse, malicious attack, or ridicule.
- Apps that continually fail to address user complaints about objectionable content.
6. User shall use skykiwi.com and Apps for lawful purposes only. User shall not post or transmit through skykiwi.com and Apps any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that may constitute a criminal offense, give rise to civil liability or otherwise in breach of or bears the risk of breaching any law, or damage or have the risk of damage the reputation, operation, obligations of Skykiwi, whether knowingly or unknowingly to the offending user, or which, without Skykiwi's express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by a User that in Skykiwi's discretion restricts or inhibits any other User from using or enjoying skykiwi.com and Apps will not be permitted. User shall not use skykiwi.com and Apps to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users to become subscribers of other on-line information services competitive with Skykiwi.
7. User shall not upload, post or otherwise make available on skykiwi.com and Apps any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with User. User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of skykiwi.com and Apps, User automatically grants, or warrants that the owner of such material has expressly granted Skykiwi the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. User also permits any other User to access, view, store or reproduce the material for that User's personal use. User hereby grants Skykiwi the right to edit, copy, publish and distribute any material made available on skykiwi.com and Apps by User.
8. The foregoing provisions of clauses 6 and 7 are for the benefit of Skykiwi.
USE OF SERVICES
9. The Services may contain email services, bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, photo albums, file cabinets and/or other message or communication facilities designed to enable User to communicate with others (each a "Communication Service" and collectively "Communication Services"). User agrees to use the Communication Services only to post, send and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, User agrees that when using the Communication Services, User will not:
a. Use the Communication Services in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
b. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
c. Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.
d. Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation copyright or trademark laws (or by rights of privacy or publicity) unless User own or control the rights thereto or have received all necessary consent to do the same.
e. Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
f. Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another.
g. Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Services specifically allows such messages.
h. Download any file posted by another user of a Communication Service that User know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner.
i. Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
j. Restrict or inhibit any other user from using and enjoying the Communication Services.
k. Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
l. Harvest or otherwise collect information about others, including email addresses.
m. Breach or have the risk of breaching any applicable laws or regulations.
n. Create a false identity for the purpose of misleading others.
o. Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Services or other user or usage information or any portion thereof.
10. Skykiwi has no obligation to monitor the Communication Services. However, Skykiwi reserves the right to review materials posted to the Communication Services and to remove any materials in its sole discretion. Skykiwi reserves the right to terminate User’s access to any or all of the Communication Services at any time, without notice, for any reason whatsoever. Skykiwi reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Skykiwi’s sole discretion.
11. Materials uploaded to the Communication Services may be subject to posted limitations on usage, reproduction and/or dissemination; User is responsible for adhering to such limitations if User downloads the materials.
12. Skykiwi does not control, manage, facilitate, encourage, request or endorse the content, messages or information found in any Communication Services and, therefore, Skykiwi specifically disclaims any liability with regard to the Communication Services and any actions resulting from User’s participation in any Communication Services. Skykiwi assumes no determination or judgement right and/or obligations over the contents, message or information found in any Communication Services. Should any such User takes issues with the said contents, message or information, such User shall claim against the creator of the said contents, message or information directly, and the claiming User and the the alleged wrong doing User shall expressly indemnify Skykiwi from any such claim, proceeding and/or require Skykiwi to make any determination of any such dispute.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
13. If any of the Services requires User to open an account, User must complete the registration process by providing Skykiwi with current, complete and accurate information as prompted by the applicable registration form. User also will choose a password and a user name. User is entirely responsible for maintaining the confidentiality of User’s password and account. Furthermore, User is entirely responsible for any and all activities that occur under User’s account. User agrees to notify Skykiwi immediately of any unauthorized use of User’s account or any other breach of security. Skykiwi will not be liable for any loss that User may incur as a result of someone else using User’s password or account, either with or without User’s knowledge. However, User could be held liable for losses incurred by Skykiwi or another party due to someone else using User’s account or password. User may not use anyone else's account at any time, without the permission of the account holder.
LINKS TO THIRD PARTY SITES
14. The links to a third party site means link on Skykiwi that will let you leave Skykiwi's site. The linked sites are not under the control of Skykiwi and Skykiwi not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Skykiwi is not responsible for webcasting or any other form of transmission received from any linked site. Skykiwi is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Skykiwi of the site.
15. Skykiwi shall have the right, but not the obligation, to monitor the content of skykiwi.com and Apps, to determine compliance with this Agreement and any operating rules established by Skykiwi and to satisfy any law, regulation or government request. Skykiwi shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on skykiwi.com and Apps. Without limiting the foregoing, Skykiwi shall have the right to remove any material that Skykiwi, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
16. User agrees to defend, indemnify and hold harmless Skykiwi and their respective directors, employees and agents from and against all claims and expenses, including legal fees, arising out of the use of Skykiwi by User or User's Account.
17. Skykiwi shall have the right to immediately terminate User's Account in the event of any conduct by User which Skykiwi, in its sole discretion, considers to be unacceptable, or in the event of any breach by User of this Agreement.
18. This Agreement and any operating rules for skykiwi.com and Apps established by Skykiwi constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the New Zealand without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
19. Skykiwi’s logos are trademarks of Skykiwi, all rights reserved. All other trademarks appearing on skykiwi.com and Apps are the property of their respective owners.
20. The names of actual companies and products mentioned herein may be the trademarks of their respective owners. The example companies, organizations, products, domain names, email addresses, logos, people and events depicted herein are fictitious. No association with any real company, organization, product, domain name, email address, logo, person, or event is intended or should be inferred.
ANY RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED.