These terms constitute an agreement (the “Agreement”) between You and Kivuto Solutions Inc. (“Kivuto”) and its direct and indirect affiliates, in connection with Your use of the Website or the Kivuto Products (both as defined in section 1). Access or use of the Website and/or Kivuto Products, as applicable, for which You seek registration constitutes acceptance of this Agreement. If You do not agree to abide by the terms and conditions of this Agreement, please do not register for or otherwise access or use this Website or the Kivuto Products.
Kivuto may change any of the terms in this Agreement at any time and changes will become effective upon posting. If You do not wish to accept the changes to the terms of this Agreement, You may cancel Your access to the Website or Kivuto Products, as described below in Section 10.2. Continued use of the Website and/or the Kivuto Products accessed through Your Kivuto Account constitutes Your acceptance of the terms of the modified Agreement.
You must be 13 years of age or older to download any product, including Kivuto Products, from the Website. While individuals under the age of 13 may use any product, including Kivuto Products, they may do so only with the involvement, supervision, and approval of their parent or legal guardian or at the direction of their school instructors and administrators.
If You are entering into this Agreement on Your own behalf, You hereby represent and warrant that You have reached the age of majority in Your jurisdiction and You otherwise have the legal capacity to agree to this Agreement. If You have not reached the age of majority in Your jurisdiction, Your parent or legal guardian represents and warrants that he or she agrees to this Agreement on Your behalf.
1. The Website and Kivuto Products
Kivuto offers websites, software applications and services available through the Internet that require end-user registration. This Agreement will refer to digital assets and products offered in connection with Kivuto website properties, collectively as the “Website”, and to software applications and/or other services, collectively as the “Kivuto Products”. In the event of a conflict between the terms and conditions of this Agreement and other terms and conditions that apply to another Kivuto Website or integrated partner Website, or to the Kivuto Products, those other terms and conditions shall prevail with respect to such conflict and only to Websites or Kivuto Products, as applicable, governed by such other terms or conditions.
2. Ownership of the Information, Materials and Software of the Website, and of the Kivuto Product
You expressly acknowledge and agree that: (a) the Website and Kivuto Products contain information, text, software applications, photos, video, graphics, music, sounds and other material (the “Materials”) that are protected by copyrights, trademarks, trade secrets, patents or other proprietary rights (“Intellectual Property Rights”); (b) all right, title and interest in and to these Materials and Intellectual Property Rights belong solely and exclusively to Kivuto, its licensors, and all their authors and licensors; and (c) these Intellectual Property Rights are valid and protected in all forms, media and technologies existing now or developed later.
The Software that forms part of the Materials or the Intellectual Property Rights may contain code, commonly referred to as open source software, which is distributed under any of the many known variations of open source license terms, including terms which allow the free distribution and modification of the relevant software’s source code and/or which require all distributors to make such source code freely available upon request, including any contributions or modifications made by such distributor (collectively, "Open Source Software"). Please note that, to the extent that any Software that forms part of the Materials or Intellectual Property Rights contains any Open Source Software, that element only is licensed to You under the relevant license terms of the applicable third party licensor ("Open Source License Terms") and not under the terms of this Agreement, and You accept and agree to be bound by such Open Source License Terms.
3. Use of the Information and Materials of the Website and of the Kivuto Products
3.1. Limited End-User License. Kivuto grants a limited license to all users of the Website or of the Kivuto Products, as applicable, that is non-exclusive, non-transferable, individual, personal, royalty-free, non-commercial, and non-promotional and may not be sublicensed. Such license is granted to You for the sole purpose of allowing You to access or use the Website or the Kivuto Products, as applicable, for which You seek registration, and solely in accordance with the terms of this Agreement. Website or Kivuto Product licensees, as applicable, may use, display, and, where such functions are available, mark up, download, and print Materials obtained through the Website or through access to the Kivuto Products, solely for their own personal, non-commercial, educational purposes. These rights are governed by: (a) copyright law; and (b) Kivuto’s licensors’ terms and conditions governing the Materials. Login Credentials (username and password) may not be shared with others or otherwise disclosed to unauthorized Third-Parties for any purpose whatsoever.
You agree not to copy, modify, reverse engineer, or extract the software source code, as applicable, from the Website or the Kivuto Products.
3.2. Permitted Uses of Materials. You may, on an occasional and irregular basis, include insubstantial portions of Materials from the Website in memoranda, reports and presentations, and then only to the extent that such use is for educational purposes and of a non-commercial nature, does not otherwise diminish the pedagogical or commercial value of the Materials, and is otherwise permissible as “fair use”, “fair dealing” or its equivalent under applicable copyright and intellectual property law. In each such instance, You must include proximate to any excerpted Materials all copyright, trademark and other notices from the Website (whether or not included in the particular Materials used), and appropriate source attribution to Kivuto and its licensors.
3.3. Prohibited Uses of Materials. Except as You may be expressly permitted by this Agreement under Section 3.2 above or pursuant to express written permission obtained from Kivuto, You may not use, modify, adapt, reformat, download, upload, post, reproduce, broadcast, publish, display, perform, transfer or redistribute any Materials in any form, format or media or by means of any technology without obtaining the prior written authorization of Kivuto and any other owner of the Intellectual Property Rights in such Materials.
3.3.1 You may not reproduce, use, sell, transmit, share, publish, broadcast, or otherwise disseminate or distribute Materials from the Website or the Kivuto Products to ineligible parties, including but not limited to others in the same company, school, college or other organization, whether or not for a charge or other consideration, including but not limited to, use in or with “course packets” or with courses which do not include the Website part of the curriculum.
3.3.2 You may not post Materials from the Website or the Kivuto Products, nor answers to any homework or test questions provided by the Website to ineligible parties, including, but not limited to, newsgroups, mail lists, electronic bulletin boards, homework sites, content aggregators, file storage services or any other on-line destination.
3.3.3 You may not reproduce any illustrations, charts, photographs, outlines, extensive text excerpts, chapters, or e-books included in Materials for any use outside of the class with which the Website is being used.
3.3.4 You may not re-sell, rent, host on-line, or otherwise distribute Materials to others, including but not limited to, their use by multiple concurrent users.
3.4. Permissions. If You wish to request permission to reproduce Materials from the Website or the Kivuto Products for other than the specifically authorized educational purpose, or if You have any questions about the proper way to include any notices required under Section 3.2, use the information available at www.kivuto.com to contact the appropriate Kivuto representative. Use of content used under license by Kivuto may require the permission of Kivuto’s licensor. Your use of any Materials by permission must include proximate to the excerpted Materials all copyright, trademark and other notices from the Website (whether or not included in the particular Materials used), and appropriate source attribution to Kivuto and its licensors.
4. Availability of the Website, Materials and Kivuto Products. Kivuto may at any time, with or without notice to You, change the format and content of the Website, restrict the use and accessibility of the Website or the Kivuto Products as well as limit the duration and amount of use made of the Website or the Kivuto Products. Kivuto reserves the right to change the design, features and/or functionality of the Kivuto Products by making the updated Kivuto Products available for You to download or, where Your device settings permit it, by automatic delivery of updates.You are not obliged to download any updated Kivuto Product, but we may cease to provide and/or update content to prior versions of any Kivuto Product and, depending on the nature of the update, in some circumstances You may not be able to continue using a Kivuto Product until You have downloaded the updated version. Kivuto may change or discontinue any portion, feature, or content of the Website or the Kivuto Products at any time with or without notice to You; however, Kivuto will make reasonable efforts to provide end users notice of significant changes to the Website or the Kivuto Products when feasible. Information and updates about the changes to the Website or the Kivuto Products and its availability are posted regularly at www.kivuto.com, to which You are encouraged to regularly refer.
We cannot and do not guarantee the continuous, uninterrupted or error-free operability of the Website or any Kivuto Product, or that the Website or Kivuto Product content will respond at a certain speed (since this depends on a number of factors outside our control). Specific service level agreements between Kivuto and an institution or other business entity may be a part of another agreement, and the service level terms of such other agreement take precedence over this paragraph.
5. Third-Party Websites and Content. Kivuto assumes no responsibility for any Materials posted by Third-Parties on the Website or through the Kivuto Products, or accessed on the Website or through the Kivuto Products through hypertext or other computer “links” to sites hosted by Third-Parties that are outside of Kivuto’s control (“Third-Party Site”). Kivuto does not endorse products, services or information provided by such Third-Parties and shall 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 content, goods or services available on or through any Third-Party Site or otherwise posted by Third-Parties on the Website or through the Kivuto Products. Likewise, the inclusion of links to Third-Party Sites on the Website or through the Kivuto Products does not imply that the owners of such Third-Party Sites have given permission for inclusion of these links, or otherwise sponsored or endorsed Kivuto’s Website or the Kivuto Products. Kivuto is not responsible for the accessibility of Third-Party Sites accessed through links on the Website or the Kivuto Products. Should You discover that a link to a Third-Party Site is broken, no longer pointing to the content so indicated on the Website on through the Kivuto Products, or otherwise pointing to inappropriate content, please contact www.kivuto.com.
6. User Content
6.1. The Website and the Kivuto Products, as applicable, may provide functionalities for users to upload or post comments, ideas, articles, information, data, text, software, music, sound, photographs, graphics, video, messages, and other materials or submissions (“User Content”). You should only post User Content that is Your own original work or for which You have otherwise obtained the necessary right or permission to publicly broadcast. The views and opinions expressed in any User Content do not necessarily reflect those of Kivuto or its licensed content providers or licensors. The user who posted the User Content is solely responsible for such User Content. You acknowledge that Kivuto does not pre-screen User Content. Kivuto and its designees reserve the right (but not the obligation) at their sole discretion to monitor, refuse to post, or remove any User Content for any reason. Kivuto reserves the right to terminate Your access to the Website or the Kivuto Products to prevent further posting of prohibited User Content. Please notify Kivuto if You discover any Prohibited User Content (as described below in Section 6.3) at www.kivuto.com.
6.2. Kivuto does not guarantee the accuracy, integrity or quality of User Content and disclaims all liability for any errors, omissions, violation of third-party rights or illegal conduct arising from User Content posted, emailed or otherwise transmitted via the Website.
6.3. Prohibited User Content. You agree not to upload, post, email or otherwise transmit any User Content that:
6.3.1 is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, indecent, offensive, vulgar, obscene, libelous, invasive of another’s privacy, hateful, discriminatory, or racially, ethnically or otherwise objectionable;
6.3.2 You do not have a right to transmit under any law or under contractual or fiduciary relationship (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
6.3.3 infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
6.3.4 contains software viruses or other contaminating or destructive devices, features 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 or provides information relating to or otherwise facilitating the use of malware or other destructive materials or mechanisms;
6.3.5 contains advertising or promotional material of any kind;
Personal Information is defined as information that can identify an Individual directly or indirectly or through other reasonably available means, provided that Personal Information shall not include: (a) business-contact information, such as the name, title or business address or telephone number of an employee of an organization (when such information is used for business purposes); (b) information collected, used or disclosed in the course of journalistic, literary or artistic activities; (c) aggregate information that cannot be associated with a specific Individual, such as demographic statistics about Kivuto customers, or number of visitors and average time spent on a website; or (d) information that is determined not to be Personal Information pursuant to applicable privacy legislation.
6.3.7 undermines the pedagogical purpose of the Material on the Website and the course with which it is used, including but not limited to answers to questions used in the Website.
6.4. Kivuto’s Use of User Content. By posting User Content, You grant Kivuto a perpetual license to host, transmit, use and distribute such User Content for the purposes for which it is posted. You acknowledge and agree that Kivuto reserves the right to preserve User Content: (a) for the longer of either the end of the relevant semester or other registration period for the relevant course or for as long as the end user maintains an account with Kivuto, and for a reasonable time thereafter in either event; and (b) indefinitely in the event of a potential violation of these terms or dispute pertaining to User Content, the Website and/or the user’s account. You acknowledge and agree that Kivuto further reserves the right to disclose User Content in association with Your Personal Information if required to do so by law or based on the good-faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of service hereunder; (c) respond to claims that any User Content violates the rights of Third-Parties; or (d) protect the rights, property, or personal safety of Kivuto, its users and the public. In the case of User Content embodied in Your performance of educational assignments and assessments, Kivuto further reserves the right to host, transmit, use and distribute such content without reference to Your Personal Information indefinitely for the limited purposes of product development and educational research.
7. Restrictions on Use of the Website and the Kivuto Products. You agree not to use the Website or the Kivuto Products, as applicable, to:
7.1. upload, post, email or otherwise transmit any prohibited User Content described in Section 6 or otherwise violate this Agreement;
7.2. impersonate any person or entity, or falsely state or otherwise misrepresent Your affiliation with a person or entity; including using another person’s Login Credentials;
7.3. upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “Spam,” “chain letters,” “pyramid schemes,” or any other form solicitation;
7.4. (a) use or attempt to use any “deep-link,” “scraper,” “robot,” “bot,” “spider,” “data mining,” “computer code” or any other automated device, program, tool, algorithm, process or methodology or manual process having similar processes or functionality, or (b) reverse-engineer any part of the Website or the Kivuto Products, to access, acquire, copy, or monitor any portion of the Website or the Kivuto Products, any data or content found on or accessed through the Website or the Kivuto Products or any other Materials without the prior express written consent of Kivuto;
7.5. obtain or attempt to obtain through any means any Materials, User Content, or any other data, content, software or code available on or through the Website or the Kivuto Products (collectively, the “Website Content”) that have not been intentionally made publicly available either by their public display on the Website or through the Kivuto Products or through their accessibility by a visible link on the Website or the Kivuto Products;
7.6. violate any measure employed to limit or prevent access to the Website, the Kivuto Products or Website Content;
7.7. violate the security of the Website or the Kivuto Products or attempt to gain unauthorized access to the Website, the Kivuto Products, the Website Content, or computer systems or networks connected to any service of the Website through hacking, password mining or any other means;
7.8. interfere or attempt to interfere with the proper working of the Website or the Kivuto Products or any activities conducted on or through the Website or the Kivuto Products, including accessing any Website Content prior to the time that it is intended to be available to the public on the Website;
7.9. take or attempt any action that, in the sole discretion of Kivuto, imposes or may impose an unreasonable or disproportionately large load or burden on the Website or the infrastructure of the Website;
7.10. disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users’ ability to engage in real-time exchanges or to normally post messages, articles, or submissions;
7.11. interfere with or disrupt the Website or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website;
7.12. violate any applicable local, provincial, state, national or international law or the academic rules or other policies of Your educational institution or other sponsoring organization; or
7.13. engage in any conduct which otherwise diminishes the pedagogical or commercial value of the Materials.
8. Your Other Responsibilities Concerning Registration for the Website
8.1. By registering for the Website or the Kivuto Products under this Agreement, You certify to Kivuto that:
the information You have provided to Kivuto in order to register as an end user is complete, accurate and current;
You will notify Kivuto within 15 days of any change in Your registration information;
You consent to the receipt of any notice or process at the email address provided by You, as well as the receipt of other electronic communication through the Website, where applicable, or by mobile text; and
You will not share Your username and password with anyone.
8.2. If any of these certifications is or becomes untrue, or if You do not comply in full with these requirements, Kivuto has the right to suspend and/or terminate Your access to the Website and/or the Kivuto Products, as applicable.
8.3. You are also responsible for obtaining and using all computer hardware and software required for Your access to and use of the Website or the Kivuto Products and for any charges incurred for Your own access to the Website or the Kivuto Products through an Internet access provider or other Third-Party website. These charges are in addition to fees payable by You to Kivuto in connection with access to or use of the Website or the Kivuto Products; Kivuto will not reimburse You for such charges.
8.4. You are responsible for all uses of the Website or the Kivuto Products through Your username and password, whether the use is made by You personally or by someone else. You are responsible for protecting and securing Your username and password from unauthorized use and disclosure. In the event that You become aware of or believe there has been any breach of the Website or the Kivuto Products, such as the theft or unauthorized use of Your username and password, You will notify Kivuto immediately by contacting www.kivuto.com or email@example.com.
8.5 You will be assumed to have obtained permission from the owner of any computer or other device that is controlled, but not owned, by You to download any Kivuto Product to that device. You accept responsibility, in accordance with the terms of this Agreement, for all access to, and use of, any Kivuto Product by You on any device, whether or not it is owned by You.
9. Termination of Access
9.1. Your access commences the day You submit the registration form. Your obligations under this Agreement will exist until the access is terminated by You or Kivuto.
9.2. Subject to conflicting terms and conditions regarding termination as stated in Section 1 (The Website and Kivuto Products), You may terminate this Agreement and Your rights to use the Website or the Kivuto Products at any time and without cause by notifying Kivuto of Your decision to terminate. You may submit notice as outlined in Section 14 (Notice).
9.3. Kivuto may, in its sole and absolute discretion, and with or without notice, suspend Your access to all or any part of the Website, the Website Content or the Kivuto Products, or terminate this Agreement and thus Your rights to use the Website, the Website Content or the Kivuto Products, for any conduct or use (whether by You or anyone else having access under Your username or password) that Kivuto believes is a violation of this Agreement or for any other conduct or use that Kivuto believes is harmful to other end users, Kivuto’s content providers, or to the Website, the Kivuto Products or the interests of Kivuto.
10. Your Remedies. Kivuto’s entire liability to You, and Your sole and exclusive remedy, regarding the use of the Website or the Kivuto Products shall be the replacement of a username or password if a currently valid username or password fails to allow access to the Website or the Kivuto Products. Kivuto does not provide refunds or replacement access in the event of lost or misplaced access codes. Your sole right with respect to any disagreement or dissatisfaction with:
this Agreement, as modified from time to time,
registration cost or other charges for the use of the Website or the Kivuto Products,
access to, use of or performance of the Website or the Kivuto Products, or
any Website Content, is to terminate Your access as provided for in Section 9.2.
11. Disclaimer of Warranties
11.1. KIVUTO MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE WEBSITE OR THE KIVUTO PRODUCTS. THE WEBSITE AND THE KIVUTO PRODUCTS AND ALL INFORMATION, CONTENT, MATERIALS AND SOFTWARE ACCESSIBLE THROUGH THE WEBSITE AND THE KIVUTO PRODUCTS, AS APPLICABLE, ARE PROVIDED FOR USE “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY LAW, KIVUTO DISCLAIMS ALL WARRANTIES AND CONDITIONS, LEGAL, EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING OR RELATING TO THE WEBSITE OR THE KIVUTO PRODUCTS FURNISHED TO USERS UNDER THIS AGREEMENT OR IN CONNECTION WITH THE WEBSITE OR THE KIVUTO PRODUCTS. KIVUTO ALSO MAKES NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE WEBSITE OR THE KIVUTO PRODUCTS WILL BE AVAILABLE OR ERROR FREE OR WHETHER ANY INFORMATION ON THE WEBSITE OR THE KIVUTO PRODUCTS OR ANY WEBSITE WITH WHICH THIS WEBSITE OR THE KIVUTO PRODUCTS IS LINKED IS ACCURATE, COMPLETE, OR CURRENT. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY AND COMPLETENESS OF THE INFORMATION, OPINIONS, AND OTHER MATERIALS INCLUDED ON THE WEBSITE AND THE KIVUTO PRODUCTS, AS APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT: (A) KIVUTO’S LICENSORS MAY HAVE ADDITIONAL AND/OR DISSIMILAR WARRANTY DISCLAIMERS IN RESPECT OF THEIR INTELLECTUAL PROPERTY ACCESSED THROUGH THE WEBSITE, WEBSITE CONTENT OR THE KIVUTO PRODUCTS; AND (B) SUCH WARRANTY DISCLAIMERS SHALL APPLY TO SUCH INTELLECTUAL PROPERTY.
11.2. You expressly agree that Your use of the Website, the Website Content, the Materials and the Kivuto Products is at Your sole risk. No statement, information or advice, including, but not limited to, statements regarding capacity, suitability for use or performance, whether made by a Kivuto employee, reseller or other representative or otherwise, which is not contained in this Agreement shall be deemed to be a warranty by Kivuto for any purpose or give rise to any liability of Kivuto whatsoever, and You agree that You will not rely on any such statement, information or advice.
11.3. Where Kivuto is a distributor, rather than a publisher, of Materials accessible through the Website, Kivuto exercises no more editorial control over such Materials than does a typical public library, bookstore or newsstand. The views and opinions expressed in such information do not necessarily reflect those of Kivuto or its content providers or licensors. Neither Kivuto nor its content providers or licensors makes any warranties or representations regarding the accuracy, adequacy, truthfulness, completeness, or usefulness of such information.
12. Limitation of Liability
12.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KIVUTO AND ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, VENDORS, AND CONTRACTORS (collectively “Kivuto Related Parties”) SHALL IN NO EVENT BE LIABLE FOR ANY CLAIMS, CHARGES, DEMANDS, DAMAGES, LOSSES, EXPENSES OR OTHER LIABILITIES OF WHATEVER NATURE ARISING FROM YOUR USE OR INABILITY TO USE THE WEBSITE OR THE KIVUTO PRODUCTS, OR ANY INFORMATION, CONTENT, MATERIALS OR SOFTWARE ACCESSIBLE THROUGH THE WEBSITE OR THE KIVUTO PRODUCTS – INCLUDING, WITHOUT LIMITATION, ANY COMPENSATORY, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF DATA, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES, LOSS CAUSED BY YOUR RELIANCE ON ANY MATERIALS, CONTENT, INFORMATION, WEBSITES, SOFTWARE OR PRODUCTS OBTAINED ON THE WEBSITE OR THROUGH THE USE OF THE KIVUTO PRODUCTS, OR MISTAKES, OMISSIONS, INTERRUPTIONS, COMMUNICATIONS FAILURE, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, OR THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO YOUR RECORDS, PROGRAMS OR WEBSITES, OR OTHER LOSSES OF ANY KIND OR CHARACTER RELATED TO YOUR USE OF THE WEBSITE OR THE KIVUTO PRODUCTS, OR ALL INFORMATION, CONTENT, MATERIALS OR SOFTWARE ACCESSIBLE THROUGH THE WEBSITE OR THE KIVUTO PRODUCTS — EVEN IF KIVUTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE WEBSITE OR THE KIVUTO PRODUCTS, OR ANY WEBSITE WITH WHICH THE WEBSITE OR THE KIVUTO PRODUCTS IS LINKED. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING PROCEDURES FOR DATA BACK-UP AND VIRUS-CHECKING AS YOU CONSIDER NECESSARY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT: (A) KIVUTO’S LICENSORS MAY HAVE ADDITIONAL AND/OR DISSIMILAR LIMITATION OF LIABILITY PROVISIONS IN RESPECT OF THEIR INTELLECTUAL PROPERTY ACCESSED THROUGH THE WEBSITE, WEBSITE CONTENT OR THE KIVUTO PRODUCTS; AND (B) SUCH PROVISIONS SHALL APPLY TO SUCH INTELLECTUAL PROPERTY.
12.2. If, notwithstanding the foregoing, Kivuto was to be held liable for damages, then regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), in no event shall the maximum liability of Kivuto and the Kivuto Related Parties exceed, either jointly or severally, the aggregate dollar amount paid by You to Kivuto in the twelve (12) months prior to the claimed injury or damage. All of the provisions of this Section are also for the benefit of Kivuto’s directors, officers, shareholders, employees, affiliates, agents, Third-Party content providers, licensors, and anyone else involved in creating, producing or distributing the Website, and each shall have the right to assert and enforce these provisions directly on their own behalf.
13. Indemnification by You. To the fullest extent permitted by law, You agree to defend, indemnify and hold harmless Kivuto and the Kivuto Related Parties from and against any and all Third-Party claims, charges, demands, damages, losses, expenses, and liabilities of whatever nature and howsoever arising (including, but not limited to, any legal or other professional fees and the costs of defending or prosecuting any claim), incurred or suffered by Kivuto and/or the Kivuto Related Parties, directly or indirectly, by reason of any act or omission which You or any of Your agents, contractors, employees or representatives commit in breach of this Agreement or in violation of any Third-Party rights or any laws or regulations that may apply to Your use of the Website, any Website Content, or the Kivuto Products, as applicable. Kivuto reserves the right, in its sole discretion, to direct its legal defense, and You agree to cooperate with Kivuto in its efforts to do so.
14. Notices, Reporting and Questions. Kivuto may give notice to You by electronic mail, by posting such notice on the Website, if applicable, or at www.kivuto.com. Notice by Kivuto shall be effective on the date that Kivuto makes a good-faith effort to reach You.
You shall give notice to Kivuto as stated below. Notice by You shall be effective on the date that Kivuto actually receives the notice.
Online: kivuto.com (see “Contact” tab)
Mail: Kivuto Solutions Inc. 126 York St. Suite 200, Ottawa, Ontario, K1N 5T5
Any questions about this Agreement, the Website, its availability or security, or the Materials contained on it (including any concerns or reports regarding broken links, prohibited User Content, or any other technical or customer support issues), or the Kivuto Products may be reported as noted above. If Your question or concern pertains to particular content or links on the Website, please include the originating Kivuto page URL, any linked page URL and a description of the content in question to ensure Kivuto can quickly respond to the issue. Notice of change to Your registration information as referenced under Section 8 is to be done through Your online Kivuto account profile via the Website, if applicable or through www.kivuto.com.
15. Choice of Law and Forum. Any and all actions, disputes or controversies relating to the Agreement or the Website or Kivuto Products will be decided by courts of competent jurisdiction, and You consent to the jurisdiction and venue of those courts and irrevocably consent to the service of process via email and/or delivered personally or mailed by certified or registered mail, return receipt requested, at the mailing address set forth in Your registration information. This Agreement, Your and Kivuto’s rights and obligations under the Agreement, and any disputes or disagreements regarding the Website or the Kivuto Products will be governed by and construed subject to the choice of law and forum selection provisions below; provided, however, that nothing in this paragraph is intended to limit or contravene the applicability of the local privacy and data security regulations which would otherwise govern the collection, disclosure and use of Your Personal Information.
Regardless of where you reside, you have registered to use this Website or Kivuto Products provided by Canada-based Kivuto. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to its conflict of law principles. You agree to submit to the personal and exclusive jurisdiction of the courts located in the province of Ontario in the event of any claim arising from Your use of the Website, the Kivuto Products or this Agreement.
16. Compliance with United States Export Requirements. So long as the U.S. Export Laws (defined below) do not conflict with Canadian export laws, regulations and other requirements, this Agreement and Your use of the Website or the Kivuto Products are subject to any laws, regulations, orders or other restrictions on export from the United States of America (the “U.S.”) (“U.S. Export Laws”) of certain materials and technical data which may be imposed from time to time by the U.S. Government. Therefore, You will not transfer, directly or indirectly, by electronic means or otherwise, any Website Content, or any direct products thereof, to any country, or to any agent, representative, or foreign national of any country, for which the U.S. Government or any agency thereof requires an export license or other governmental approval at the time of export without first obtaining such license or approval. Pursuant to current restrictions of both the Canadian and U.S. Governments, nationals of Iran, Libya, North Korea, Republic of Crimea, Sudan and Syria may not use or access the Website or Website Content at this time. The U.S. Government and/or the Canadian government may update this list of countries from time to time, such that the list of countries in this Section 16 may be partial. Additionally, other restrictions may apply based on Your location and association. If You are a national of a country that is added to this list after such update by the U.S. Government and/or the Canadian government, You must cease Your use and access of the Website, the Website Content, the Materials or the Kivuto Products, as applicable, immediately, by terminating Your access pursuant to section 9.
17. Infringing or Inappropriate Content. If You believe that any Website Content or any Third-Party Site accessed via the Website or the Kivuto Products contains infringing content, malicious code, or any offensive, libelous, or otherwise illegal or inappropriate content, please contact Kivuto immediately (please see section 14), to ensure Kivuto can quickly respond to the issue. Please include the originating Kivuto page URL, the linked page URL and a description of the content in question.
19. PIPEDA, GDPR, COPPA and FERPA. Kivuto takes numerous measures to maintain the security and confidentiality of all personal information, including student records. Kivuto adheres to and abides by the Personal Information Protection and Electronic Documents Act (“PIPEDA”), the General Data Protection Regulation (“GDPR”), the Children’s Online Privacy Protection Act (“COPPA”), and complies with requirements of the Family Educational Record Privacy Act (“FERPA”) applicable to the educational records of students residing in the United States. For more information about PIPEDA, see the Office of the Privacy Commissioner of Canada website at https://www.priv.gc.ca/leg_c/leg_c_p_e.asp; for more information about GDPR, see the official website of the GDPR at https://gdpr.eu; for more information about COPPA, see the Federal Trade Commision’s FAQ website at https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions; for more information about FERPA, see the US Department of Education’s website at http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.
20.1. This Agreement is personal to You, and You may not assign, transfer or delegate Your rights or obligations under this Agreement to anyone. Kivuto may assign or delegate its rights or obligations under this Agreement.
20.2. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, that provision shall be deemed severable and the remainder of this Agreement shall remain valid and enforceable according to its terms.
20.3. You acknowledge that Kivuto will be irreparably harmed by any breach of this Agreement by You or by Your unauthorized use of the Website, Website Content, the Materials or the Kivuto Products, as applicable, and, further, that monetary damages may not be a sufficient remedy for such harm. You agree that Kivuto shall be entitled, without waiving any other rights or remedies and without further demonstration of irreparable harm or the inadequacy of monetary damages, to seek injunctive or other equitable relief in the event of any breach of this Agreement by You.
20.5 It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
20.6 Kivuto’s licensors for the Materials are the only Third-Party beneficiaries to this Agreement, and each licensor is entitled to enforce these provisions directly to the extent it deems such enforcement is necessary or advisable to protect its rights or the rights of the Materials’ authors hereunder.
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