1. ABOUT US
1.1 Company details. KINO-MO LTD (company number 07517352) (we and us), is a company registered in England and Wales and our registered office is at 2nd Floor Soho Wharf, 1 Clink Street, London, England, SE1 9DG. Our VAT number is GB151 4023 58. We operate the website https://hypervsn.com/.
1.2 Contacting us. To contact us telephone our customer service team at +44 (0) 208-0685-328 or email firstname.lastname@example.org. How to give us formal notice of any matter under the Contract is set out in Clause 13.2.
2. OUR CONTRACT WITH YOU
2.1 Our contract. These terms and conditions (Terms) apply to the order by you and supply of goods and services by us to you ( Contract). They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Entire agreement. The Contract, together with all documents referred to in it, is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.3 Language. These Terms and the Contract are made only in the English language.
2.4 Your copy. You should print a copy of these Terms or save them to your computer for future reference.
3. PLACING AN ORDER AND ITS ACCEPTANCE
3.1 Placing your order. Please follow the onscreen prompts to place an order. You may only submit an order using the method set out on the site. Each order is an offer by you to buy the goods (Goods) or the services ( Services) (collectively, Products) specified in the order subject to these Terms.
3.2 Correcting input errors. Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate.
3.3 Acknowledging receipt of your order. After you place an order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in Clause 3.4.
3.4 Accepting your order. Our acceptance of your order takes place when we send the email to you to accept it (Order Confirmation), at which point and on which date (Commencement Date) the Contract between you and us will come into existence. The Contract will relate only to those Goods and Services confirmed in the Order Confirmation.
3.5 If we cannot accept your order. If we are unable to supply you with the Products for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the Products, we will refund you the full amount including any delivery costs charged as soon as possible.
4. OUR PRODUCTS
4.1 The Goods may vary slightly from their pictures on our site.
4.2 The packaging of your Goods may vary from that shown on images on our site.
4.3 Compliance with specification. Subject to our right to amend the specification (see Clause 4.4) we will supply the Products to you in accordance with the specification for the Products appearing on our website at the date of your order in all material respects.
4.4 Changes to specification. We reserve the right to amend the specification of the Products if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Products, and we will notify you in advance of any such event.
4.5 Installation and operation manuals. You acknowledge, that, if improperly used, the Goods may be dangerous. You further acknowledge that you must receive and examine the up-to-date installation and operation manuals and other information to ensure the safe operation of the Goods or contact us to obtain such materials.
4.6 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill, substantially in accordance with the document(s) made available to you by us online or otherwise, which set(s) out the description of the Services and the user instructions for the Services as amended by us from time to time (Documentation). In particular, we do not warrant that use of the Services will be uninterrupted or error-free.
5. YOUR OBLIGATIONS
5.1 It is your responsibility to ensure that:
a. the terms of your order are complete and accurate;
b. you co-operate with us in all matters relating to the Products;
c. you provide us with such information we may reasonably require in order to supply the Products, and ensure that such information is complete and accurate in all material respects;
d. you obtain and maintain all necessary licences, permissions and consents which may be required for the Products in your country;
e. you and your employees use the Goods for internal purposes of your business, and you further agree not to use the Goods for any resale or rental purposes;
f. you comply with all applicable laws, including health and safety laws.
5.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in Clause 5.1 ( Your Default):
a. we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the contract under Clause 15 (Termination);
b. we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
c. it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
6. PRICE OF GOODS AND DELIVERY CHARGES . CHARGES FOR SERVICES
6.1 The prices of the Goods will be as quoted on our site at the time you submit your order. We take all reasonable care to ensure that the prices of Goods are correct at the time when the relevant information was entered onto the system. However, please see Clause 6.11 for what happens if we discover an error in the price of the Goods you ordered.
6.2 Prices for our Goods may change from time to time, but changes will not affect any order you have already placed.
6.3 The price of Goods excludes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Goods in full before the change in VAT takes effect.
6.4 The price of the Goods does not include delivery charges. Our delivery charges are as advised to you during the check-out process, before you confirm your order.
6.5 In consideration of us providing the Services you must pay our charges ( Charges) in accordance with this Clause 6.
6.6 The Charges are the prices quoted on our site at the time you submit your order.
6.7 If you wish to change the scope of the Services after we accept your order, and we agree to such change, we will modify the Charges accordingly.
6.8 We take all reasonable care to ensure that the prices stated for the Services are correct at the time when the relevant information was entered into the system. However, please see Clause 6.11 for what happens if we discover an error in the price of the Services you ordered.
6.9 Our Charges may change from time to time, but changes will not affect any order you have already placed.
6.10 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
6.11 It is possible that, despite our reasonable efforts, some of the Products on our site may be incorrectly priced. If we discover an error in the price of the Products you have ordered we will contact you to inform you of this error and we will give you the option of continuing to purchase the Products at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. If we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Products and refund you any sums you have paid.
7. HOW TO PAY
7.1 You can only pay for Goods and Services using a debit card or credit card. We accept the following cards: Visa, Mastercard, american express, Discover, JSB, UnionPay
7.2 Payment for the Services, the Goods and all applicable delivery charges is in advance. We will charge your debit card or credit card upon acceptance of your order.
8. DELIVERY, TRANSFER OF RISK AND TITLE
8.1 We shall dispatch the Goods purchased by you via international air freight & courier company to the address for delivery you specify in your order. Occasionally our delivery to you may be affected by a Force Majeure Event. See Clause 12 (Force Majeure Event) for our responsibilities when this happens.
8.2 Delivery is complete once the Goods have been unloaded at the address for delivery set out in your order and the Goods will be at your risk from that time.
8.3 You own the Goods once we have received payment in full, including of all applicable delivery charges.
8.4 If we fail to deliver the Goods, our liability is limited to the refund of the amount received from you as payment for the Goods. However, we will not be liable to the extent that any failure to deliver was caused by a Force Majeure Event, or because you failed to provide adequate delivery instructions or any other instructions that are relevant to the supply of goods.
8.5 If you fail to take delivery within 5 days after the day on which our carrier attempted to deliver the Goods or you were notified that the Goods were ready for pickup, we may resell part of, or all the Goods and after deducting any reasonable delivery, storage and selling costs, account to you for any excess over the price of the Goods or charge you for any shortfall below the price of the Goods.
8.6 If you order the Goods from our site for delivery to a destination outside the UK, your order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and we cannot predict their amount. You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your order.
8.7 You must comply with all applicable laws and regulations of the country for which the Goods are destined. We will not be liable or responsible if you break any such law.
9. OUR WARRANTY FOR THE GOODS
9.1 We provide a warranty that on delivery and for a period of 12 months from delivery, the Goods shall:
a. subject to Clause 4, conform in all material respects with their description;
b. be free from material defects in design, material and workmanship; and
c. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
9.2 Subject to Clause 9.3, if:
a. you give us notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Clause 9.1;
b. we are given a reasonable opportunity of examining the Goods; and
c. if we ask you to do so, you return the Goods to us at your cost,
we will, at our option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
9.3 We will not be liable for breach of the warranty set out in Clause 9.1 if:
a. you make any further use of the Goods after giving notice to us under Clause 9.2;
b. you alter or repair the Goods without our written consent except for components (rotor, stator, rays) replacement in accordance with instructions received from us;
c. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
d. the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
e. the defect arises because you failed to follow our instructions as to the storage, commissioning, transport, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same.
9.4 We will only be liable to you for the Goods’ failure to comply with the warranty set out in Clause 9.1 to the extent set out in this Clause 9.
9.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.6 These Terms also apply to any repaired or replacement Goods supplied by us to you.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All intellectual property rights in or arising out of or in connection with the Products are owned by us or our licensors.
10.2 We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the software operating the Goods, the online software applications provided by us as part of the Services. You may not sub-license, assign or otherwise transfer the rights granted in this Clause 10.2.
10.3 The licence referred to in Clause 10.2 is royalty-free provided you comply with the requirement to use the Goods for internal purposes of your business. Contact us for details of the licence terms if you wish to use the Goods for resale or rental purposes.
11. OUR LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
11.1 Nothing in these Terms limits or excludes our liability for:
a. death or personal injury caused by our negligence;
b. fraud or fraudulent misrepresentation;
c. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession), section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
d. any other liability that cannot be limited or excluded by law.
11.2 Subject to Clause 11.1, we will under no circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
a. any loss of profits, sales, business, or revenue; or
b. loss or corruption of data, information or software; or
c. loss of business opportunity; or
d. loss of anticipated savings; or
e. loss of or damage to goodwill; or
f. any indirect or consequential loss.
11.3 Subject to Clause 11.1, our total liability to you for all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the amount paid by you to us for the Products purchased under the Contract.
11.4 We have given commitments as to compliance of the Services with the relevant specification in Clause 4.3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
11.5 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of you having grounds to make a claim in respect of the event and shall expire 2 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11.6 This Clause 11 will survive termination of the Contract.
11.7 Except as expressly stated in these Terms, we do not give any representations, warranties or undertakings in relation to the Products. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Products are suitable for your purposes.
11.8 You hereby release us from any liability associated with the use of the Goods that can result in a physical injury or property damage due to your negligence.
12. FORCE – MAJEURE EVENT
12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control ( Force Majeure Event).
12.2 If a Force Majeure Event takes place that affects the performance of our obligations under the Contract:
a. we will contact you as soon as reasonably possible to notify you; and
b. our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Force Majeure Event. Where the Force Majeure Event affects our delivery of Goods to you, we will arrange a new delivery date with you after the Force Majeure Event is over.
12.3 You may cancel the Contract affected by a Force Majeure Event which has continued for more than 30 days. To cancel please contact us. If you opt to cancel, you will have to return (at our cost) any relevant Goods you have already received and we will refund the price you have paid, including any delivery charges.
13. COMMUNICATIONS BETWEEN US
13.1 When we refer to “in writing” in these Terms, this includes email.
13.2 Any notice or other communication given under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
13.3 A notice or other communication is deemed to have been received:
a. if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
b. if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
c. if sent by email, at 9.00 am the next working day after transmission.
13.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
13.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14. HOW WE MAY USE YOUR PERSONAL INFORMATION
14.1 We will use any personal information you provide to us to:
a. provide the Products;
b. process your payment for the Products; and
c. inform you about similar products that we provide, but you may stop receiving these at any time by contacting us.
14.2 Further details of how we will process personal information are set out in our Privacy Notice.
15.1 Without limiting any of our other rights, we may suspend the supply or delivery of the Goods to you, the performance of the Services or terminate the Contract with immediate effect by giving written notice to you if:
a. you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 30 days of you being notified in writing to do so;
b. you fail to pay any amount due under the Contract on the due date for payment;
c. you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
d. you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
e. your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
15.2 Termination of the Contract shall not affect your or our rights and remedies that have accrued as at termination.
15.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
16.1 ASSIGNMENT AND TRANSFER.
a. We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing or by posting on this webpage if this happens.
b. You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
16.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
16.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
16.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
16.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
16.6 Governing law and jurisdiction. This Contract is governed by English law and each party irrevocably agrees to submit all disputes arising out of or in connection with this Contract to the exclusive jurisdiction of the English courts.
TERMS AND CONDITIONS REGARDING USE OF KINO-MO’S CLOUD CONTENT MANAGEMENT SYSTEM
(“Cloud CMS Use Terms”)
This document governs the use of Kino-mo’s Cloud Content Management System (“Cloud CMS”), access to which is granted to you by Kino-mo or its authorized partner. Your right to use the Cloud CMS is subject to your understanding of, compliance with, and consent to the following terms and conditions, which may not be varied, altered, or amended by you or Kino-mo’s partner.
Documentation means the document made available to you by Kino-mo online or otherwise, which set(s) out the description of the Services and the user instructions for the Services as amended by Kino-mo from time to time.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, viruses, worms, time bombs, and Trojan horses.
“Products” means products manufactured by Kino-mo and purchased by You.
“Services” means services made available by Kino-mo via its online Cloud CMS, including its further modifications and upgrades.
“Your Content” means any video, pictures, graphics, text or other content provided to Kino-mo by You through the Services.
2. Intellectual Property Rights
2.1. All title and intellectual property rights in and to the Services and Cloud CMS (and the constituent elements thereof) are owned by Kino-mo or its licensors. Kino-mo’s rights are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your access to Cloud CMS or use of its Services does not transfer any ownership or any intellectual property rights to You.
2.2. Feedback. If You elect to provide Exclusive Distributor and/or Kino-mo with any suggestions, comments, improvements, ideas or other feedback or materials to Exclusive Distributor and/or Kino-mo related to the Products or/and Services (collectively, “Feedback”), You assign and agree to assign all right, title and interest (including intellectual property rights) in and to such Feedback to Kino-mo, without any compensation or other duty to account to You. You will take such actions as Kino-mo may reasonably request from time to time (including execution of affidavits and other documents) to effect, perfect or confirm Kino-mo’s ownership rights as set forth in this Agreement.
2.3. Third Party Beneficiary. You acknowledge that Kino-mo has a substantial interest in the Products and the Services and that Kino-mo is a third party beneficiary to Your End User Agreement with Exclusive Distributor. As such, Kino-mo has full right to bring any action against You, including injunctive action, to enforce the terms of Your End User Agreement.
3. Your Obligations
3.1. You must ensure that your use of the Services, the Documentation and Your Content complies with applicable laws, statutes, regulations or rules promulgated by governing authorities having jurisdiction.
3.2. You agree to be responsible to Kino-mo for Your data and use of the Services by Your employees.
3.3. You shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and promptly notify Kino-mo of any unauthorized access or use of the Services.
3.4. You agree that your use of Services shall not be Commercial Use. For the purposes of these Cloud CMS Use Terms, Commercial Use is defined as generating revenue by (i) leasing Products or Services repeatedly, or (ii) making them otherwise repeatedly available to other parties for any term. Commercial use of Services is subject to purchasing the event licence from Kino-mo. Details of the event licence terms are available from Kino-mo on request.
3.5. Restrictions on Use.
You shall not, and shall not permit any of Your employees or contractors acting on Your behalf to, :
a) use any Products or/and Services in a manner that is inconsistent with these Cloud CMS Use Terms;
b) use the Services to store, transmit or display Your Content for fraudulent purposes;
c) modify, adapt, translate, copy, decompile, disassemble, or reverse engineer any portion of the underlying software to any Products or Cloud CMS;
d) submit, post or make available false, incomplete or misleading information to any Services;
e) violate the rights of any other party or infringe upon any intellectual property rights of a party;
f) sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Services;
g) make the Services available to, or use the Services for the benefit of, any third party;
h) use the Services to store, transmit or display Malicious Code;
i) interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein;
j) attempt to gain unauthorized access to any of Kino-mo’s systems or networks;
k) copy the Services or any part, feature, function, or user interface thereof;
l) access the Services or use the Documentation to develop a competitive product or service.
3.6. Contact by Kino-mo. You may be contacted by Kino-mo to establish and maintain contact in order to address Service Notices or other critical issues related to your use of Cloud CMS or impacting Kino-mo’s network, including violations of these CMS Use Terms.
4. Suspension of Services
4.1. Suspension of Services. In the event that Kino-mo believes in good faith that it is necessary to suspend all or any portion of the Services in order to: a) protect Your data or Your use of the Services from disruption or harm (e.g. virus, unauthorized access by a third party), or b) protect the data of, or use of the Services by other Kino-mo or Exclusive Distributor customers from disruption or harm (e.g. virus, unauthorized access by a third party), Kino-mo may suspend all or any portion of the Services in such situation in its sole discretion, and will use commercially reasonable efforts to notify You before such suspension occurs. In the event such prior notice by Kino-mo to You of the suspension of the Services is not commercially feasible, then Kino-mo shall notify You of any such suspension as soon as is commercially practicable. Kino-mo shall use all commercially reasonable efforts to mitigate the time the Services are suspended. Notwithstanding anything to the contrary herein, You shall not be entitled to any refund or credit due to a good faith suspension of the Services pursuant to this Section. Notice of suspension of the Services provided pursuant to this Section, may be provided by posting Kino-mo’s Cloud CMS,.
4.2. Suspension of Services due to violation of Your obligations. If Kino-mo becomes aware that You may be in violation of the obligations under Section 3 above and fail to comply with Service Notice sent by Kino-mo requiring action to remedy the breach, Kino-mo may suspend Your access to the Services until the required action is taken. If You fail to take the required action within ten (10) days, Kino-mo may terminate or suspend Your account immediately for cause. You agree that all limitations of access, suspensions, and terminations for cause shall be made in Kino-mo’s sole discretion and Kino-mo shall not be liable to You or any third party for any termination of Your account or access to the Services.
5. No Warranties
a. does not warrant that the use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by You through the Services will meet Your requirements; and
b. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.2. You acknowledge that the Services made available by Kino-mo are provided as-is.
5.3. EXCEPT FOR ANY WARRANTY THAT MAY BE OFFERED BY EXCLUSIVE DISTRIBUTOR, THE SERVICES ARE PROVIDED “AS IS” AND KINO-MO MAKES NO WARRANTIES TO YOU, OR ANY PERSON OR ENTITY WITH RESPECT TO THE SERVICES AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
You shall defend, indemnify and hold harmless Kino-mo against any action brought by a third party to the extent that the action is based upon a claim that any data; video, graphic and audio content uploaded by you or available, because of Your activities, at Kino-mo’s Cloud CMS infringe any copyrights or patents or misappropriate any trade secrets, or a claim that is otherwise related to Your Content or the use of the Services.
7. Limitation of Liabilities
IN NO EVENT SHALL KINO-MO BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SERVICES. NOTWITHSTANDING ANYTHING IN THE END USER AGREEMENT TO THE CONTRARY, THE TOTAL LIABILITY OF KINO-MO TO END USER, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY EXCLUSIVE DISTRIBUTOR TO KINO-MO WITH RESPECT TO THE SERVICES PROVIDED TO SUCH END USER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH THE FIRST CLAIM AROSE. KINO-MO SHALL NOT BE LIABLE FOR LOSS OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, REGARDLESS OF LEGAL THEORY, EVEN IF KINO-MO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF THIS SECTION ARE ESSENTIAL AND THAT KINO-MO WOULD NOT PERMIT YOU TO USE THE SERVICES ABSENT THE TERMS OF THIS SECTION. THIS SECTION SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THE END USER AGREEMENT SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8. Amendment of These Cloud CMS Use Terms
These Cloud CMS Use Terms may be amended by Kino-mo unilaterally from time to time. As a registered End User, you shall be given advance notice of such amendments and the date when they shall become effective via Your account at the Cloud CMS. Your use of the Services after such date shall constitute conclusive evidence of your agreement to the amendments concerned.