Updated May 3, 2016
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. DESCRIPTION AND USE OF OUR SITE
We provide Visitors and Registered Users with access to the Site as described below.
Visitors. Visitors, as the term implies, are people who do not register with us, but want to explore the Site. No login is required for Visitors. Visitors can: (i) view all content and access all publicly-available features and functionality on the Site; (ii) subscribe to Kinnek communications, alerts, and other notifications; and (iii) contact us.
Registered Users. Registered Users can do all the things that Visitors can do, and: (i) access non-public features and functionality available only to Registered Users; (ii) create, access, manage, and update their own personal accounts on the Site; (iii) post comments, reviews, and other content on the Site and/or interact with other Registered Users of the Site (all content and information provided in connection with the foregoing is collectively referred to herein as “Registered User Content”; and (iv) purchase or sell third-party products through the Site (“Products”). A Registered User may be either a “Purchaser” or a “Supplier.”
A “Purchaser” is a Registered User who chooses to create an account through which the Registered User may purchase Products from Suppliers.
A “Supplier” is a Registered User who chooses to create an account through which the Registered User may offer or sell Products to Purchasers.
Purchasers may submit requests for quotes (“RFQ’s”) for Products that they are interested in purchasing.
Suppliers may respond to RFQ’s with quotes detailing the applicable Product price, description, and other terms or policies relevant to the purchase (the “Quote”).
If a Purchaser accepts a Quote, the Purchaser and Supplier may mutually agree to execute the purchase via our “Transaction Engine,” in which case the Purchaser and the applicable Supplier are bound by the Quote and agree to complete the transaction. If the Purchaser and Supplier execute a purchase using the Transaction Engine, then, in addition to the terms set forth herein, (i) Supplier agrees to be bound by the Additional Supplier Terms, which can be found here and (ii) Purchaser agrees to be bound by the Additional Purchaser Terms, which can be found here.
2. RESTRICTIONS ON USE
By accessing and/or using the Site or the Services, you agree to comply with the following restrictions on use:
- You will comply with all applicable laws in your use of the Site and will not use the Site for any unlawful or otherwise fraudulent purpose;
- You will not upload, post, e-mail, transmit, or otherwise make available any Registered User Content that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- constitutes promotion or advertising of any third-party website, product or service; or
- is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity; or
- discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
- You will not “stalk,” threaten, or otherwise harass another person;
- You will not access or use the Site to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not interfere with or attempt to interrupt the proper operation of the Site through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Site through hacking, password or data mining, or any other means;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Site;
- You will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Site for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
- You will let us know about inappropriate Registered User Content of which you become aware.
We have the right, but not the obligation, to review and reject or remove content that, in our sole discretion, does not adhere to these Community Guidelines. We also reserve the right, in our sole and absolute discretion, to deny you access to the Site, or to any portion of the Site, without notice.
3. SIGN-IN NAME; PASSWORD; UNIQUE IDENTIFIERS
If you wish to become a Registered User, you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered or payments made through the Site using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. Kinnek will not be liable for any loss or damage caused by any unauthorized use of your account.
4. INTELLECTUAL PROPERTY
The Site contains material, such as software, text, graphics, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of Kinnek (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Site automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Kinnek (the “Kinnek Trademarks”) used and displayed on the Site are registered and unregistered trademarks or service marks of Kinnek. Other company, product, and service names located on the Site may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Kinnek Trademarks, the “Trademarks”). Nothing on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Kinnek Trademarks inures to our benefit.
Elements of the Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
5. REGISTERED USER CONTENT
As noted above, the Site provides Registered Users the ability to post and upload Registered User Content. You expressly acknowledge and agree that once you submit your Registered User Content, it will be accessible by others, and that there is no confidentiality or privacy with respect to such Registered User Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT KINNEK, ARE ENTIRELY RESPONSIBLE FOR ALL REGISTERED USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE SITE, AND YOU WILL INDEMNIFY US IN RESPECT OF ANY LOSS, LIABILITY, CLAIM, OR DAMAGE SUFFERED OR INCURRED BY US IN CONNECTION WITH ANY SUCH REGISTERED USER CONTENT.
You retain all copyrights and other intellectual property rights in and to your own Registered User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your Registered User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your Registered User Content, your Sign-In Name, name, likeness, and photograph in connection with any use of the related Registered User Content permitted by the previous sentence and/or to advertise and promote the Site, Kinnek, and our products and services. Without limiting the foregoing, you acknowledge and agree that uses of your Registered User Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such Registered User Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.
If you submit Registered User Content to us, each such submission constitutes a representation and warranty to Kinnek that such Registered User Content is your original creation (or that you otherwise have the right to provide the Registered User Content), that you have the rights necessary to grant to Kinnek the license to the Registered User Content as set forth above, and that it and its use by Kinnek and third parties as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates this Agreement.
6. COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
7. SUPPLIER REPRESENTATIONS AND WARRANTIES
Supplier represents, warrants, and covenants that all Products (i) will conform to all purchase and delivery specifications (including the shipping policy) in the applicable Quote or Payment Request, or otherwise provided to Kinnek or the Purchasers, (ii) will be free from defects (e.g., workmanship, material, and manufacture), (iii) will be of merchantable quality, (iv) will be packaged for shipping in a manner consistent with best practices of common carriers and the shipping guidelines, and (v) will be fit for the purposes intended by Kinnek and/or the Purchasers. All warranties run to the benefit of Kinnek and the Purchasers.
If Supplier collects or access a Purchaser’s Personal Information or Transaction Information, Supplier shall such Personal Information and Transaction Information solely for the purposes of processing and shipping such Purchaser’s order.
8. SUPPLIER FEES
Supplier may be required to pay a subscription fee to Kinnek. Upon request, Supplier shall enter into an addendum to the Agreement that includes applicable pricing terms, and such addendum shall become a part of this Agreement upon signing. If Supplier is already a party to a separate Supplier Agreement with Kinnek, then this Agreement supersedes all terms set forth in such separate Supplier Agreement, except for any terms relating to fees and payment.
9. NO WARRANTIES; LIMITATION OF LIABILITY
All Products are manufactured by the third party Suppliers, and not by Kinnek; therefore, Kinnek has no control over, and hereby disclaims any and all liability arising out of or associated with, the quality, safety, legality or efficacy of any Product.
THE SITE, THE SERVICES, THE PRODUCTS AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE SITE WILL OPERATE ERROR-FREE, THAT THE SITE, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES, OR THAT THE PRODUCTS ARE FREE OF DEFECTS OR MALFUNCTIONS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS: (I) WE SHALL NOT BE SUBJECT TO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS OF THE SITE OR THE SERVICES FROM WHATEVER CAUSE OR FOR ANY DEFECTS, MALFUNCTIONS, OR FAILURE OF THE PRODUCTS, AND YOU AGREE THAT YOU USE THE CONTENT, THE PRODUCTS, THE SERVICES, AND THE SITE AT YOUR OWN RISK; (II) WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; (III) WE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SITE, THE SERVICES, THE CONTENT OR ANY PRODUCT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (IV) OUR AGGREGATE LIABILITY SHALL BE LIMITED TO THE AMOUNT YOU HAVE PAID US IN CONNECTION WITH THE APPLICABLE ORDER OR MATTER GIVING RISE TO THE CLAIM.
THE SITE, INCLUDING, WITHOUT LIMITATION, PRODUCT DESCRIPTIONS, MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE SITE. THE SITE MAY CONTAIN INFORMATION ON CERTAIN PRODUCTS, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITE DOES NOT IMPLY THAT SUCH PRODUCT IS OR WILL BE AVAILABLE IN YOUR LOCATION. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SITE AND THE SERVICES AT ANY TIME WITHOUT NOTICE.
10. EXTERNAL SITES
The Site may contain links to third-party websites, including, without limitation, websites maintained or owned by other Registered Users (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any Registered User Content that you provide, or your access to, use, or misuse of the Content, the Services, or the Site. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
Without limiting the foregoing, if you are a Supplier, you shall also indemnify and hold harmless Kinnek against any claims, actions, loss, damage and liability (including costs and expenses) arising out of (i) actual or alleged infringement, misappropriation or violation of any third party right, including without limitation, intellectual property rights, by any of the Products; (ii) any mechanic’s liens or encumbrances imposed in connection with the Product(s) supplied; (iii) any product liability claims related to the Products, whether based on strict liability, negligence, alleged manufacturing or design defect in the Product(s), failure to warn or otherwise; or (iv) any claim brought against Kinnek by any Purchaser relating to any Product or any transaction or interaction between any Purchaser and Supplier.
12. COMPLIANCE WITH APPLICABLE LAWS
The Site is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use the Site, the Content, or the Products from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
13. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Site, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Site at any time without prior notice or liability.
14. DIGITAL MILLENNIUM COPYRIGHT ACT
Kinnek respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
245 5th Ave, 6th Floor
New York, NY 10016
If you believe that your work has been copied on the Site in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Site where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
15. BINDING ARBITRATION
16. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
YOU AGREE THAT, UNLESS CONTRARY TO ANY APPLICABLE LAW, ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE, THE SERVICES, THE CONTENT, OR THIS AGREEMENT MUST BE COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. The following provisions will survive any expiration or termination of this Agreement: “Purchases,” “Intellectual Property,” “Registered User Content,” “Communications with Us,” “Supplier Representations and Obligations,” “No Warranties; Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2016 Kinnek, Inc. All rights reserved.
Additional Supplier Terms
for Suppliers that use the Transaction Engine
1. PRODUCT TRANSACTIONS AND FEES
2. RETURNS AND CHARGEBACKS
In addition to Supplier’s own return policy set forth in a Quote or Payment Request with respect to any Product, Supplier shall also comply with Kinnek’s instructions and requests in resolving any payment dispute initiated by Purchaser. Supplier acknowledges and agrees that Supplier shall be responsible for all chargebacks in connection with a Purchaser complaint that is deemed to be valid by Supplier, Stripe, or such Purchaser’s credit card issuer.
Additional Purchaser Terms
for Purchasers that use the Transaction Engine
You must provide current, complete, and accurate billing and credit card information in connection with each Product purchased via the Transaction Engine. You must promptly contact us if your credit card is lost or stolen, or if you become aware of a potential breach of account security (such as an unauthorized disclosure or use of your Sign-In Name or Password). If payment is not received from your credit card issuer, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. You are advised to check with your bank and credit card issuer for details.
All Product purchases via the Transaction Engine are subject to the return and shipping policies provided by the Supplier in the applicable Quote or Payment Request. Although such Product returns and any other issues with purchased Products are handled directly by the applicable Supplier and in accordance with the terms set forth in the applicable Quote or Payment Request, you also agree to fully cooperate with Kinnek in our resolution of any payment dispute you may initiate.