Terms of Service

Last Updated: October 10, 2009

PLEASE READ THESE TERMS OF SERVICE. BY ACCESSING OR USING THIS WEB SITE, YOU AGREE TO THESE TERMS OF SERVICE.


Welcome to KinKast! We love home movies and the smiles people get watching them. At KinKast, it has always been a guiding principle to treat our customers the same way we like to be treated.  That being said, for the protection of our partners, suppliers, you and us, the Terms of Service are very important.

This Site is owned and operated by KinKast, Inc. ("KinKast"). These Terms of Service apply to your access to, and use of, the Site, your use of any video, digital media, media hosting services, other services provided on or through this Site (the "Services"), and to your purchase of any products ("Products") from KinKast. However, these Terms of Service don’t alter in any way the terms or conditions of any other agreement you may have with KinKast. Your use of the Site and the Services and your purchase of Products is expressly conditioned upon your agreement to these Terms of Use. You consent to KinKast communicating with you about the Site, the Products and the Services by email and/or system messages, and if necessary, by regular mail or telephone.

KinKast reserves the right to change any provision of these Terms of Service, and any other terms, policies or guidelines governing your use of the Site, at any time in its sole discretion. Such changes will be effective immediately upon posting such revisions on the Site. KinKast will notify you of such changes by posting the modified Policy on our Site and indicating at the top of the Terms of Service the date it was last updated and possibly sending a notice to the primary email address specified in your account. Your continued use of this Site or the Services or the purchase of any Products following the posting of such changes will confirm your acceptance thereof.

KinKast is all about making it easy to view and share raw, unedited video. KinKast offers both basic (free) and premium (paid subscription) account options. Services may be offered by KinKast itself, or by a third party partner/service provider. Certain Services may only be available to premium subscribers. Unless otherwise stated, these Terms of Service apply to all Services. All content and additional or replacement services made available through the KinKast Site that were not made available as of the "Last Updated" date above shall automatically be deemed to be part of the "Services" when first made available through the KinKast Site.

Subject to the terms and conditions within these Terms of Service, KinKast grants you a limited, non-exclusive license to utilize the Services so long as (i) you are of legal age to form a binding contract and (ii) you are not barred from receiving the Service under the laws of the United States. In order to access and/or use the Service, you may be required to provide current accurate identification, contact and other information as part of the registration process and/or continued use of the Service, and you will be responsible for maintaining the accuracy and completeness of such information. You may also be provided with an account, username, password and/or an email address to access or use the Service, or to enable another to access, use and modify your account (the “Account Information”). You are responsible for maintaining the confidentiality of your Account Information and, accordingly, will be fully responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. You agree to immediately notify KinKast of any unauthorized use of your Account Information, account or any other breach of security. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure.

You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).

Please refer to the Site's Privacy Policy for information on how we collect, use and disclose personal information from users of the Site. You understand and agree that KinKast stores and processes your personal information on computers located in the United States.

Use of User Information

In the event that you at any time obtain access to any KinKast user information, whether directly from KinKast or otherwise, including user names and emails (collectively the “User Information”), you agree that you may not use any such User Information in any manner except as may be specifically authorized by KinKast to carry out the purpose for which such User Information was provided. Without limiting the foregoing, you may not share such User Information with any third parties or use it for any marketing purposes of any kind. Further, you agree not to use such User Information in any manner that would be in violation of KinKast’s Privacy Policy. In no event will KinKast be obligated to provide you with any such User Information. You agree that this provision shall apply both during and after the term of your Subscription.

 

The Site includes media hosting and storage services, discussion forums or other interactive areas in which you or other users may post or transmit video, digital media, text, music, messages, information or other content or materials ("User Content"). You are solely responsible for the User Content you post or transmit and you agree not to post, transmit or otherwise publish through the Site any of the following:

1. User Content that is unlawful, defamatory, obscene, pornographic, indecent, lewd, sexually suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or harmful;
2. User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, endanger national security, or that would otherwise create liability or violate any local, state, national or international law;
3. User Content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of any party;
4. User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
5. Unsolicited promotions, political campaigning, advertising or solicitations;
6. Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
7. Viruses, corrupted data or other harmful, disruptive or destructive files; and
8. User Content that, in the sole judgment of KinKast, is objectionable, harmful or which restricts or inhibits any other person from using or enjoying the Site, or which may expose KinKast or its users to any harm or liability of any nature. 

Although we prohibit certain activities in these Terms of Service, KinKast does not control and takes no responsibility or liability for any User Content or for any loss or damage thereto, or for the nature of the User Content you may encounter. Your use of the Site is at your own risk.

You retain the copyright of any User Content you post on the Site. KinKast neither has nor wants any ownership of your User Content. However, by uploading and/or posting any User Content to the Site, you grant KinKast a perpetual, nonexclusive and royalty-free right to use the User Content and the name that is submitted in connection with such User Content, as is reasonably necessary to display the User Content and provide the Services, including but not limited to encoding and making multiple copies of your Content for online streaming and storage.

You represent and warrant that (a) you own or otherwise control all of the rights to the User Content that you post or transmit, or you otherwise have the right to post, use, display, distribute and reproduce such User Content and to grant the rights granted herein; (b) the User Content you supply is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Terms of Service and will not violate any rights of or cause injury to any person or entity.

Your Account
Certain activities on the Site require you to register and create an account. In order to create an account, you must be 18 years of age or older. By registering, you represent and warrant that you are over 18 and that all Account Information you provide is complete and accurate. KinKast reserves the right to refuse service to anyone at any time, with or without cause in its sole discretion. You agree to keep your registered email addresses and other Account Information current and complete as KinKast may send important notices about your account or the Services to that email account.

In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect KinKast's systems and customers, or to ensure the integrity and operation of KinKast's business and systems, KinKast may access and disclose any information from your account it considers necessary or appropriate, including, without limitation, user profile information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history, and posted content. You consent to such disclosure and agree that KinKast's right to disclose any such information as described above shall govern over any contrary terms in any agreement or policy of KinKast. For information regarding other ways that KinKast may use or disclose your Account Information, please see the KinKast Privacy Policy.

Account Security
You are solely responsible for maintaining the confidentiality of the password associated with your account and for restricting access to your password and to your computer while logged into the Site. You agree to accept responsibility for all activities that occur under your account or from your computer. We endeavor to use reasonable security measures to protect against unauthorized access to your account. We cannot, however, guarantee absolute security of your account, your User Content or the personal information we collect, and we cannot promise that our security measures will prevent third-party "hackers" from illegally accessing the Site or its contents. You agree to immediately notify KinKast of any unauthorized use of your account or password, or any other breach of security, and to accept all risks of unauthorized access to the Account Information and any other information you provide to KinKast.

Termination of Inactive Accounts

Free accounts may be terminated and/or deleted from our system if they remain inactive for a period of one hundred twenty (120) or more days. We will attempt to send you an email before we take action. Being active means visiting the site and signing in. Premium (paid subscription) accounts will remain active regardless of activity as long as the subscription is being paid.

The various Subscription Plans KinKast offers and the services, features and Subscription Fees applicable to such plans are available on the Site (see http://www.KinKast.com/pricing.htm). By subscribing, you agree to pay all applicable Subscription Fees and other charges in accordance with the particular Subscription Plan you select.

KinKast Services for account holders are for sharing video and other digital media with their network of family and friends, viewing for personal and family enjoyment, and long-term storage. The Services are not intended for broad commercial use by commercial sites and services (e.g., news or broadcasting site), and KinKast, in its sole discretion, reserves the right to limit, suspend or terminate your use of KinKast Services if your usage is outside the scope as defined in these Terms of Service.

Renewals
Subscriptions will automatically renew at the end of their term, either monthly or yearly, unless the subscription is terminated and/or cancelled by you or Kinkast. Upon such renewal, the credit card designated on your account will be billed the applicable Subscription Fee in effect at the time of renewal.

Upgrades/Downgrades
Through the “Account” page in your KinKast account, you can upgrade or downgrade your Subscription Plan. The new charges, whether higher for an upgrade or lower for a downgrade, will take effect at your next monthly renewal.  For, annual plans, the credit card designated on your account will be billed for the difference in price, prorated for the remainder of your term. (Proration will be on a monthly basis applied on the annual renewal anniversary date of the next month.) In an annual plan downgrade situation, if downgrading to another paid Subscription Plan, a credit will be given in the same manner. If downgrading to a free plan, no credit or refund will be given.

Subscription Cancellation
You may request cancellation of a Subscription at any time by sending an email to theteam@KinKast.com and providing clear written notice of such request, including the email address you created your account with. When KinKast receives your cancellation request, KinKast will terminate your Subscription if it has the necessary information to do so. KinKast will notify you of cancellation via email. KinKast may request additional information from you prior to terminating your Subscription(s). A Subscription is not terminated until you receive confirmation of termination from KinKast.

All Subscription Fees are nonrefundable, and upon termination, cancellation or discontinuation of a Subscription for any reason, you will not receive a refund for any Subscription Fees or other amounts previously charged to you, or for any unused portion of any Subscription. Upon termination, any User Content you have stored on the Site may no longer be retrieved, so you should make a copy of any such User Content before terminating your account.

If the credit card designated on your account is invalid and cannot be billed for the renewal Subscription Fee, KinKast may terminate your account for nonpayment. If KinKast does not have a current, working email address, you may not receive important notices from us regarding your account, which may include notices regarding termination. If your account is terminated and KinKast cannot reach you due to an invalid email address or for any other reason, KinKast will endeavor to retain your User Content on the Site for at least 30 days after termination.

Refund Policy
Accounts that subscribe to an annual Subscription Plan shall have thirty (30) days from the date of Subscription to cancel their Subscription for a full refund. Accounts that subscribe to a monthly plan shall have five (5) days from the date of Subscription to cancel their Subscription for a full refund. After the cancellation period, Subscriptions become FINAL and non-refundable, except in KinKast's sole and absolute discretion. At that point, you cannot return or cancel your Subscription for a refund, and if your account is cancelled or terminated by you or by KinKast, for any reason, you will lose and forfeit the remaining time on your Subscription.

Payment of Fees
If you sign up for a Subscription, you agree to pay all fees associated with that Subscription ("Fees").

KinKast may provide you with the ability to pay the Fees through a service such as Amazon. All Subscriptions paid through third parties are subject to the third party's Terms of Service. You are responsible for payment of any sales or use taxes associated with the Fees or your use of the Site.

You agree that until your Subscription is cancelled or terminated, you will continue to remain responsible for the Subscription Fees, even if you do not use the KinKast Service. Subscription Fees are nonrefundable.

In the event legal action is necessary to collect on balances due, you agree to reimburse KinKast for all expenses incurred to recover sums due, including attorney fees and other legal expenses.

Interruptions or Discontinuation of Services

KinKast reserves the right at any time, in its sole discretion and without notice, to suspend, modify, discontinue or permanently cancel the Services, or portions thereof; and the Subscriptions and Subscription Plans, including making changes to any policies, features and terms applicable thereto. If the Services, or any part thereof, to which you subscribe are permanently discontinued or cancelled by KinKast, your Subscription will terminate, and KinKast will have no further liability to you. In addition, there may be occasions when the Services are interrupted such as for maintenance, upgrades, system or equipment failure or otherwise. KINKAST WILL HAVE NO LIABILITY TO YOU FOR ANY INTERRUPTION, SUSPENSION, DISCONTINUANCE OR UNAVAILABILITY OF THE SERVICES FOR ANY REASON, OR FOR ANY LOSS OF OR INABILITY TO ACCESS ANY VIDEOS OR OTHER MEDIA OR MATERIALS STORED ON THE SITE.

Copyright And Limited License
The Site and all video, digital media, code and other content and materials on the Site and the selection and arrangement thereof (collectively, the "Site Materials") are the property of KinKast or its licensors or users and are protected by United States and international copyright laws.

KinKast grants you a limited, non-sublicensable, revocable license to access and use the Site solely in accordance with, and subject to, the terms set forth in these Terms of Service and any other applicable terms or agreements you may enter into with KinKast. Except as otherwise expressly permitted in writing, the license does not include, and you agree to refrain from:

1. the collection, copying or distribution of any portion of the Site or the Site Materials;
2. any resale, commercial use, commercial exploitation or distribution of the Site Materials;
3. modifying or otherwise making any derivative uses of the Site or any of the Site Materials;
4. scraping or otherwise using any data mining, robots or similar data gathering or extraction methods;
5. with the exception of your own videos and digital media, or others' videos and digital media available for download, the downloading of any portion of the Site, the Site Materials or any information contained therein; or
6. any use of the Site or the Site Materials other than for their intended purposes.

Any use of the Site or of any Site Materials other than as specifically authorized herein, without the express prior written permission of KinKast or the content owner, is strictly prohibited and will terminate and constitute a breach of the license granted herein.

Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act and other applicable law, KinKast has adopted a policy of terminating, in appropriate circumstances and at KinKast's sole discretion, account holders who are deemed to be repeat copyright infringers. KinKast may also, at its sole discretion, limit access to the Site and/or terminate any account holders who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Trademarks
"KINKAST", “KinKast”, the KinKast logo, the look and feel of the Site, and any other Product or Service names, logos or slogans of KinKast contained in the Site are trademarks of KinKast (collectively, the "KinKast Marks") and may not be copied, imitated or used without the prior written permission of KinKast. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners.

Hyperlinks
You may create a text hyperlink to the Site, provided such link does not portray KinKast or any of its Products or Services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked by KinKast at any time. Further, you may not frame the Site without KinKast's express written consent.

KinKast makes no representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party web sites accessible by hyperlink from the Site, or web sites linking to the Site. KinKast provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation or endorsement of any site or any information contained therein. When you leave the Site, you should be aware that KinKast's terms and policies no longer govern.

Third Party Content

KinKast may host third party content on the Site ("Third Party Content") solely as a convenience to its users. Such inclusion does not imply affiliation, endorsement, approval, or control by KinKast of any Third Party Content. KinKast makes no claim or representation regarding, and accepts no responsibility for, such Third Party Content or for the quality, accuracy, nature, ownership or reliability thereof. Users use such Third Party Content at their own risk.

KinKast reserves the right at any time and at its sole discretion to modify or discontinue, temporarily or permanently, the Service or any part thereof, with or without notice. You agree that KinKast shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service.

THE SITE, THE SITE MATERIALS, THE PRODUCTS AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, KINKAST DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE SITE, THE SITE MATERIALS, THE PRODUCTS AND THE SERVICES.

KINKAST DOES NOT REPRESENT OR WARRANT THAT THE SITE MATERIALS OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE, ITS SERVERS OR EMAIL SENT FROM KINKAST OR THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KINKAST IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, VIDEOS OR PHOTOGRAPHY. KINKAST ALSO MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SITE AND SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREON.

IN NO EVENT SHALL KINKAST OR ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE OR VIEW THE SITE, THE SERVICES, THE PRODUCTS, THE CONTENT OR THE SITE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM KINKAST, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY TERMINATION, SUSPENSION OR OTHER FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO KINKAST'S RECORDS, PROGRAMS OR SERVICES.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF KINKAST, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE, THE SERVICES, THE PRODUCTS, THE CONTENT OR THE SITE MATERIALS, EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO KINKAST FOR ACCESS TO OR USE OF THE SITE OR THE SERVICES OR FOR THE PURCHASE OF PRODUCTS.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

You agree to indemnify and hold KinKast, its parents, subsidiaries, affiliates, officers, employees and partners, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys' fees and costs, made by any third party due to or arising out of (a) your use or misuse of the site, (b) the viewing of your content or video or other digital media, (c) the violation of laws, rules, regulations or terms of this Agreement, or (d) infringement by your content, by you, or by someone using your account, of any intellectual property or any other right of any person or entity. KinKast reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with KinKast in asserting any available defenses.

Your use of the Site is subject to all applicable local, state, national and international laws and regulations. These Terms of Use and your use of the Site shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms of Use shall be filed only in the state and federal courts located in Santa Clara County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms of Use.

If any provision of these Terms of Use shall be deemed invalid, unlawful, void or for any reason unenforceable, that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

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