User Agreement

This Agreement was last modified on August 31, 2017.

This User Agreement describes the terms and conditions which you accept by using our Website or our Services. We have incorporated by reference some linked information.

 

In this User Agreement:

"Account" means the account associated with your email address.

"Buyer" means a User that purchases Seller Services or items from Sellers or identifies a Seller through the Website. A User may be both a Buyer and a Seller under this agreement.

"Kimochi""we""our"“company” or “the company” or "us" means DMMG S.à.r.l.

"Inactive Account" means a User Account that has not been logged into for a 6 month period, or other period determined by us from time to time.

"Intellectual Property Rights" means any and all intellectual property rights, existing worldwide and the subject matter of such rights, including: (a) patents, copyright, rights in circuit layouts (or similar rights), registered designs, registered and unregistered trademarks, and any right to have confidential information kept confidential; and (b) any application or right to apply for registration of any of the rights referred to in paragraph (a), whether or not such rights are registered or capable of being registered and whether existing under any laws, at common law or in equity.

"Project" or "Listing" means a job offered or awarded by a Buyer via the Website, which may include a Project listed by a Buyer, a Project awarded by a Buyer, a service bought by a Buyer from a Seller.

"Seller" means a User that offers and provides services or identifies as a Seller through the Website. A User may be both a Buyer and a Seller under this agreement.

"Seller Services" means all services provided by a Seller.

"User""you" or "your" means an individual who visits or uses the Website.

"User Contract" means: (1) this User Agreement; (2) any other contractual provisions accepted by both the Seller and Buyer uploaded to the Website, to the extent not inconsistent with the User Agreement; (3) the Project terms as awarded and accepted on the Website, to the extent not inconsistent with the User Agreement; and (4) any other material incorporated by reference from time to time.

"Website" means the Websites operated by Kimochi and available at: http://workforhire.kimochi.co/ and any of its regional or other domains or properties, and any related Kimochi service, tool or application, specifically including mobile web, any iOS App and any Android App.

 

  1. Overview

By accessing the Website, you agree to the following terms with Kimochi.

We may amend this User Agreement and any linked information from time to time by posting amended terms on the Website, without notice to you.

The Website is an online venue where Users buy and sell Seller Services and items. Buyers and Sellers must register for an Account in order to buy or sell Seller Services and/or items. The Website enables Users to work together online to complete and pay for Projects, buy and sell items. We are not a party to any contractual agreements between Buyer and Seller in the online venue, we merely facilitate connections between the parties.

We may, from time to time, and without notice, change or add to the Website or the information, products or services described in it. However, we do not undertake to keep the Website updated. We are not liable to you or anyone else if any error occurs in the information on the Website or if that information is not current.

  1. Scope

Before using the Website, you must read the whole User Agreement, the Website policies and all linked information.

You must read and accept all of the terms in, and linked to, this User Agreement, the Kimochi Privacy Policy and all Website policies. By accepting this User Agreement as you access our Website, you agree that this User Agreement will apply whenever you use the Website, or when you use the tools we make available to interact with the Website. Some Websites may have additional or other terms that we provide to you when you use those services.

  1. Eligibility

You will not use the Website if you:

1.     are not able to form legally binding contracts;

2.     are under the age of 18;

3.     a person barred from receiving and rendering services under the laws of the United States or other applicable jurisdiction;

4.     are suspended from using the Website; or

5.     do not hold a valid email address.

All free user accounts are associated with individuals. Login credentials should not be shared by users with others. The individual associated with the account will be held responsible for all actions taken by the account, without limitation.

Subject to your local laws, a person over 15 but under 18 can use an adult's account with the permission of the account holder. However, the account holder is responsible for all actions taken by the account, without limitation.

Users may provide a business name or a company name, which is associated with the User's Account. Users acknowledge and agree that where a business name or company name is associated with their Account, this User Agreement is a contract with the User as an individual (not the business or company) and Users remain solely responsible for all activity undertaken in respect of their Account.

A company, corporation, trust, partnership or other non-individual corporate entity may be a User.

We may, at our absolute discretion, refuse to register any person or entity as a User.

You cannot transfer or assign any rights or obligations you have under this agreement without prior written consent.

 

  1. Using Kimochi

While using the Website, you will not attempt to or otherwise do any of the following:

1.     post content or items in inappropriate categories or areas on our Websites and services;

2.     infringe any laws, third party rights or our policies;

3.     fail to deliver payment for services delivered to you;

4.     fail to deliver Seller Services purchased from you;

5.     post false, inaccurate, misleading, deceptive, defamatory or offensive content (including personal information);

6.     transfer your Kimochi account (including feedback) and Username to another party without our consent;

7.     distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes;

8.     distribute viruses or any other technologies that may harm Kimochi, the Website, or the interests or property of Kimochi users (including their Intellectual Property Rights, privacy and publicity rights) or is unlawful, threatening, abusive, defamatory, invasive of privacy, vulgar, obscene, profane or which may harass or cause distress or inconvenience to, or incite hatred of, any person;

9.     download and aggregate listings from our website for display with listings from other websites without our express written permission, "frame", "mirror" or otherwise incorporate any part of the Website into any other website without our prior written authorisation;

10.  attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by us in connection with the Website;

11.  copy, modify or distribute rights or content from the Website or Kimochi's copyrights and trademarks; or

12.  harvest or otherwise collect information about Users, including email addresses, without their consent.

 

  1. Taxes

You are responsible for paying any taxes, including any goods and services or value added taxes, which may be applicable depending on the jurisdiction of the services provided.

Depending on your residency or location, you may be subject to certain ad valorem or other taxes, on certain fees that we charge. These taxes will be added to fees billed to you, if applicable.

You acknowledge that you must comply with your obligations under income tax provisions in your jurisdiction.

 

  1. Promotion

We may display your company or business name, logo, images or other media and/or other marketing materials relating to the Website, except where you have explicitly requested that we do not do this and we have agreed to such a request in writing.

You acknowledge that we may use the public description of your Projects and the content of your profile information on the Website for marketing and other related purposes.

 

  1. Content

When you give us content, you grant us a worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future.

You acknowledge and agree that: (1) we act only as a forum for the online distribution and publication of User content. We make no warranty that User content is made available on the Website. We have the right (but not the obligation) to take any action deemed appropriate by us with respect to your User content; (2) we have no responsibility or liability for the deletion or failure to store any content, whether or not the content was actually made available on the Website; and (3) any and all content submitted to the Website is subject to our approval. We may reject, approve or modify your User content at our sole discretion.

You represent and warrant that your content:

1.     will not infringe upon or misappropriate any copyright, patent, trademark, trade secret, or other intellectual property right or proprietary right or right of publicity or privacy of any person;

2.     will not violate any law or regulation;

3.     will not be defamatory or trade libellous;

4.     will not be obscene or contain ***** pornography;

5.     will not contain the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons

6.     will not contain material linked to terrorist activities

7.     will not include incomplete, false or inaccurate information about User or any other individual; and

8.     will not contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

You acknowledge and agree that we may transfer your personal information to an affiliated entity. If you wish to withdraw your consent, you acknowledge and agree that we may be unable to provide you with access to the Website and may close your Account.

Information on the Website may contain general information about legal, financial, health and other matters. The information is not advice, and should not be treated as such. You must not rely on the information on the Website as an alternative to professional advice. If you have specific questions about any matter you should consult your professional adviser.

We provide unmonitored access to third party content, including User feedback and articles with original content and opinions (or links to such third party content). We only act as a portal and have no liability based on, or related to, third party content on the Website, whether arising under the laws of copyright or other intellectual property, defamation, libel, privacy, obscenity, or any other legal discipline.

The Website may contain links to other third party websites. We do not control the websites to which we link from the Website. We do not endorse the content, products, services, practices, policies or performance of the websites we link to from the Website. Use of third party content, links to third party content and/or websites is at your risk.

In relation to deletion or hiding of any information or content, using the Website to delete, hide or otherwise dispose of information does not imply permanent deletion of content or information. Information may be retained for a period of time to fulfil record keeping, regulatory, compliance, statistical, law enforcement and other obligations.

 

  1. Feedback, Reputation and Reviews

You acknowledge that you transfer copyright of any feedback, reputation or reviews you leave consisting of comments and any rating(s) (e.g. quality, communication etc.) together with any composite rating by us. You acknowledge that such feedback, reputation and reviews belong solely to us, notwithstanding that we permit you to use it on our Website while you remain a User. You must not use, or deal with, such feedback, reputation and reviews in any way inconsistent with our policies as posted on the Website from time to time without our prior written permission.

You may not do (or omit to do) anything that may undermine the integrity of the Kimochi feedback system. We are entitled to suspend or terminate your Account at any time if we, in our sole and absolute discretion, are concerned by any feedback about you, or your feedback rating, where we believe our feedback system may be subverted.

Our feedback ratings belong to us and may not be used for any purpose other than facilitating the provision of Seller Services via the Website. You may not use your Seller or Buyer feedback (including, but not limited to, marketing or exporting your any or all of your composite rating(s) or feedback comments) in any real or virtual venue other than a website operated by Kimochi or its related entities, without our written permission.

 

  1. Advertising

Unless otherwise agreed with us, you must not advertise an external website, product or service on the Website. Any website address posted on the Website, including in a listing, bid, listing description, clarification board or the message board, must relate to a Project, item listed, user or service being performed on the Website.

We may display advertisements or promotions on the Website. You acknowledge and agree that we shall not be responsible for any loss or damage of any kind incurred by you as as result of the presence of such advertisements or promotions or any subsequent dealings with third parties. Furthermore, you acknowledge and agree that content of any advertisements or promotions may be protected by copyrights, trademarks, service marks, patents or other intellectual property or proprietary rights and laws. Unless expressly authorized by Kimochi or third party right holders, you agree not to modify, sell, distribute, appropriate or create derivative works based on such advertisement/promotions.

 

  1. Communication

You must not post your email address or any other contact information (including but not limited to Skype ID or other identifying strings on other platforms) on the Website, except in the "email" field of the signup form, at our request or as otherwise permitted by us on the Website.

We may read all correspondence posted to the Website and download or access, and test (if necessary), all uploaded files, programs and websites related to your use of the Website for the purpose of investigating fraud, regulatory compliance, risk management and other related purposes.

 

  1. User Services

Upon the Buyer awarding a Project to the Seller, and the Seller's acceptance on the Website, or the purchase of an item by a Buyer from the Seller, the Buyer and Seller will be deemed to have entered into a User Contract under which the Buyer agrees to purchase, and the Seller agrees to deliver the Seller Services. You agree not to enter into any contractual provisions in conflict with the User Agreement.

You are solely responsible for ensuring that you comply with your obligations to other Users. If you do not, you may become liable to that User. You must ensure that you are aware of any domestic laws (including common law), international laws, statutes, ordinances and regulations relevant to you as a Buyer or Seller, or in any other uses you make of the Website.

If another User breaches any obligation to you, you are solely responsible for enforcing any rights that you may have. For the avoidance of doubt, we have no responsibility for enforcing any rights under a User Contract.

Depending on their jurisdiction, Sellers and Buyers may have rights under statutory warranties that cannot lawfully be excluded. Nothing in this User Agreement is intended to override a right that by applicable law may not be excluded. Nothing in this User Agreement is intended to violate any laws relating to unfair contracts, and this agreement has been specifically redrafted to ensure compliance with unfair contracts legislation. To the extent that any component of this User Agreement is in conflict with inalienable rights under local laws, all parties intend for this agreement to be read down only insofar as to be in compliance with such local laws and no further.

Each User acknowledges and agrees that the relationship between Buyers and Sellers is that of an independent contractor. Nothing in this User Agreement creates a partnership, joint venture, agency or employment relationship between Users. Nothing in this User Agreement shall in any way be construed as forming a joint venture, partnership or an employer-employee relationship between Kimochi and any User.

 

  1. Right to Refuse Service

We may close, suspend or limit your access to your Account without reason. Without limiting the foregoing, we may close, suspend or limit your access to your Account:

1.     if we determine that you have breached, or are acting in breach of, this User Agreement;

2.     if we determine that you have infringed legal rights (resulting in actual or potential claims), including infringing Intellectual Property Rights;

3.     if we determine that you have engaged, or are engaging, in fraudulent, or illegal activities;

4.     you do not respond to account verification requests;

5.     you do not complete account verification when requested within 3 months of the date of request; or

6.     for other reasons.

If we close your Account for a reason other than as a result of your breach of this User Agreement, unless as otherwise specified in this User Agreement, you will be entitled to receive any payment due from us to you.

In the event that we close your Account, you will have no claim whatsoever against us in respect of any such suspension or termination of your Account.

 

  1. Other Disputes With Users

You acknowledge and agree that in the event that a dispute arises between you and another User in relation to any Project that you will first attempt to resolve any differences that you have in relation to such Project, including in relation to the quality of the services provided.

In relation to disputes with any other users of the Website, you hereby agree to indemnify Kimochi from any and all claims, demands, and damages, actual and consequential, of every kind and nature, known and unknown, that is related to such a dispute.

 

  1. Survival and Release

This agreement supersedes any other agreement between you and the Company. If any part of this document is found to be unenforceable, that part will be limited to the minimum extent necessary so that this document will otherwise remain in full force and effect. Our failure to enforce any part of this document is not a waiver of any of our rights to later enforce that or any other part of this documents. We may assign any of our rights and obligations under this document from time to time.

If there is a dispute between participants on this site, or between users and any third party, you agree that the Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release the Company, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."

 

  1. Access and Interference

You agree that you will not use any robot, spider, scraper or other automated means to access the Website via any means, including for the avoidance of doubt access to our API or application programming interface, for any purpose without our express written permission.

Additionally, you agree that you will not:

1.     take any action that imposes or may impose (in our sole discretion, exercised reasonably) an unreasonable or disproportionately large load on our infrastructure;

2.     interfere with, damage, manipulate, disrupt, disable, modify, overburden, or impair any device, software system or network connected to or used (by you or us) in relation to the Website or your Account, or assist any other person to do any of these things, or take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;

3.     copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from the websites without the prior express written permission of Kimochi and the appropriate third party, as applicable;

4.     interfere or attempt to interfere with the proper working of the Websites, services or tools, or any activities conducted on or with the Websites, services or tools; or

5.     bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Website.

 

  1. DMCA

We have adopted a policy, in compliance with the Digital Millennium Copyright Act (“DMCA”), to enable, at our sole discretion, the expeditious removal of infringing material and the termination of repeat infringers’ accounts. If you have a good faith belief that your copyright is being infringed by any content accessible on or through the Website, please send a notice of claimed infringement, including all of the information listed below, by email to support@kimochi.co

To be effective, the notice of claimed infringement must include the following required contents:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (providing specific URLs is the best way to help us locate the content quickly);
  • Information reasonably sufficient to permit us to contact the complaining party, such as the address, telephone, fax, and/or an email address at which the complaining party may be contacted;
  • A statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
  • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please note that information provided in this legal notice may be forwarded to the person who provided the allegedly infringing content.

We reserve the right to delete or disable content alleged to be infringing, and to terminate accounts for repeat infringers. (We do this when appropriate and at our sole discretion.)

 

  1. Privacy

We use your information as described in the Kimochi Work For Hire  Privacy Policy. If you object to your information being transferred or used in this way then you must not use the Website. For the avoidance of doubt, your name and personal details shall be used for identity purposes in the normal course of conducting business in this online marketplace. This may include on invoices, on your profile pages and any other relevant pages where you conduct business.

 

  1. Indemnity

You will indemnify us (and our officers, directors, agents, subsidiaries, joint venturers and employees) against any claim or demand, including legal fees and costs, made against us by any third party due to or arising out of your breach of this Agreement, or your infringement of any law or the rights of a third party in the course of using the Website.

In addition, we can apply any funds in your Account against any liabilities you owe to us or loss suffered by us as a result of your non-performance or breach of this User Agreement.

 

  1. Security

You must immediately notify us upon becoming aware of any unauthorized access or any other security breach to the Website, your Account and do everything possible to mitigate the unauthorized access or security breach (including preserving evidence and notifying appropriate authorities). Your User Account is yours only, and you must not share your password with others. You are solely responsible for securing your password. We will not be liable for any loss or damage arising from unauthorized access of your account resulting from your failure to secure your password.

 

  1. No Warranty as to Each User's Purported Identity

We cannot and do not confirm each User's purported identity on the Website. We may provide information about a User, such as a strength or risk score, geographical location, or third party background check or verification of identity or credentials. However, such information is based solely on data that a User submits and we provide such information solely for the convenience of Users and the provision of such information is not an introduction, endorsement or recommendation by us.

 

  1. No Warranty as to Content

The Website is a dynamic time-sensitive Website. As such, information on the Website will change frequently. It is possible that some information could be considered offensive, harmful, inaccurate or misleading or mislabeled or deceptively labelled accidentally by us or accidentally or purposefully by a third party.

The Website and all content on it are provided on an 'as is', 'with all faults' and 'as available' basis and without warranties of any kind either express or implied. Without limiting the foregoing, we make no representation or warranty about:

1.     the Website or any Seller Services;

2.     the accuracy, reliability, availability, veracity, timeliness or content of the Website or any Seller Services;

3.     whether the Website or Seller Services will be up-to-date, uninterrupted, secure, error-free or non-misleading;

4.     whether defects in the Website will be corrected;

5.     whether the Website, the Seller Services or any data, content or material will be backed up or whether business continuity arrangements are in place in respect of the Website, Seller Services;

6.     any third party agreements or any guarantee of business gained by you through the Website or the Seller Services; or

7.     the Website, Seller Services or infrastructure on which they are based, being error or malicious code free, secure, confidential or performing at any particular standard or having any particular function.

To every extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose, quality, suitability and non-infringement.

 

  1. Limitation of Liability

In no event shall we, our related entities, our affiliates or staff be liable, whether in contract, warranty, tort (including negligence), or any other form of liability, for:

1.     any indirect, special, incidental or consequential damages that may be incurred by you;

2.     any loss of income, business or profits (whether direct or indirect) that may be incurred by you;

3.     any claim, damage, or loss which may be incurred by you as a result of any of your transactions involving the Website.

The limitations on our liability to you above shall apply whether or not we, our related entities, our affiliates or staff have been advised of the possibility of such losses or damages arising.

Notwithstanding the above provisions, nothing in this User Agreement is intended to limit or exclude any liability on the part of us and our affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation including those within the Competition and Consumer Act 2010 (Cth) and relevant state fair trading legislation.

 

  1. Legal Limitations

As some jurisdictions do not allow some of the exclusions or limitations as established above, some of these exclusions or limitations may not apply to you. In that event, the liability will be limited as far as legally possible under the applicable legislation. We may plead this User Agreement in bar to any claim, action, proceeding or suit brought by you, against us for any matter arising out of any transaction or otherwise in respect of this User Agreement.

You and we agree that you and we will only be permitted to bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and we agree otherwise, the arbitrator may not consolidate or join more than one person's or party's claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. In addition, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favour of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s). Any relief awarded cannot affect other Users.

 

  1. Notices

Legal notices will be served or to the email address you provide to Kimochi during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid or that the email has not been delivered. Alternatively, we may give you legal notice by mail to the address provided by you during the registration process. In such case, notice will be deemed given three days after the date of mailing.

Any notices to Kimochi must be given by registered ordinary post (or if posted to or from a place outside Luxembourg, by registered airmail).

 

  1. Law and Forum for Legal Disputes

This Agreement will be governed in all respects by the laws of the Grand Duchy of Luxembourg. We encourage you to try and resolve disputes using certified mediation (such as online dispute resolution processes). If a dispute cannot be resolved then you and Kimochi irrevocably submit to the non-exclusive jurisdiction of the courts of the Grand Duchy of Luxembourg.

 

  1. Severability

The provisions of this User Agreement are severable, and if any provision of this User Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions will be enforced. This Agreement may be assigned by us to an associated entity at any time, or to a third party without your consent in the event of a sale or other transfer of some or all of our assets. In the event of any sale or transfer you will remain bound by this User Agreement.

 

  1. Interpretation

Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

 

  1. No Waiver

Our failure to act with respect to an anticipated or actual breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Nothing in this section shall exclude or restrict your liability arising out of fraud or fraudulent misrepresentation.

 

  1. Communications

You consent to receive notices and information from us in respect of the Website by electronic communication. You may withdraw this consent at any time, but if you do so we may choose to suspend or close your Account.

 

  1. General

This Agreement contains the entire understanding and agreement between you and Kimochi. The following Sections survive any termination of this Agreement:, Release, Content, No Warranty As To Content, Limitation Of Liability, Indemnity, Bar To Action, No Class Actions, Legal Limitations, and Disputes With Us.

 

  1. Abusing Kimochi

Kimochi reserves to the greatest extent possible all rights, without limiting any other remedies, to limit, suspend or terminate our service(s) and or user account(s), suspend or ban access to the Website, remove any content, and to take any and all technical or legal steps to ban users. Without limiting the reasons for taking the aforementioned actions, conduct giving rise to this response could include:

1.     use of the Website for any illegitimate or non bona fide purpose

2.     creating problems with other users or potential legal liabilities

3.     infringing the intellectual property rights of third parties

4.     acting inconsistently with the letter or spirit of any of our policies; or

5.     abuse of any staff members including inappropriate or unreasonable communications