Terms of Use

1. ACCEPTANCE OF TERMS

These Terms of Use (“Terms”) apply to the Kymeta Corporation (“Kymeta”) website, Kymetacorp.com, and its associated webpages (the “Website”) and your access to and use of the information, content and ancillary services; including, but not limited to, communications forums (“Forums”), technical support, and product information (together “Resources”) made available on or through the Website. Kymeta reserves the right to modify, suspend or terminate the Website or Resources from time to time at its sole discretion and without notice. Please read these Terms carefully before using the Website. By accessing or using the Website or Resources you accept and agree to be legally bound to these Terms, as may be amended or supplemented from time to time in Kymeta’s sole discretion, and you agree to all operating rules and/or policies of Kymeta. All such rules and policies, including without limitation, Kymeta’s Privacy Policy, are hereby incorporated into these Terms by this reference.

If you do not agree to all of these terms, please do not ACCESS OR use the Website OR ANY OF THE RESOURCES.

If you are using the Website or Resources on behalf of your employer, you represent to Kymeta that you are authorized to accept these Terms on your employer’s behalf. If you are using or otherwise participating in Kymeta Forums, you represent to Kymeta that you are at least 18 years of age.

2. YOUR OBLIGATIONS

In consideration of your use of the Website and/or Resources, you agree to be solely responsible for providing true, accurate, current, and complete information about you if prompted by the Website or Resources. Kymeta is not liable for any unauthorized use of the Website or Resources, including Forums. You acknowledge and agree that certain Resources may provide password-restricted access to information such as names and certain terms of your existing contracts to assist you in purchasing, maintaining and/or supporting your Kymeta products. By using the Website and registering for the Resources, you consent to Kymeta’s display of such information via the Resources and accept all risks of unauthorized access to such information. If you provide any information that is false, inaccurate, out of date, or incomplete, or Kymeta has reasonable grounds to suspect that such information is false, inaccurate, not current, or incomplete, Kymeta may suspend or terminate your account and/or refuse any and all current or future use of, or access to, the Resources (or any portion thereof).

3. CONFIDENTIALITY OF KYMETA INFORMATION

3.1 You acknowledge that you may obtain direct access via the Website and/or Resources to certain Kymeta business, technical, product, proprietary or trade secret information (“Confidential Information”). You must hold Confidential Information in strict confidence and may provide Confidential Information to only employees in your organization and only on a need-to-know basis. You may use the Confidential Information solely for the purpose of purchasing, maintaining, and supporting your Kymeta products. Between Kymeta and yourself, Kymeta is and will always remain the sole owner of Confidential Information. You agree, either as an individual or on behalf of your employer, to be bound by the provisions of this Section 3. Furthermore, if you are acting on behalf of your employer, your employer agrees to remain liable for your violations of this Section 3.

3.2 You do not acquire any rights in or to Confidential Information, except the limited right to use the Confidential Information as described above.

3.3 Any breach of the this Section 3 will result in irreparable harm to Kymeta for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Kymeta will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if Kymeta seeks such an injunction.

3.4 Upon termination of the Terms or Kymeta’s written request, you must cease use of any Confidential Information and return or destroy all Confidential Information.

3.5 The Terms impose no obligation upon you with respect to Confidential Information that you can establish by legally sufficient evidence: (a) you possessed, or knew, prior to your receipt from Kymeta, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission by you, or otherwise without violation of the Terms; (c) you obtained from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) you independently developed the Confidential Information without the use of the Confidential Information and without the participation of individuals who have had access to Confidential Information, or (e) in response to a valid order by a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either party under these Terms and as disclosed after prior notice to Kymeta adequate to afford Kymeta the opportunity to object to the disclosure.

4. User CONDUCT

4.1 You understand that all information, data, text, messages, or other materials (such as comments, ideas or suggestions for new or improved products, technologies, marketing/advertising campaigns or product names, data, articles, documents, discussion forum threads, blog entries, computer code, software sample code, source code, scripts, patches, bug fixes, binaries or executables), whether publicly posted or privately transmitted by a user (“User Content”), on the Website or Resources, that you access is done so at your sole risk and responsibility. This means that you, and not Kymeta, are entirely responsible for your use of User Content. Kymeta does not control the User Content posted via the Website or Resources and, as such, does not guarantee the accuracy, integrity, or quality of such User Content. Kymeta assumes no responsibility or liability over the sharing of or use of User Content among users.

4.2 By submitting the User Content to the Website or Resources or to Kymeta for inclusion on the Website or Resources, you grant Kymeta and all other users of the Website and/or Resources a perpetual, unlimited, worldwide, non-exclusive, no-charge, royalty-free, irrevocable license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, distribute and use in any way (including commercial uses) the User Content (including in digital form). In granting the license above, you represent and warrant that you either own or have all the necessary intellectual property rights necessary to grant the license in and to the User Content uploaded. You agree to indemnify and hold Kymeta harmless from any third-party allegation of infringement based upon Kymeta’s use of the User Content or the presence of the User Content on the Website or Resources. Do not post, upload, submit or otherwise provide User Content to the Website or Resources that are protected by the intellectual property rights of others.

4.3 Unless otherwise explicitly stated, herein, any User Content provided by you in connection with this Website shall be deemed to be provided on a non-proprietary and non-confidential basis. Kymeta shall have no obligation of any kind with respect to such User Content and shall be free to use or disseminate such User Content on an unrestricted basis for any purpose. 4.4 You acknowledge that you are responsible for the User Content that you submit, and you, not Kymeta, has full responsibility for the User Content, including its legality, reliability, appropriateness, originality and copyright including email messages, newsgroup postings, chat, and personal or business web pages.

4.5 You agree not to use the Website or Resources in any way for spamming or to transmit chain letters, junk email or bulk communications. Furthermore, you agree not to transmit unsolicited or bulk communications to any Kymeta account holder or to any Kymetacorp.com email address (regardless of whether you use the Website to transmit any such communication). In the event of such spamming, Kymeta is entitled to obtain injunctive relief against any such transmission (in addition to all other remedies available at law or in equity). Kymeta reserves the right to block, filter or delete unsolicited email.

4.6 You agree not to use any Kymeta domain name as a pseudonymous return email address for any communications that you transmit from another location or through another service; and you may not pretend to be someone else or spoof their identity when using the Website or Resources.

4.7 You agree not to use the Website or Resources for any unlawful activities not otherwise covered above. Additionally, you agree NOT to use the Website or Resources to:

• (a) impersonate any person or entity, including, but not limited to, a Kymeta official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
• (b) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information or User Content transmitted through the Website or Resources or develop hidden pages or images (those not linked to Kymetacorp.com from another accessible page);
• (c) upload, post or otherwise transmit any User Content that you do not have a right to transmit to the public under any law or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
• (d) upload, post or otherwise transmit any material that contains software viruses, worms, Trojan horses or other malicious, illegal or unlawful code, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• (e) disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Website or Resources are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
• (f) post, publish, or distribute any radical, defamatory, harassing, violent, obscene, infringing, pornographic (including child pornography), or other unlawful material or information;
• (g) intentionally or unintentionally violate any applicable local, state, national or international law, or any regulations having the force of law; or
• (h) collect or store personal data about other users.
  

4.8 Kymeta reserves the right, in its sole discretion, for any reason, and without warning or notice, to edit or remove User Content or your access to the Website or Resources. Violation of the restrictions set forth in this Section or otherwise herein (“Restrictions”) may also result in the termination or suspension of your account and/or access to the Website or the Resources (including passwords). These Restrictions apply to all User Content provided to or through the Website or Resources and all use of the Website or any Resources.

5. INDEMNITY

You agree to indemnify and hold Kymeta, and its subsidiaries, affiliates, officers, agents, co-branders, alliance members, or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your User Content, your use of the Website or Resources, including any use by your employees, your connection to the Website or Resources, your violation of the Terms, or your violation of any rights of another.

6. NOTICES; MODIFICATION AND TERMINATION

Kymeta may provide notices of changes to the Terms or other matters by displaying notices or links to notices to you generally on the Website or Resources. Kymeta will not be liable to you or any third-party for any termination, modification, or suspension of the Website or Resources.

7. ADVERTISEMENTS AND PROMOTIONS

Kymeta may run advertisements and promotions from third parties on the Website or Resources. Kymeta makes no warranty or representation as to the content or accuracy of any such advertisement or promotion or regarding any products or services of such advertiser. Any correspondence or business dealings with, or participation in promotions of, advertisers other than Kymeta found on or through the Website or Resources, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. Kymeta is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such non-Kymeta advertisers on the Website.

8. LINKS

8.1 The Website or Resources may provide, or third parties may provide, links to other internet sites or resources. Kymeta makes no warranty or representation as to the content or accuracy of any such external sites or regarding any products, information or services found on such sites. Because Kymeta has no control over such sites and resources, you acknowledge and agree that Kymeta is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Kymeta will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party content, goods or services available on or through any such site or resource.

8.2 This Website may be linked to other websites which are not under the control of and are not maintained by Kymeta. Kymeta is not responsible for any third-party content of those sites. Kymeta is providing these links to you only as a convenience, and the inclusion of any link to such sites does not imply endorsement by Kymeta of those sites.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 The Website, Resources, and any software (including any downloads available at the Website or otherwise provided by Kymeta) may contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Any third-party content contained in third-party advertisements or information presented to you through the Website or advertisers is protected by copyrights, trademarks, service marks, patents, publicity rights, or other proprietary rights and laws. Except as expressly authorized by Kymeta or advertisers, you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Website or the software, in whole or in part.

9.2 Kymeta is committed to respecting others’ intellectual property rights, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement on our Website, please contact our copyright agent as described in our copyright policy.

9.3 All content (except for the User Content) provided on this Website is provided by or to Kymeta by its respective manufacturers, authors, developers and vendors (the “Third Party Providers”) and is the copyrighted work of Kymeta and/or the Third Party Providers. Except as stated herein, none of the content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior express written permission of Kymeta or the Third Party Provider. No part of the Website or Resources, including logos, graphics, sounds or images, may be reproduced or retransmitted in any way, or by any means, without the prior express written permission of Kymeta. You also may not, without Kymeta’s prior express written permission, “mirror” any content contained on this Website, the Resources, or on any other server.

9.4 Except for the license to the User Content pursuant to Section 4.2 (above), nothing in these Terms or on the Website or Resources shall be construed as conferring any license under any of Kymeta’s or any Third Party Provider’s intellectual property rights, whether by estoppel, implication, or otherwise. You acknowledge sole responsibility for obtaining any such licenses.

10. DISCLAIMER OF WARRANTIES

THE WEBSITE, RESOURCES INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE CONTENT ON THE WEBSITE IS PROVIDED “AS IS”, “WITH ALL FAULTS”. KYMETA DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NONINFRINGEMENT. KYMETA MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY OF THE CONTENT CONTAINED ON THE WEBSITE. KYMETA MAY MAKE AVAILABLE ON THE WEBSITE CONTENT AVAILABLE FOR DOWNLOADING WHICH HAS BEEN SUBMITTED BY THIRD-PARTY USERS OF THE WEBSITE. ANY QUESTIONS REGARDING THE CONTENT SHOULD BE DIRECTED TO THE PROVIDERS OF SUCH CONTENT. IN NO EVENT WILL KYMETA OR ITS SUPPLIERS BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF THE CONTENT OR INFORMATION FROM THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KYMETA OR THROUGH OR FROM THE WEBSITE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE TERMS. KYMETA’S EMPLOYEES ARE NOT AUTHORIZED TO VARY THESE TERMS.

11. LIMITATION OF LIABILITY

11.1 TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, KYMETA SHALL NOT, IN ANY INSTANCE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE (EVEN IF KYMETA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO: (i) THE USE OF OR THE INABILITY TO USE THE WEBSITE OR RESOURCES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, SOFTWARE, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITE OR RESOURCES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE OR RESOURCES; OR (v) ANY OTHER MATTER RELATING TO THE WEBSITE OR RESOURCES, INCLUDING CONTENT YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE FROM THE WEBSITE.

11.2 YOU HAVE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE WEBSITE AND/OR RESOURCES AND WILL NOT MAKE A CLAIM AGAINST KYMETA FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM THE USE OF THE CONTENT.

11.3 YOU AGREE TO HOLD KYMETA HARMLESS FROM, AND YOU COVENANT NOT TO SUE KYMETA FOR, ANY CLAIMS BASED ON USING THE WEBSITE, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

12. GENERAL INFORMATION

12.1 The Terms constitute the entire agreement between you and Kymeta and govern your use of the Website and Resources, superseding any prior agreements between You and Kymeta (including, but not limited to, any prior versions of the Terms). You also may be subject to additional terms and conditions that may apply when you use other Kymeta services, third-party content, or third-party software. You may not assign or otherwise transfer the Terms nor any right granted hereunder.

12.2 These Terms shall be governed by the State of Washington without regard to its choice of laws rules. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. You and Kymeta agree to submit to the personal and exclusive jurisdiction of the state courts located within King county.

12.3 Kymeta controls and operates this Website from its headquarters in the United States of America and makes no representation that this content is appropriate or available for use in other locations. If You use this Website from other locations, you are responsible for compliance with applicable local laws including but not limited to the export and import regulations of other countries.

12.4 You acknowledge and agree that content is subject to the U.S. Export Administration Laws and Regulations. Diversion of such content contrary to U.S. law is prohibited. You agree that none of the content, nor any direct product therefrom, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

12.5 This Website could include inaccuracies or typographical errors. Kymeta and the Third-Party Providers may make improvements and/or changes in the products, services, programs, and prices described in this Website at any time without notice. Changes are periodically made to the Website. Kymeta may amend these Terms at any time by posting the amended terms on this site.

12.6 The failure of Kymeta to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If a court of competent jurisdiction finds any provision of the Terms to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website, the Resources or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms are for convenience only and have no legal or contractual effect.

12.7 These Terms represent the entire understanding relating to the use of the Website and prevail over any prior or contemporaneous, conflicting, or additional, communications.