These terms and conditions of service (collectively, the “Terms of Service” or “Agreement”) govern your use of the Website and the services, features, content or applications operated by KFish Creative LLC (formerly Density Apps LLC) (together with the Website, the “Services”), and provided to the Subscriber (the “Subscriber”, “user”, “sub-user”, “you” or “your”).
Please read these Terms of Service carefully before using the Services. These Terms of Service apply to all users of the Services. If you are using the Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms of Service and you agree to be bound by these Terms of Service on behalf of such organization. Agreeing to use the Services by completing any process which results in your acquisition of the Services, including entering into any contract agreement in which the Services are attached, constitutes your acceptance and agreement to be bound by these Terms of Service, and all other operating rules, policies and procedures that may be published from time to time on the Website by us, each of which is incorporated by reference and each of which may be modified from time to time without notice to you.
These Terms of Service provide that all disputes between you and KFish Creative LLC will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
KFish Creative LLC reserves the right, at any time and from time to time, to amend or to modify these Terms of Service without prior notice to you, provided that if any such alterations constitute a material change to these Terms of Service, KFish Creative LLC will notify you by posting an announcement on the Website. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, you agree to be bound by such amended or modified Terms of Service. For this reason, we encourage you to review the Terms of Service whenever you use the Services. If you do not agree to any change to these Terms of Services, then you must immediately stop using the Services.
1.1 As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services and the activity of any sub-user that uses your password or Account.
1.2 You agree that you will not transmit, distribute, post, store, link, or otherwise traffic in Content, information, software, or materials on or through the Service that (i) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, offensive, profane, contains or depicts pornography that is unlawful, or is otherwise inappropriate as determined by us in our sole discretion, (ii) you know is false, misleading, untruthful or inaccurate, (iii) constitutes unauthorized or unsolicited advertising, (iv) impersonates any person or entity, including any of our employees or representatives, or (v) includes anyone’s identification documents or sensitive financial information. KFish Creative LLC may permit, in its sole discretion, adult websites that abide by state and federal law and regulation.
1.3 You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website; (vi) harvest or scrape any Content from the Services; (vii) use the Services for high risk activities including but not limited to the operation of nuclear facilities, air traffic control, life support systems, or any other use where the failure of service could lead to death, personal injury, or environmental damage; or (viii) otherwise take any action in violation of our guidelines and policies.
1.4 You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
1.5 We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
1.6 You may not use the Services to obtain information about or make decisions about anyone but yourself. You are solely responsible for any reliance by you on the Services or other use you make of the Services. Comments, suggestions or materials sent or transmitted to KFish Creative LLC (collectively “Feedback”), shall be deemed to be non-confidential. KFish Creative LLC shall have no obligation of any kind with respect to such Feedback and shall be free to use and distribute the Feedback to others without limitation, including, but not limited to developing and marketing products incorporating such Feedback. KFish Creative LLC reserves the right to publish or use any responses, questions or comments emailed to KFish Creative LLC for promotional or other purposes without any further permission, notice or payment of any kind to the sender. All such submissions will be the property of KFish Creative LLC.
1.7 The enumeration of violations in this Section 1 of these Terms of Service is not meant to be exclusive, and KFish Creative LLC provides notice hereby that it has and will exercise its authority to take whatever action is necessary to protect the Services, Subscribers, and third parties from acts that would be inimical to the purposes of this Section 1 of these Terms of Service.
Lawful Use of the Network
1.8 In using the Services, Subscribers must comply with, and refrain from violations of, any right of any other person, entity, law, or contractual duty, including without limitation the laws of the United States and the laws of Pennsylvania, and including without limitation those laws forbidding: (a) distribution of child pornography, (b) forgery, identity theft, misdirection or interference with electronic communications, (c) invasion of privacy, (d) unlawful sending of commercial electronic messages or other marketing or electronic communications, (e) collection of excessive user data from children, or other improper data collection activities, (f) securities violations, wire fraud, money laundering, or terrorist activities, or (f) false advertising, propagating or profiting from frauds and unfair schemes. Subscribers will also comply with the affirmative requirements of law governing use of the Services, including but not limited to: (i) disclosure requirements, including those regarding notification of security breaches, (ii) records maintenance for regulated industries, and (iii) financial institution safeguards.
The Services are subject to the trade and economic sanctions maintained by the Office of Foreign Assets Control (“OFAC”). By accessing the Services, you agree to comply with these laws and regulations. Specifically, you represent and warrant that you are not (a) located in any country that is subject to OFAC’s trade and economic sanctions, currently Cuba, Iran, North Korea, Syria, and the Crimea region of the Ukraine, or (b) an individual or entity included on any U.S. lists of prohibited parties including: the Treasury Department’s List of Specially Designated Nationals List (“SDN List”) and Sectoral Sanctions List (“SSI List”). Additionally, you agree not to – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any service received from KFish Creative LLC in contradiction with these laws and regulations. Failure to comply with these laws and regulations may result in the suspension or termination of your Account.
Agreed Use of Allotted Network Resources
1.9 Subscribers shall not use any method to circumvent the provisions of these Terms of Service, or to obtain Services in excess of those for which they contract with KFish Creative LLC. Subscribers shall use only those IP addresses that are assigned to them by KFish Creative LLC, and shall not use any IP addresses outside of their assigned range. Subscribers shall not use any mechanism to exceed the amount of resources assigned to them through the Services, or to conceal such activities.
Injurious Code
1.10 Subscribers may not use the Services to distribute, receive communications or data gleaned from, or execute any action directed by any type of injurious code, including but not limited to: (i) trojans, (ii) key loggers, (iii) viruses, (iv) malware, (v) botnets, (vi) denial of service attacks, (vii) flood or mail bombs, (viii) logic bombs, or (ix) other actions which KFish Creative LLC reserves the sole right to determine to be malicious in intent.
Email Violations
1.11 Subscribers shall not send bulk email utilizing their resources on the Services unless they maintain a double-authorized list of subscribed members including IP addresses and relevant contact information, along with following guidelines for including removal links with all sent emails according to the such legislation. Subscribers shall comply with all laws regarding the sending of commercial electronic messages or other marketing or electronic communications. Subscribers are forbidden from taking any action that would result in their IP addresses, or any IP address associated with KFish Creative LLC or other Subscribers, being placed on the Spamhaus.org blacklist. KFish Creative LLC reserves the sole and absolute right to determine whether an email violation has occurred.
Invasion of Privacy, Defamation, or Harassment
1.12 Subscribers may not use the Services in a manner that would violate the lawful privacy rights of any person, or to publish or republish defamatory or libelous statements, or to harass or embarrass, which shall be determined in KFish Creative LLC’s sole and absolute discretion.
Violation of Copyright, Trademark, Patent or Trade Secret
1.13 Subscribers may not use the Services in violation of the copyrights, trademarks, patents or trade secrets of third parties, nor shall they utilize the Services to publish such materials in a manner that would expose them to public view in violation of the law. The provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”) (as required under 17 U.S.C. §512) and all other applicable international trademark, copyright, patent or other intellectual property laws will apply to issues presented by allegations of copyright violations by third parties. KFish Creative LLC will, in appropriate circumstances, terminate the accounts of repeat violators. If a third party believes that a Subscriber of KFish Creative LLC is violating its intellectual property rights, it should notify us by email at dmca@kfishcreative.com. A notification should include information reasonably sufficient to permit KFish Creative LLC to locate the allegedly infringing material, such as the IP address or URL of the specific online location where the alleged infringement is occurring.
Export
1.14 Subscriber shall comply with all applicable export and import control laws and regulations in its use of the Services, and, in particular, Subscriber shall not utilize the Services to export or re-export data or software without all required United States and foreign government licenses. Subscriber assumes full legal responsibility for any access and use of the Services from outside the United States, with full understanding that the same may constitute export of technology and technical data that may implicate export regulations and/or require export license. Should such a license be required, it shall be Subscriber’s responsibility to obtain the same, at Subscriber’s sole cost and expense, and in the event of any breach of this duty resulting in legal claims against KFish Creative LLC, Subscriber shall defend, indemnify and hold KFish Creative LLC harmless from all claims and damages arising therefrom.
Acts of Sub-Users
1.15 Subscribers are responsible for the acts of others utilizing their access to the Services, and will be held responsible for violations of the Services by their sub-users or persons who gain access to the Services using the Subscriber’s access. Any activity that a Subscriber is prohibited from performing by these Terms of Services is equally prohibited to anyone using the access to the Services of the Subscriber.
Access Code Protection
1.16 Subscribers shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information.
Notification Regarding these Terms of Service
1.17 Subscribers shall notify all persons who receive access to the Services of the provisions of these Terms of Service, and shall inform them that the terms of these Terms of Service are binding upon them.
Remedial Action
1.18 Subscribers shall notify KFish Creative LLC if and when they learn of any security breaches regarding the Services, and shall aid in any investigation or legal action that is taken by authorities and/or KFish Creative LLC to cure the security breach.
2.1 IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF KFISH CREATIVE LLC HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. SUBSCRIBER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT KFISH CREATIVE LLC WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. SUBSCRIBER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST KFISH CREATIVE LLC ARISING OUT OF SUBSCRIBER’S PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF KFISH CREATIVE LLC’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES.
IN ADDITION, YOU AGREE THAT KFISH CREATIVE LLC IS NOT RESPONSIBLE FOR ANY DATA COMPILED BY OUR SERVICES AND THAT KFISH CREATIVE LLC WILL NOT BE LIABLE, IN ANY MANNER, AS A RESULT OF YOUR EXPOSURE TO ANY DEFAMATORY, LIBELOUS, THREATENING, UNLAWFULLY HARASSING, OBSCENE OR OTHERWISE UNLAWFUL CONTENT OR DATA. IN NO EVENT SHALL KFISH CREATIVE LLC, OR ANY THIRD PARTY PROVIDER OF ANY COMPONENT OF THE SERVICES OR OF ANY INFORMATION DELIVERED AS PART OF THE SERVICES, BE LIABLE TO YOU AND/OR ANY PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES, CONTENT, PRODUCTS, THE USE OR INABILITY TO USE THIS WEBSITE, OR ANY LINKED WEBSITE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSSES, LOSS OF PROGRAMS OR OTHER DATA, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF KFISH CREATIVE LLC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LIABILITY ASSOCIATED WITH ANY VIRUSES WHICH MAY INFECT YOUR COMPUTER EQUIPMENT.
SOME JURISDICTIONS LIMIT OR PROHIBIT THE FOREGOING LIMITATIONS, AND IN SUCH JURISDICTIONS THE FOREGOING LIMITATIONS SHALL BE APPLIED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
3.1 Subscriber shall keep confidential any confidential information to which it is given access, and shall cooperate with KFish Creative LLC’s efforts to maintain the confidentiality thereof. Subscriber shall not publish to third parties or distribute information or documentation that KFish Creative LLC provides for purposes of operating and maintaining its systems, including material contained in estimates, invoices, work orders, or other such materials.
4.1 Subscriber is solely responsible for the preservation of Subscriber’s data which Subscriber saves onto its virtual server (the “Data”). EVEN WITH RESPECT TO DATA AS TO WHICH SUBSCRIBER CONTRACTS FOR BACKUP SERVICES PROVIDED BY KFISH CREATIVE LLC, TO THE EXTENT PERMITTED BY APPLICABLE LAW, KFISH CREATIVE LLC SHALL HAVE NO RESPONSIBILITY TO PRESERVE DATA. KFISH CREATIVE LLC SHALL HAVE NO LIABILITY FOR ANY DATA THAT MAY BE LOST, OR UNRECOVERABLE, BY REASON OF SUBSCRIBER’S FAILURE TO BACKUP ITS DATA OR FOR ANY OTHER REASON.
5.1 Each Subscriber is permitted to state publicly that such Subscriber is a Subscriber of the Services. Each Subscriber agrees that KFish Creative LLC may include such Subscriber’s name and trademarks in a list of KFish Creative LLC Subscriber, online or in promotional materials. Each Subscriber also agrees that KFish Creative LLC may publicly, verbally or in writing reference such Subscriber as a Subscriber of the Services.
6.1 YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS US, OUR AFFILIATES, PARENTS, SUBSIDIARIES, ANY RELATED COMPANIES, LICENSORS AND PARTNERS, AND EACH OF OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, DIRECTORS, SUPPLIERS AND REPRESENTATIVES FROM ALL LIABILITIES, CLAIMS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, THAT ARISE FROM OR RELATE TO YOUR (OR ANY THIRD PARTY USING YOUR ACCOUNT OR IDENTITY IN THE SERVICES) USE OR MISUSE OF, OR ACCESS TO, THE SERVICES, CONTENT, OR OTHERWISE FROM YOUR USER CONTENT, VIOLATION OF THESE TERMS OF SERVICE OR OF ANY LAW, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL ASSIST AND COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
7.1 KFish Creative LLC reserves the right, in our sole discretion, to terminate your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of these Terms of Service or any law, or if you misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination may result in the forfeiture and destruction of information associated with your Account. KFish Creative LLC may provide prior notice of the intent to terminate Services to you if such notice will not, in KFish Creative LLC’s discretion, run counter to the intents and purposes of these Terms of Service. Except as otherwise set forth hereunder, any and all fees paid hereunder are non-refundable and any and all fees owed to KFish Creative LLC before such termination shall be immediately due and payable, including any liabilities that may have been incurred prior to termination such as KFish Creative LLC’s costs for collection (including attorneys’ fees) of any such charges or other liabilities. Upon termination, any and all rights granted to Subscriber by this Agreement will immediately be terminated, and Subscriber shall promptly discontinue all use of the Services. If you wish to terminate your Account, you may do so by following the instructions on the Website or through the Services. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
8.1 Mindful of the high cost of litigation, you and KFish Creative LLC agree to the following dispute resolution procedure: in the event of any controversy, claim, action or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Services; (iv) the breach, enforcement, interpretation, or validity of this Agreement; or (v) any other dispute between you and KFish Creative LLC (“Dispute”), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent (1) if to KFish Creative LLC at: 435 Wyoming Avenue #1812 Kingston, PA 18704 or (2) if to you at: your last-used billing address or the billing and/or shipping address in your Account information. Both you and KFish Creative LLC agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any arbitration or filing any claim against the other party.