Effective Date: August 1, 2017
Acceptance of Terms.
These Terms of Service (the “Terms” or the “Agreement”) are an agreement between you (“User” or “you” or “your”) and Kinetic Aesthetic, Inc. (“Kinetic Aesthetic,” or “we,” “us” or “our”). By using any of our products and services, you represent that you are at least 18 years old, legally able to enter into a contract and have read and agree to these Terms.
If you do not agree to these Terms, you are not permitted to use the Services and must delete any software associated with Services and deactivate any user accounts associated with the Services.
Description of the Service.
We provide a mobile application called Whorl, which offers a way for users to create a variety of generative artworks to share or print on physical products. The Services include any associated websites and downloaded mobile application or any other software or services provided by us.
Modifications.
We may modify these Terms from time to time. Any changes to the Terms will be effective when we post them, and apply to all access to and use of the Services thereafter.
Grant of Limited License.
While you comply with this Agreement, we grant you a non-exclusive, limited, non-sublicensable, non-transferable, revocable license to use the Services as described in these Terms (the “License”).
You may use the Services on any platform, including but not limited to cell phones, tablets, or computers that you own or control and as permitted by the Usage Rules set forth in the iTunes App Store Terms of Service.
Any rights not specifically granted in this Agreement are reserved by us. The Services are licensed, and not sold, to you. Your use of the Services confers no title or ownership in or to the Services and should not be construed as a sale of any rights in the Services.
License Term.
The License Term begins with your first use of the Services and shall continue until the earlier of either termination or until your account is otherwise deactivated.
License Termination.
We reserve the right, in our sole discretion and at any time, to terminate the License and the User's access to the Services.
Apple App Store Terms.
This Agreement is between you and Kinetic Aesthetic only, and not with Apple, and Kinetic Aesthetic, not Apple, is solely responsible for the Services. You acknowledge that Kinetic Aesthetic, not Apple, is responsible for addressing any of your claims or any third party claims relating to the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Services infringe third party’s intellectual property rights, Kinetic Aesthetic, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Subscription
For subscriptions to our Whorl iOS application, please see the information on subscriptions in Apple’s Media Services Terms and Conditions, which apply to those subscriptions. https://www.apple.com/legal/internet-services/itunes/
Third-Party Printing.
We offer printing services in partnership with a third-party service called Kite.ly. Prints ordered via the Services will be fulfilled by Kite.ly and this transaction will be governed by Kite.ly’s then-current terms of service or other applicable user agreements.
Fees and Payment.
You agree to pay all fees or charges incurred by your account, including applicable taxes, in accordance with this Agreement and the billing terms that
are in effect at the time that the fee or charge becomes payable. Unless otherwise indicated, all prices are in the currency listed within the application. You represent to us that you are an authorized user or an authorized user of the chosen method of payment used to pay all fees you incur plus all applicable taxes. You are fully liable for all charges to your account.
Your Representations and Warranties.
You represent and warrant that any information that you provide us while using the Services will be truthful and accurate.
You represent and warrant that your use of the Services does not violate any law, statute or regulation in your jurisdiction. You agree to take full responsibility for ensuring that your continued use of the Services is lawful in your jurisdiction.
Intellectual Property Rights.
All intellectual property rights in and to the Services are owned by Kinetic Aesthetic. “Whorl” and other logos, designs, headers, and names appearing or relating to our products or services are registered trademarks and/or trade dress of Kinetic Aesthetics. These trademarks and/or trade dress (as applicable) may not be used in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used in whole or in part without the prior written permission of Kinetic Aesthetic.
Privacy Policy
Your use of the Services is governed by the Whorl Privacy Policy, which is incorporated into this Agreement by reference.
Security
You agree to maintain the security of your password and identification. You also agree to be fully responsible for all use of your account and for any actions that may occur using your account.
Prohibited Uses
Unless provided for in writing, you may not use the Services to do any of the following:
• Incorporate the Services into any third-party product.
• Modify the Services.
• Remove or disable any proprietary notices included with the Services.
• Violate any law, statute or regulation, or use the Services in any way that facilitates such violation.
• Disrupt or interfere with any other User’s use or enjoyment of the Services.
• Use a false identity or represent yourself as someone else.
• Use or attempt to access another user’s account, password, services or systems.
• Attempt to transmit any content or information that you are not authorized to transmit.
• Make any of the images created with Whorl commercially available without our express permission.
Rules of Conduct
By way of examples and not as limitations, you agree that you may not access the Services to:
• Violate any applicable laws or regulations, or promote or encourage any illegal activity.
• Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including but not limited to the rights of privacy and publicity.
• Restrict or inhibit any other user from using and enjoying the Services.
• Publish, post, upload, transmit, distribute, disseminate or otherwise make available any material that is harmful, illegal, abusive, vulgar, sexually explicit, defamatory, libelous, obscene, infringing, embarrassing, unwanted, invasive of another’s right of privacy or publicity, hateful or racially, ethnically or otherwise offensive or objectionable.
• Publish, post, upload, transmit, distribute, disseminate or otherwise make available surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
• Publish, post, upload, transmit, distribute, disseminate or otherwise make available any material or information, including but not limited to images, photographs, sound files, text files, graphics files, and videos that infringe or misappropriate any copyright, trademark, patent, trade secret, or right of privacy or publicity, or other right of any party.
• Publish, post, upload, transmit, distribute, disseminate or otherwise make available any files that contain viruses, spyware, Trojan horses, worms, time bombs, cancelbots, corrupted data, or any other similar
software or programs that may damage or interfere with the operation of the Services, other users’ access to the Services and/or other users’ computers.
• Publish, post, upload, transmit, distribute, disseminate or otherwise make available any material for which copyright management or digital rights 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 has been falsified, deleted, or otherwise disabled.
• Impersonate or create a false identity.
• Collect in any manner information regarding users of the Services or other user or usage information or any portion thereof, or distribute such information to any third party.
• Attempt to obtain passwords, other Account information, or any other private information from any other user of the Services, including, without limitation, the collection of personal information of others, including e-mail addresses.
• Make false reports to Whorl administrators.
• Use the Services for fraudulent transactions.
• Use the Services to offer to transfer, buy, auction, rent, lease, loan or sell access to your account.
• Frame or mirror any part of the Services without Kinetic Aesthetic’s express prior written consent.
• Institute an attack upon any server used in connection with the Services or any portion thereof or otherwise attempt to disrupt such servers.
• Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble all or any portion of the Services or the Content.
• Remove, alter, conceal any copyright, trademark, patent or other proprietary rights notices contained in the Services and/or the Content.
Limitation of Liability
Kinetic Aesthetic disclaims liability for any loss, injury, claim or damage related to your use of its Services, including without limitation, those resulting from errors or omissions, a site or application being down, or data loss. We will not be liable to you for any indirect, incidental, consequential, reliance, punitive or special damages. In no event will we be liable for special, incidental or consequential damages resulting from possession, use or malfunction of the Services, including damages to property, loss of goodwill, computer failure or malfunction and, to the extent permitted by law, damages for personal injuries, even if we have been advised of the possibility of such damages. Our liability shall not exceed the actual price paid for the license to use the Services.
You expressly acknowledge and agree that use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you. To the maximum extent permitted by applicable law, the Services are provided “as is” and “as available”, with all faults and without warranty of any kind, and Kinetic Aesthetic hereby disclaims all warranties and conditions with respect to the services, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. Kinetic Aesthetic does not warrant against interference with your enjoyment of the services, that the functions contained in, or provided by, the Services will meet your requirements, that the operation of the services will be uninterrupted or error-free, or that defects in the Services will be corrected. No oral or written information or advice given by Kinetic Aesthetic or its authorized representative(s) shall create a warranty. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
Other Websites.
We may provide links to other websites from time to time. These links are provided for your convenience. Kinetic Aesthetic does not endorse or take responsibility for the content of these other websites and will not be liable in any for any damages or losses which you may suffer by using those websites. If you choose to access such linked websites, you do so at your sole risk.
Indemnification.
You agree to indemnify and defend Kinetic Aesthetic, its partners, affiliates, subsidiaries, officers, directors, agents and assigns from all damages, losses and expenses arising from your acts and omissions while using the Services and from any breach of any representations and/or warranties contained in this Agreement.
Assignment.
Kinetic Aesthetic may assign this Agreement, in whole or in part, at any time. Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under the Agreement without our express prior written consent.
Injunction.
Because Kinetic Aesthetic would be irreparably damaged if the terms of this Agreement were not specifically enforced, you agree that Kinetic Aesthetic shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to Your breaches of this Agreement, in addition to such other remedies as Kinetic Aesthetic may otherwise have under applicable laws.
Feedback.
You may provide feedback, suggestions, and ideas about the Services. You grant us the irrevocable right to use your feedback and incorporate your suggestions into our Services without any obligation to provide attribution or compensation to you or any third party.
Contact.
Contact us at any time by email: hello@wwwhorl.com
Miscellaneous
• Jurisdiction and Choice of Law: This Agreement, and any disputes arising from or relating to the conduct covered by this Agreement, are governed by the laws of the State of California. You hereby purposefully avail and submit to the exclusive jurisdiction, including waiving any objection to personal jurisdiction, of the courts of Los Angeles, California.
• Entire Agreement: This Agreement represents the entire agreement between the parties concerning the Services.
• Severability: In any provision of this Agreement is held by a court or other tribunal to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
• Language: The parties agree that all correspondence relating to these Terms of Use, shall be written in the English language.
• No Waiver: No waiver of by Kinetic Aesthetic of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Kinetic Aesthetic to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
Effective Date: August 1, 2017
