Unless the context requires otherwise, terms in these Conditions of Use will have the meanings set out below, and where the context so admits, the singular will include the plural and vice versa (the term “including” when used herein will mean “including without limiting the generality for the foregoing”):
“Affiliate”of any Person means, at the time such determination is made, any other Person Controlling, Controlled by or under common Control with such first Person, in each case, whether directly or indirectly.
“Apple” has the meaning set out in Section 19.
“Confidential Information”” has the meaning set out in Section 13.
“Content” means collectively, all material, content, designs, layout, messages, communications, information, data, images, graphics, pictures, illustrations, artwork, photographs, audio, sounds, music, video, object code, source code hypertext mark-up language, software, names, words, titles, phrases, logos, trademarks, service marks, trade names, and other information contained on, in, as part of, or accessible via, each Offering, including, for greater certainty, information about inventory, photographs, location information, and the “look and feel” of the Offering.
“Control” of a corporation or other entity is held by a Person that possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation or other entity, whether: (a) by contract; (b) by ownership of securities of the corporation or other entity to which are attached more than 50 percent of the votes that may be cast to elect directors or persons acting in a similar capacity of the corporation or other entity are held, other than by way of security only, by or for the benefit of such Person; or (c) otherwise, and “Controlled” and “Controlling” have corresponding meanings.
“Documentation” means any documentation in any form whatsoever, including any reports, records, written designs, specifications, requirements, user manuals, installation guides, user guides, instructions, description, flow charts, process maps, drawings or plans provided or made available on, in, via or as part of, any Offering.
Feedback” has the meaning set out in Section 9.
Fees” has the meaning set out in Section 12
“Ideas” means any discoveries, developments, plans, methodologies, designs, research data, trade secrets, improvements to trade secrets, suggestions, documents, proposals, inventions or feedback.
“Intellectual Property Rights” means: (a) any and all proprietary rights provided under: (i) patent law; (ii) copyright law (including moral rights); (iii) trade-mark law; (iv) design patent or industrial design law; or (v) any other statutory provision or common law principle applicable to these Conditions of Use, including trade secret law, which may provide a right in confidential information, ideas, formulae, algorithms, concepts, inventions, processes or know-how generally, or the expression or use of such confidential information, ideas, formulae, algorithms, concepts, inventions, processes or know-how; and (b) any and all applications, registrations, licences, sublicences, agreements or any other evidence of a right in any of the foregoing.
“KML” , “we”, “us” and “our” have the meaning set out at the beginning of these Conditions of Use. “
Licence” has the meaning set out in Section 5.
“Offerings” has the meaning set out at the beginning of these Conditions of Use.
“Product” means any Software, Documentation, or product, distributed or made available to you directly or indirectly by KML, in any manner or format whatsoever, including via a Service
“RIME” has the meaning set out in Section 19.
“Service” means any service, online application or tool provided or made available to you directly or indirectly by KML, in any manner or format whatsoever, including via the Website or any webservice provided by KML.
“Software” means any computer or mobile device application, program, firmware, routine, code, instruction, script, macro, application programming or other interface, tool, document display definition, object library or software tool, or other instruction or set of instructions for hardware, whether in source code or object code and whether expressed in any or all languages including embedded programs (including, for greater certainty, web browser extensions) and human interfaces, SQL and other query languages, hypertext mark-up language and other computer mark-up languages, and all updates, enhancements and upgrades thereto, provided or made available to you directly or indirectly by KML.
“Territories” has the meaning set out in Section 4.
“Third Party Websites” has the meaning set out in Section 10.
“UCITA” has the meaning set out in Section 15.
“Usage Rules” has the meaning set out in Section 19.
“Website” means the website at www.killarney.com and all related webpages, in each case including through their generally available interfaces or any derivative or affiliate website, web page(s) or referred website(s) therefrom.
“use” and “using” have the meaning set out at the beginning of these Conditions of Use.
“use” and “using” have the meaning set out at the beginning of these Conditions of Use.
The Offerings are available only to individuals who are at least 18 years of age and have otherwise achieved the age of majority in the applicable jurisdiction so as to be able to legally agree to these Conditions of Use. You represent and warrant to KML that all registration and other information you submit or provide to KML, including via the Website or any Service or any other means, is accurate and truthful, and that you have the rights to provide such information to us. You agree that KML may, in its sole discretion, refuse to offer any Offering to any person or entity at any time for any reason whatsoever. This provision is void where prohibited by law and the right to use the Offerings is revoked in such jurisdictions.
The Offerings are intended for use internationally (collectively, the “Territories”). KML may change the Territories at any time by updating these Conditions of Use and posting the updated version of these Conditions of Use on the Website, which posting will be deemed to be notice of such change.
Aside from Products or Services purchased for consumption or use, the Offering that has been provided or made available to you directly or indirectly by KML is licensed and not sold to you. Unless otherwise stated in this Section 5 and subject to your compliance at all times with all applicable laws and these Conditions of Use, we hereby grant you a limited, personal, revocable, non-exclusive, non-transferable and non-sublicensable licence (the “Licence”) to use the Offering solely for and in accordance with the purposes applicable to such Offering that may be set out in the Documentation applicable to such Offering or as otherwise instructed or directed by us.
In the case of the Website, the Licence granted to you is limited solely to purposes of becoming informed about KML and the services we offer, and to submit inquires to us. Unless otherwise agreed in writing, the Website may be used only through our generally available interfaces.
In the case of any online application or webservice provided by KML, the Licence granted to you is limited solely to the purposes of using the online application or webservice to request and receive information or data provided by KML.
You agree that we may revoke the Licence at any time with or without any reason, and the Licence will be automatically with immediate effect upon any breach by you of any term or condition of these Conditions of Use.
6.Restrictions and Obligations Applicable to Your Use of the Offerings
You agree that you are responsible for all of your activities and the activities of those on whose behalf you have agreed to these Conditions of Use, while using any Offering.
(a) Restrictions and Obligations Applicable to Your Use of the Offerings
You will not, and will not permit any third party to:
- (i) modify, copy, reproduce, publish, share, post, transmit, display or distribute any Offering or Content, in whole or in part, or any data or information that is derived from any Offering or Content, in whole or in part;
- (ii) sell, rent, lease, license, sublicense, transfer or attempt to sell, rent, lease, license, sublicense or transfer, any Offering or Content, in whole or in part, or any data or information derived from any Offering, in whole in part, to any person or entity, or otherwise exploit any Offering or Content for any commercial purposes without the express prior written consent of KML;
- (iii) impersonate any person or entity, including any employee or representative of KML or any third party;
- (iv) use an Offering or any Content, in whole or in part, to create a product or service that competes with the business or any Offering of KML;
- (v) remove or destroy any copyright notices or other proprietary markings contained in the Offering or Content;
- (vi) falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that we endorse you, your website, your business or any statement you make, or present false information about us or any Offering; or
- (vii) use any Offering to copy, harvest otherwise collect or store Content, in whole or in part.
You will ensure that the Offerings are at all times secure from unauthorized access, and you will, at all times, use the Offerings in compliance with all applicable laws, industry standards and guidelines.
(b) Restrictions and Obligations Applicable to Your Use of the Services, Website and Software
In addition to the restrictions and obligations applicable to your use of the Offerings described in Section 6(a) above, you will not, and will not permit any third party to:
- (i) take any action or upload, post, submit, transmit or otherwise distribute or facilitate the distribution of (or any links to), to or via the Services, Website or Software any data, information or content that:(A) infringes any Intellectual Property Rights or other right of any other person or entity;(B) violates any law or contractual duty;(C) you know is false, misleading, untruthful or inaccurate;(D) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, or otherwise inappropriate, in each case as determined by KML in its sole discretion;(E) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (spamming);(F) involves commercial activities and/or sales without KML’s prior written consent; or(G) is or contains computer viruses, worms, malicious code or any software intended or designed to damage, alter, limit or interfere with the proper functioning of, a computer, mobile device, telecommunications equipment or other hardware or data, or obtain unauthorized access to any system, data, password or other information of KML or any third party;
- (ii) disrupt, disable, overly burden, impair or otherwise interfere with the operation of the Services, Website or the Software or the servers or networks connected to the Services, Website or the Software, or violate the regulations, policies or procedures of such servers and networks;
- (iii) interfere or attempt to interfere with the functioning of any Services, Website or Software;
- (iv) bypass any measures in or part of the Service, Website or Software, or otherwise intended by KML to prevent or restrict use of the Services, Website or Software or accounts, computer systems or networks that connect to the Services, Website or Software;
- (v) operate any form of auto-responder or spam bot on or via the Services, Website or Software;
- (vi) modify, translate, adapt, merge or make derivative works of any part of the Services, Website or Software;
- (vii) disassemble, decompile or reverse engineer the Software, in whole or in part;
- (viii) frame or utilize framing techniques to enclose any Content on the Website;
- (ix) create a hyperlink to the Website without our prior written consent;
- (x) use the Website by any automated means, including scripts, bots and spiders; or
- (xi) collect, index or attempt to collect or index any Content or aspect of the Website, including by way of any “screen scraping”, “database scraping” or any other activity intended to collect, store, re-organize, summarize or manipulate any Content (whether via an automatic program or a manual process).
At all times, you will use the Services, Website and Software in compliance with all applicable laws, instructions from KML and these Conditions of Use. You are responsible for the security of your login credentials to use the Services. We may suspend or terminate your login credentials at any time for any reason in our sole discretion with or without notice to you.
(c) Restrictions Applicable to Your Use of Products
In addition to the restrictions and obligations applicable to your use of the Offerings, including the Services, Website and Software described in Sections 6(a) and 6(b) above, you will not, and will not permit any third party to:
- (i) modify or adapt any Products, in whole or in part, or incorporate Products, in whole or in part, into anything to be used by another person or entity;
- (ii) ascertain or derive or determine, or attempt to ascertain, derive or determine, algorithms or methodologies related to the creation or development of any Product, in whole or in part; or
- (iii) export, import or transfer the Software from, or use the Software in, any country except the country in which the Software was provided or made available to you.
The Software may include functionality to automatically check for changes, updates or upgrades to the Software. You hereby agree that KML may make such changes, updates or upgrades available to you from time to time. Such changes, updates or upgrades will be subject to the terms of these Conditions of Use, unless the Software is expressly provided to you pursuant to different or additional written terms and conditions, in which case, those different or additional terms and conditions (which may include the payment of additional fees), will apply.
You hereby acknowledge and agree that KML expressly reserves and owns all rights, including Intellectual Property Rights, and title to, and interest in, the Offerings, Content and all other materials provided or made accessible by KML hereunder not expressly granted to you. All rights, including Intellectual Property Rights, and title to and interest in, the Offerings, Content and all other materials provided or made accessible by KML hereunder, and all updates, adaptations, translations, customizations, enhancements or derivative works thereof, will remain with KML. You acquire absolutely no rights or licences to any Offering or Content other than the limited right to use the Offering that has been provided or made available to you directly or indirectly by KML, in accordance with these Conditions of Use. Subject to the provisions contained in Section 5, the Offering is licensed and not sold to you. Logos, trademarks and product and company names mentioned on the Website may be the logos and trademarks of their respective owners
9.Communications and Feedback
KML does not guarantee the confidentiality of any communications made by you to KML or any other information transmitted by you to KML, including communications made by email or information transmitted through or in your use of any Offering. We may retain a copy of any such communications for the purpose of and to the extent necessary for us to comply with applicable legal, regulatory and reasonably internal backup or archival purposes and requirements.
By submitting ideas, suggestions, documents, proposals, material, content, graphics, illustrations, photographs, audio, sounds, music, video, messages, communications, artwork, data, information and/or images (collectively, “Feedback”) to KML, including via the Website or a Service, you acknowledge and agree that:
- (a) your Feedback does not contain confidential or proprietary information;
- (b) KML is not under any obligation of confidentiality, express or implied, with respect to the Feedback;
- (c) you grant KML and its affiliates a perpetual, irrevocable, worldwide, royalty-free, fully-paid up, unlimited, sublicensable and non-exclusive licence and right to receive, use, disclose, reproduce, adapt, merge or aggregate with other information or data, modify, translate, publish, publicly perform, make available, publicly display, store, handle, reproduce, display, sell, transfer, transmit and otherwise use such Feedback for any purpose, in any manner, in any media and format;
- (d) KML may have something similar to the Feedback already under consideration or in development;
- (e) you irrevocably waive your moral rights in and to such Feedback and assign to KML all rights in and to your Feedback in perpetuity;
- (f) you are not entitled to any compensation or reimbursement of any kind from KML under any circumstances; and
- (g) you represent and warrant to KML, and can demonstrate to KML’s full satisfaction upon request that you have the rights to grant KML the licence described in Section 9(c) above. You specifically and expressly consent to KML providing you with various communications, newsletters, correspondence, alerts, bulletins and other documentation by email, text message or other forms of electronic communication and You hereby confirm that all such communication is accepted and in compliance with: “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act” S.C. 2010, c. 23 (“CASL”).
10.Third Party Content and Services
KML has no responsibility for providing you with connectivity to the Internet, wireless access, or any other telecommunications services necessary for you to receive or interact with the Website or Services.
You agree to pay all amounts (collectively, the “Fees”), if any, invoiced to you by KML for the use of a Product, Service or Software, which amounts may be invoiced on a per transaction basis or a subscription basis, and in arrears or in advance. You will pay all Fees within 30 days of the receipt of an invoice for such Fees or as otherwise agreed to in writing by KML.
In the course of your use of the Offerings or any part thereof, you may be provided with or have access to certain confidential information of KML or its affiliates, suppliers and licensors. Such confidential information is any information about or related to our Offerings or our business that is not publicly available when you receive it and which we treat as being confidential, whether marked as confidential or not, including market information and analyses, forecasts, trend analysis information, and other information and analyses derived from or provided through the Website and Services (collectively, “Confidential Information”). You will take any and all steps and precautions that may be reasonably required to maintain the confidentiality of the Confidential Information, and you will not use or disclose or provide access to, or transfer or otherwise make available any Confidential Information to any third party except as expressly permitted under this Section 13. You may disclose Confidential Information only to those employees who have a genuine need to know such Confidential Information in order for you to comply with these Conditions of Use, provided you first ensure that such employees are bound by written confidentiality agreements containing terms equivalent to those contained in this Section 13. Your confidentiality obligations will survive any termination of these Conditions of Use or the Licence.
You acknowledge that your breach or threatened breach of your confidentiality obligations hereunder will cause KML irreparable damage or injury, the exact amount of which cannot be ascertained, and that, for such reason, in addition to any other remedies available to us, we are entitled to proceed immediately to court in order to obtain interim, interlocutory, and final injunctive relief restraining you from breaching, and requiring you to comply with, your obligations under this Section 13, without the need to prove irreparable damage or injury, or post any security. You further acknowledge and agree that the Offerings and Content were developed at considerable time and expense by KML and is confidential to and contains trade-secrets of KML or its licensors.
14.Termination and Suspension
If you breach any of the provisions of these Conditions of Use, KML may terminate these Conditions of Use, including revoking your Licence to the Offerings and/or suspending your use of one or more Offerings. You will be deemed to be in breach of these Conditions of Use if any Fees remain unpaid more than 30 days following the date payment of such Fees was due. KML will not have any liability to you arising from, in connection with or related to the termination of these Conditions of Use or the suspension of your use of one or more Offerings in accordance with this Section 14. KML may also temporarily suspend the Services, in whole or in part, where required by law, in the case of security violations or threats, for service maintenance or repair, or for any other reasons deemed necessary or desirable by KML. Upon the termination of these Conditions of Use, you will cease all use of the Offerings and, if possible, permanently delete all copies of any Products or Content in your possession or control.
THE OFFERINGS AND THE CONTENT ARE BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. KML DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. KML DOES NOT WARRANT THAT THE INSTALLATION OF THE SOFTWARE OR THE USE OF ANY OFFERING WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KML MAY CORRECT, MODIFY, AMEND, ENHANCE, IMPROVE AND MAKE ANY OTHER CHANGES TO ANY OFFERING OR THE CONTENT AT ANY TIME, OR DISCONTINUE PROVIDING ANY OFFERING OR DISPLAYING ANY CONTENT AT ANY TIME WITH OR WITHOUT NOTICE.
WITHOUT LIMITING ANY OF THE FOREGOING, YOU HEREBY ACKNOWLEDGE AND AGREE THAT:
- (a) KML HAS NO OBLIGATION TO STORE ANY FEEDBACK THAT YOU PROVIDE, INCLUDING VIA ANY OFFERING;
- (b) THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (“UCITA”) AS ENACTED IN ANY STATE AND THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ARE HEREBY EXCLUDED IN THEIR ENTIRETY FROM APPLICATION TO THESE CONDITIONS OF USE;
- (c) THE SOFTWARE AND SERVICES ARE NOT SUITABLE FOR USE IN MISSION CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS;
- (d) ANY CLAIM ARISING FROM, IN CONNECTION WITH OR RELATED TO THESE CONDITIONS OF USE, ANY OFFERING OR THE CONTENT MUST BE BROUGHT WITHIN ONE YEAR FOLLOWING THE DATE THAT THE CAUSE OF ACTION UNDERLYING SUCH CLAIM FIRST AROSE. THESE CONDITIONS OF USE APPLY TO YOU AND YOUR SUCCESSORS, AND ALSO KML AND ITS SUCCESSORS AND ASSIGNS; AND
- (e) KML IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE KML, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
IN NO EVENT WILL KML BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT OR ARISE FROM, ARE RELATED TO OR ARE IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, ANY OFFERING OR ANY THIRD PARTY WEBSITES, INCLUDING ANY PRODUCTS OR CONTENT, EVEN IF KML HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU EXPRESSLY HOLD KML HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, LIABILITY, DAMAGES, INJURIES AND EXPENSES (INCLUDING PERSONAL INJURY CLAIMS) ARISING OUT OF OR RELATING TO YOUR USE OF ANY OFFERING OR THE CONTENT, THIRD PARTY WEBSITES, AND ANY ALLEGED OR ACTUAL VIOLATION BY YOU OF THESE CONDITIONS OF USE.
EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS OF USE AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION, KML WILL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT, OR OTHERWISE TO YOU, INCLUDING ANY LIABILITY FOR NEGLIGENCE OR STRICT LIABILITY. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THESE CONDITIONS OF USE WILL APPLY:
- (i) IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY YOU, INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND WILL SURVIVE A FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THESE CONDITIONS OF USE OR OF ANY REMEDY CONTAINED HEREIN; AND
- (ii) TO KML AND ITS AFFILIATES, THEIR SUCCESSORS, ASSIGNS, AGENTS, SUPPLIERS, AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND INDEPENDENT CONTRACTORS.
YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THESE CONDITIONS OF USE CONSTITUTE AN ESSENTIAL ELEMENT OF THESE CONDITIONS OF USE AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS, THE FEES AND OTHER TERMS IN THESE CONDITIONS OF USE WOULD BE SUBSTANTIALLY DIFFERENT. IN ADDITION TO THE LIMITATIONS AND EXCLUSIONS SET OUT ABOVE, IN NO EVENT WILL ANY DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUCCESSORS OR ASSIGNS OF KML, OR ANY DISTRIBUTORS, SUPPLIERS, INDEPENDENT CONTRACTORS, CUSTOMERS, PARTNERS OR ORGANIZATIONS THAT WORK WITH KML IN CONNECTION WITH THE OFFERINGS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, OR ANY AFFILIATES OF KML HAVE ANY LIABILITY ARISING FROM OR RELATED TO THESE CONDITIONS OF USE, THE CONTENT OR ANY OFFERING.
16.Limitation of Liability
In no event will the aggregate liability of KML based upon, arising from, in connection with or related to these Conditions of Use, the Content or the Offerings exceed the Fees, if any, paid by you for that Offering that gave rise to the claim, in the month in which the cause of action underlying such claim first arose.
17.Defence and Indemnity
You will defend, indemnify, and hold harmless KML, its affiliates and each of their respective directors, officers, employees, contractors, suppliers, licensors, representatives and agents from all liabilities, claims, and expenses, including reasonable legal fees, that arise from, are based upon or in connection with, or relate to your use of any one or more Offerings or anyone using your login credentials to one or more Offerings, or any violation or alleged violation by your or anyone using your login credentials of these Conditions of Use.
KML reserves the right at any time and from time to time to change these Conditions of Use and to notify you of such change by posting the updated version of these Conditions of Use on the Website. You are responsible for regularly reviewing these Conditions of Use, including by checking the date of “Last Update” at the beginning of these Conditions of Use. Continued use of any Offering or the Content after any such changes will constitute your consent to be bound by such changes, with continued provision of the use of the Offering or Content, in whole or in part, constituting consideration from KML to you for so being bound. Your only right with respect to any dissatisfaction with these Conditions of Use, any policy or practice of ours in operating, offering or providing our Offerings or the Content, is to stop using our Offerings and the Content.
19.Additional Usage Rules
Since you may download certain Software from a third party app store, your use of such Software may be governed by usage rules established by the app store provider which relate to your usage of such Software (collectively, the “Usage Rules”) in addition to these Conditions of Use. You represent and warrant that you are not prohibited by any applicable laws or Usage Rules from downloading and using such Software. By downloading, installing and using such Software, you acknowledge and agree that:
- (a) these Conditions of Use are between you and KML, and not with Research In Motion E-Commerce Inc., Research In Motion E-Commerce Corporation, and Research In Motion E-Commerce S.A.R.L. (collectively, “RIME”) or Apple Inc. (“Apple”);
- (b) RIME and Apple:
- (i) are not liable to you in any way whatsoever in relation to such Software, including the distribution, use, performance or non-performance of such Software; and
- (c) Apple:
- (A) is not responsible for addressing any claims you may have relating to such Software or your use of such Software, including product liability claims, any claim that such Software fails to conform to any applicable legal or regulatory environment, and claims arising under consumer protection or similar legislation;
- (B) is not responsible for the investigation, defence, settlement or discharge of any third party claims that such Software or your possession of such Software infringes that third party’s Intellectual Property Rights; and
- (C) has no obligation whatsoever to furnish any maintenance and support services to you with respect to such Software. By using such Software, you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties, and you acknowledge and agree that the Licence to use such Software on an Apple product is limited to a non-transferable licence to use such Software on any Apple-branded product that you own or control and as permitted by Apple’s Usage Rules set forth in the App Store Terms of Service.
KML may assign this Agreement, in whole or in part, without notice to you or your prior consent. You may not assign this Agreement, in whole or in part, without the prior written consent of KML, and any such assignment by you without KML’s prior written consent will be of no effect. KML may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractors, subcontractors or affiliates.
Except as otherwise provided in these Conditions of Use, all notices or other communications hereunder from you to us will be deemed to have been duly given when made in writing and delivered in person, by courier or deposited in the mail, postage prepaid, registered mail, return receipt requested, and addressed to KML at 3 Commissioner Street, Killarney, Ontario P0M 2A0, Canada.
(c) Force Majeure.
Notwithstanding any other provision in these Conditions of Use, we will not be in default or breach of these Conditions of Use for failure to fulfill our obligations when due to or contributed by causes beyond our reasonable control, including: an act of God such including a fire, flood, earthquake, epidemic, volcanic eruption, adverse weather conditions, storm, hurricane or other natural disaster, a strike, lock-out, labour dispute; war, invasion, act of foreign enemy hostilities (whether war has been declared or not), civil war rebellion revolution insurrection or military or usurped power, terrorism, act of sabotage, civil disturbance, blockade, riot, civil commotion, malicious damage, interruption or failure of electricity, power supply, interruption or failure of the internet or other telecommunication facility, network or means of telecommunication, computer virus, or bug, third party computer infiltration, attack by a hacker, governmental restriction, or any other act or circumstance that materially increases or affects the risk or danger to the health or safety of members of the public.
(d) Entire Agreement.
Unless otherwise agreed to in writing by KML:
- (i) these Conditions of Use constitute the entire agreement between you and KML pertaining to the subject matter hereof;
- (ii) there are no provisions, understandings, communications, representations, warranties, undertakings, collateral agreements or agreements between you and KML relating to any Offering or the Content other than as set out in these Conditions of Use; and
- (iii) these Conditions of Use supersede all prior or contemporaneous communications, proposals, undertakings, collateral agreements and agreements, whether electronic, oral or written between you and KML with respect to the subject matter hereof, and you acknowledge that you have not relied on any of the foregoing in agreeing to these Conditions of Use.
(e) No Waiver.
KML’s failure to insist upon or enforce strict performance of any provision of these Conditions of Use will not be construed as a waiver of any provisions or right. Any waiver of the terms or conditions herein by KML must be in writing and signed by an authorized officer of KML expressly referencing the applicable provisions of Conditions of Use. Waiver of any provision hereof in one instance will not preclude enforcement thereof on future occasions.
If any provision of these Conditions of Use is determined to be invalid or unenforceable by any court of competent jurisdiction, then:
- (i) such provision will be, solely to the extent of such invalidity or unenforceability, as applicable, deemed omitted, and the remaining provisions will continue in full force and effect; and
- (ii) such determination will not affect the legality, validity or enforceability of the remaining provisions of these Conditions of Use or the legality, validity or enforceability of such provision in any other jurisdiction.
(g) Third Party Beneficiaries.
KML’s affiliates and their respective employees, officers, directors, shareholders, contractors, suppliers and representatives are third party beneficiaries for the purpose of the limitation of liability provisions and your indemnity obligations contained herein. Except as otherwise specifically stated in this Section 20(g), the provisions herein are for the benefit of you and KML, and not for any other person or entity.
The following provisions in these Conditions of Use will survive any termination of these Conditions of Use or revocation of your Licence: Section 8 (Proprietary Rights); Section 9 (Communications and Feedback); Section 10 (Third Party Content and Services); Section 11 (Telecommunications Services); Section 12 (Fees); Section 13 (Confidentiality); Section 15 (Disclaimers); Section 16 (Limitation of Liability); Section 17 (Defence and Indemnity); Section 18 (Changes); Section 19 (Additional Usage Rules); this Section 20; and all representations and warranties provided by you as described in these Conditions of Use.
The suppliers, agents, employees, contractors, licensors, distributors, and dealers of KML are not authorized to amend or make any modifications to these Conditions of Use, or to make any additional representations, commitments, or warranties binding on KML, and all such amendments, modifications, representations, commitments and warranties will be of no force or effect. Amendments to or modifications of these Conditions of Use will be made solely in accordance with Section 18.
(j) Governing Law, Jurisdiction and Venue, and Class Action Waiver.
These Conditions of Use will be governed by and construed under the laws of the Province of Ontario, and the federal laws of Canada applicable therein, excluding any body of law governing conflicts of law. KML has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding:
- (i) amounts owed by you to KML in connection with your use of any Offering or any portion thereof; or
- (ii) your violation or threatened violation of these Conditions of Use or any part thereof. You irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario, for any claims arising from or related to these Conditions of Use or any Offering or the Content. You agree that, in the event that there is a dispute under these Conditions of Use and such dispute is to be resolved in a court of law, such dispute will not be resolved by jury trial, and you hereby:
- (i) waive all rights to a trial by jury in any matter related to or arising from these Conditions of Use; and
- (ii) agree that such dispute will be conducted only on an individual basis and not in a class, representative, consolidated or mass action. If any part of this Section 20(j) is found to be unenforceable, the remainder of this Section 20(j) will still be given full force and effect
It is the express wish of the parties that these Conditions of Use and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.