Texidium End User License Agreement
These terms constitute an agreement between You and Kivuto Solutions Inc. (“Kivuto”) and its direct and indirect affiliates. Access or use of the website and/or associated Kivuto applications and/or services 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.
Kivuto may change any of the terms in this Agreement at any time, but material changes will only be made upon reasonable prior notice. Changes will become effective upon posting. If You do not wish choose to accept the changes to the terms of this Agreement, You may cancel your access to the relevant website as described below in Section 10.3. Continued use of Kivuto websites, applications, and services accessed through Your Kivuto Account constitutes Your acceptance of the terms of the modified Agreement.
1. The Website
2. Ownership of the Information, Materials and Software of the Website
You expressly acknowledge and agree that the Website contains information, text, software, photos, video, graphics, music, sounds and other material (called “Materials”) that are protected by copyrights, trademarks, trade secrets, patents or other proprietary rights (called “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.
3. Use of the Information and Materials of the Website
3.1. Limited End-User License. Kivuto grants a limited license to all users of the Website that is nonexclusive, personal, and nontransferable and may not be sublicensed. Website Licensees may use, display, and, when such functions are available on the Website, mark up, download, and print Materials obtained through the Website solely for their own personal, non-commercial, educational purposes. These rights are governed by (a) Copyright Law as well as (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.
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, publish, broadcast, or otherwise disseminate or distribute Materials from the Website to anyone, 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 nor answers to any homework or test questions provided by the Website 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 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 and Materials. Kivuto may at any time, with or without notice to You, restrict the use and accessibility of the Website as well as limit the duration and amount of use made of the Website. Other than periodic restrictions for the purposes of routine maintenance, such restrictions are typically only made in extraordinary circumstances which are beyond Kivuto’s control. Kivuto may change or discontinue any portion, feature, or content of the Website 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 when feasible and provide alternative materials if substantial portions of the Website are removed. Information and updates about the changes to the Website and its availability are posted regularly at www.texidium.com/help.
5. Third-Party Websites and Content. Kivuto assumes no responsibility for any Materials posted by third parties on the Website or accessed on the Website 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. Likewise, the inclusion of links to Third-Party Sites on the Website 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. Kivuto is not responsible for the accessibility of Third-Party Sites accessed through links on the Website. Should You discover that a link to a Third-Party Site is broken, no longer pointing to the content so indicated on the Website, or otherwise pointing to inappropriate content, please contact www.texidium.com/help.
6. End-User Content
6.1. The Website 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 (“End-User Content”). You should only post End-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 End-User Content do not necessarily reflect those of Kivuto or its licensed content providers or licensors. The end user who posted the End-User Content is solely responsible for such End-User Content. You acknowledge that Kivuto does not pre-screen End-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 End-User Content for any reason. Kivuto reserves the right to terminate Your access to the Website to prevent further posting of prohibited End-User Content. Please notify Kivuto if You discover any Prohibited End-User Content (as described below in Section 6.3) at www.texidium.com/help.
6.2. Kivuto does not guarantee the accuracy, integrity or quality of End-User Content and disclaims all liability for any errors, omissions, violation of third-party rights or illegal conduct arising from End-User Content posted, emailed or otherwise transmitted via the Website.
6.3. Prohibited End-User Content. You agree not to upload, post, email or otherwise transmit any End-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, 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;
6.3.6 contains a third party’s Personal Information (as defined in Section 8.2) except in connection with the posting and/or transmittal of grades or other information by an instructor or educational institution in a manner that may be accessed only by the relevant end user and/or which is consistent with Section 8.4;
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 End-User Content. By posting End-User Content, You grant Kivuto a perpetual license to host, transmit, use and distribute such End-User Content for the purposes for which it is posted. You acknowledge and agree that Kivuto reserves the right to preserve End User Content: (a) for the longer of either the end of the relevant semester or other registration period for the relevant course or other website 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 End-User Content, the Website and/or the end user’s account. You acknowledge and agree that Kivuto further reserves the right to disclose End-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 End-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 End-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. You agree not to use the Website to:
7.1. upload, post, email or otherwise transmit any prohibited End-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. 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, to access, acquire, copy, or monitor any portion of the Website, any data or content found on or accessed through the Website or any other Kivuto Materials without the prior express written consent of Kivuto;
7.5. obtain or attempt to obtain through any means any Materials, End-User Content, or any other data, content, software or code available on or through the Website (“Website Content”) that have not been intentionally made publicly available either by their public display on the Website or through their accessibility by a visible link on the Website;
7.6. violate any measure employed to limit or prevent access to the Website or Website Content;
7.7. violate the security of the Website or attempt to gain unauthorized access to the Website, 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 any activities conducted on or through the Website, 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.
8.1. Demographic Information. By using the Website, You agree that Kivuto may collect and use demographic data about Your use of the Website in a form that has been modified so that You may not reasonably be identified to assist in market evaluation, product assessment and improvement, educational research and for other purposes as reasonably determined by Kivuto.
8.2. Personal Information. For the purposes of this Agreement, “Personal Information” means information collected by Kivuto on this Website or otherwise provided by You that contains identifiable information such as Your name, email, username, password.
8.4. Collection, Use and Disclosure of Personal Information. Kivuto will not disclose Personal Information associated with Your use of the Website to any third parties not affiliated with Kivuto except as set forth in this Agreement. By accepting this Agreement, you acknowledge and agree that Kivuto may collect, use and disclose Your Personal Information as permitted and/or required by local privacy regulations applicable to You. By accepting the terms of this Agreement, You explicitly consent to the following uses and disclosures of Your Personal Information (to the extent applicable to You) for the purposes stated herein:
- When You post or otherwise communicate any of Your Personal Information within forums, communities, application rosters, directories and/or other communication tools within the Website that facilitate engagement among end users, Your consent to disclosure is implied and Kivuto shall not be responsible for any further disclosures which may result from such posting.
- Personal Information, including grades and other educational records, may be collected, used, hosted, and stored by and/or disclosed to instructors, administrators or other members of the educational institution sponsoring a particular course on the Website through rosters, grade books and other application functions. Instructors and course administrators may have the ability to export grade book information from the Website for the purpose of maintaining educational records, and in some instances, may also be able to import data already maintained by Your educational institution into a Website application.
- Personal Information may be collected, used, hosted, stored and disclosed by Kivuto at the request of the educational institution, school district or system in which You are enrolled, or any other organization that may be sponsoring Your use of the Website, or by applicable governmental educational authorities, for educational or administrative purposes, such as evaluating student or instructor participation in the Website activities or for evaluation of the Website’s educational efficacy; or
8.5. Statistical Data. Some activities within the Website may request users to submit information that is tabulated and stored in a database. The data obtained is used to produce statistics that are integral to the educational value of these activities. Anywhere the requested data is personal in nature, a user’s specific responses remain confidential and are not associated with name or e-mail address in any way. By participating in an activity that uses information entered by end users for statistical analysis within the activity, you are giving us consent to include Your data in the study.
8.6 Access, Correction and Contacting Us. If You wish to access or correct Personal Information provided in connection with this Website, You may either make such changes directly by modifying your Kivuto account profile, or you may email or write to us at the addresses provided in Section 15 (Notice). Your right to access or correct Personal Information is subject to applicable legal restrictions. We may take reasonable steps to verify Your identity before granting access or making corrections. If You wish to make inquiries or complaints, or if you have other concerns about our Personal Information practices (including regarding the transfer of Personal Information to other jurisdictions), You may email or write to us as described above.
8.7. Use of “Cookies”. You acknowledge and consent to the use of “cookies” in connection with Your activity on the Website. These cookies are retained for as long as You are registered for a Website. Cookies are alphanumeric identifiers that we transfer to Your computer or device’s local storage through Your web browser when You visit and revisit the Website. Cookies permit us and our service providers to track the pages You visit and the content You view and are necessary for the proper functioning of this Website.
Although the information collected through cookies is not itself considered Personal Information, such information may enable us to relate Your use of the Website to other information we have collected about You, including Personal information. If You do not want us to be able to store cookies in Your local storage, Your browser’s help section should be able to tell You how You can disable or filter cookies and how to arrange for Your browser to tell You when You’ve been sent a new cookie. Disabling certain cookies may, however, limit Your ability to use this Website or certain features of the Website.
8.8. Collection of IP Addresses. When You sign in to the Website, some information such as Your Internet Protocol (IP) address, Internet service provider, operating system, the service from which You arrived, and the time and date of Your visit may be collected automatically as part of the software operation of this environment. This information, while not itself Personal Information, will be linked to You personally through the sign-in process. This information is not visible or accessible to other users of the Website, but is tracked and used by Kivuto for administrative purposes and to improve the Website service.
8.9. Nature of Data on the Internet. Due to the complexity and open nature of the Internet, there is always a risk that information collected and/or displayed on the Website may be compromised or accessed notwithstanding the implementation of stringent data security measures by Kivuto. To mitigate such risks, You should (a) use secure usernames and passwords and carefully protect them from disclosure; (b) restrict Your access of the Website to secure networks; and (c) implement updated internet security and virus protection software on Your computer system. Should You suspect that Your computer’s security has been compromised or that Your username or password may have been have been accessed by a third party, please contact firstname.lastname@example.org. Also, change Your username and password immediately through Your Kivuto account profile.
8.10. Cross-Border Transfer of Data. Due to the global nature of the Website, Personal Information may be transmitted, stored and processed in a country other than the one in which You reside (“Resident Jurisdiction”), including primarily in Canada, the United States, the European Union and India. Personal Information provided to Kivuto through the Texidium service will be stored on servers located in Quebec City, Quebec, Canada. Reasonable contractual or other measures Kivuto may take to protect Your Personal Information while outside your Resident Jurisdiction are subject to applicable local legal requirements, for example, lawful requirements by governmental authorities or court order to disclose Personal Information to government authorities in the country in which such data may be stored or processed. IF YOU RESIDE IN THE EUROPEAN UNION, CANADA OR OTHER JURISDICTION WITH SIMILAR DATA TRANSFER REGULATIONS, BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU EXPLICITLY CONSENT THAT THE PERSONAL INFORMATION YOU PROVIDE MAY BE TRANSFERRED AND STORED IN COUNTRIES OUTSIDE THE EU, CANADA OR YOUR RESIDENT JURISDICTION, INCLUDING THE UNITED STATES. IF YOU FAIL TO PROVIDE YOUR CONSENT, YOU WILL NOT BE PERMITTED TO ACCESS THE SERVICES FOR WHICH REGISTRATION IS REQUIRED. YOUR PERSONAL INFORMATION SHALL ONLY BE USED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
8.12 Anonymous Registration. We are unable to support the use of the Website unless this Agreement is accepted. You can create your Kivuto account using a pseudonym, if you do not wish Kivuto to have a record of your real Personal Information. To register anonymously:
- Set up an email address for your pseudonym (fake name) so that your instructor and Kivuto can communicate with you when necessary. Use an email service like Yahoo! or Gmail.
- On the Account Registration page, enter the pseudonym email address and name instead of your real Personal Information.
- If you have registered for Kivuto Websites before with your real Personal Information and are now choosing to use a pseudonym, create a new account with a new username and password. Do not use the existing username that is associated with your real Personal Information. Note that any books acquired using the original account will not be accessible from the new account.
9. Your Other Responsibilities Concerning Registration for the Website
9.1. By registering for the Website 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; and
- You will not share Your username and password except as expressly authorized under the terms of Your license.
9.2. 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.
9.3. You are also responsible for obtaining and using all computer hardware and software required for Your access to and use of the Website and for any charges incurred for Your own access to the Website through an Internet access provider or other third-party website.
9.4. You are responsible for all uses of the Website 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, such as the theft or unauthorized use of Your username and password, You will notify Kivuto immediately by contacting email@example.com.
10. Termination of Access
10.1. If for any reason within the first 15 days of registering directly with Kivuto, in any manner, You are dissatisfied with the Website, You can request a full termination, whereupon Your access and this License will terminate. This policy does not apply to lost or misplaced access codes nor does this policy apply to purchases made through a retail store including, but not limited to, a campus bookstore. Your purchase of Kivuto products, including access codes, through a retail store are subject to the refund policy of that store.
10.2. 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.
10.3. You may terminate this Agreement and Your rights to use the Website at any time and without cause by notifying Kivuto of Your decision to terminate. You may submit notice as outlined in Section 15 (Notice).
10.4. Kivuto may, in its sole and absolute discretion, and with or without notice, suspend Your access to all or any part of the Website, or terminate this Agreement and thus Your rights to use the Website, 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 or the interests of Kivuto.
11. Your Remedies. Kivuto’s entire liability to You, and Your sole and exclusive remedy, regarding the use of the Website shall be the replacement of a username or password if a currently valid username or password fails to allow access to the Website. 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,
- access to, use of or performance of the Website, or
- any Website Content, is to terminate Your access as provided for in Section 10.3.
12. Disclaimer of Warranties
12.1. KIVUTO MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE WEBSITE. THE WEBSITE AND ALL INFORMATION, CONTENT, MATERIALS AND SOFTWARE ACCESSIBLE THROUGH THE WEBSITE 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 PRODUCTS OR WEBSITES FURNISHED TO LICENSEES UNDER THIS AGREEMENT OR IN CONNECTION WITH THE WEBSITE. KIVUTO ALSO MAKES NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE WEBSITE WILL BE AVAILABLE OR ERROR FREE OR WHETHER ANY INFORMATION ON THE WEBSITE OR ANY WEBSITE WITH WHICH THIS WEBSITE IS LINKED IS ACCURATE, COMPLETE, OR CURRENT. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY AND COMPLETENESS OF THE INFORMATION, OPINOINS, AND OTHER MATERIALS INCLUDED ON THE WEBSITE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
12.2. You expressly agree that Your use of the Website 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.
12.3. 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 make any warranties or representations regarding the accuracy, adequacy, truthfulness, completeness, or usefulness of such information.
13. Limitation of Liability
13.1. 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 – 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 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 — 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 ANY WEBSITE WITH WHICH IT 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.
13.2. If, notwithstanding the foregoing, Kivuto were 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.
14. 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 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 or any Website Content.
15. Notices, Reporting and Questions. Kivuto may give notice to You by electronic mail, by posting such notice on the Website or at www.texidium.com/help. 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.comsee “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 End-User Content, or any other technical or customer support issues) may be reported to the contacts 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 or through www.texidium.com/help.
16. Choice of Law and Forum. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any and all actions, disputes or controversies relating to the Agreement or the Website 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 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 provided by Canada-based Kivuto. This Agreement shall be governed and construed in accordance with the laws of Ontario and the 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 or this Agreement.
17. Compliance with United States Export Requirements. This Agreement and Your use of the Website are subject to any laws, regulations, orders or other restrictions on export from the United States of America (which we will call the “U.S.”) 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 the U.S. Government, nationals of Cuba, Iran, Myanmar (Burma), North Korea, Sudan and Syria may not use or access the Website or Website Content at this time.
18. DMCA. If You believe that any content on the Website or any Third-Party Site accessed via the Website contains infringing content, malicious code, or any offensive, libelous, or otherwise illegal or inappropriate content, please contact Kivuto immediately, as shown above, to ensure Kivuto can quickly respond to the issue. You should include the originating Kivuto page URL, the linked page URL and a description of the content in question.
19. PIPEDA 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) 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 and FERPA generally, see the Office of the Privacy Commissioner of Canada website at https://www.priv.gc.ca/leg_c/leg_c_p_e.asp, or 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, 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 or Website Content 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 obtain injunctive or other equitable relief in the event of any breach of this Agreement by You or by Your unauthorized use of the Website or Website Content.
20.4. This Agreement is the entire agreement between Kivuto and You with respect to the Website. Headings in this Agreement are for Your convenience only and do not have any legal meaning or effect. If Kivuto waives or fails to enforce any term or condition of this Agreement on any one or more occasions, whether by conduct or otherwise, its waiver or failure to enforce will not mean that it must waive or cannot enforce such term or condition on any other occasion, or any other term or condition of this Agreement. The meaning of this Agreement cannot be changed by Your or Kivuto’s conduct, even if repeated, or by any custom or practice of others engaged in the same or similar businesses. In addition to being a part of the registration form, this Agreement resides on the Website under the “License Agreement” link so that You may reference it at any time.
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 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.
21.0 Nelson books. For books that are provided by Nelson, the following expressly apply:
- Prior to accessing the Nelson product, we ask that you read the terms surrounding the use for these products by accessing it here: http://www.nelson.com/terms.html.
22.0 Cengage Learning Inc. (“CL”). For books that are provided by CL, the following expressly apply:
- The content of each eBook Title is a copyrighted work of CL indicated in the eBook Title, and CL reserves all rights in and to each eBook Title.
- The user is receiving only a limited right from CL to use each eBook Title for user’s own internal or personal use. The user may not reproduce, forward, modify, print, create derivative works based upon, transmit, distribute, disseminate, sell, publish or sublicense any eBook Title or in any way commingle the content of any eBook Title with other third-party content, without CL’s prior written consent.
EBOOK TITLES ARE PROVIDED ON AN “AS IS” BASIS. NEITHER CL NOR ITS LICENSORS MAKE ANY GUARANTEES OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO ANY CL CONTENT OR THE INFORMATION THEREIN OR ANY WARRANTIES AS TO THE ACCURACY, COMPLETENESS, CURRENTNESS, OR RESULTS TO BE OBTAINED FROM, ACCESSING OR USING CL’S CONTENT, OR ANY MATERIAL REFERENCED IN SUCH CONTENT. ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARE DISCLAIMED. ANY MATERIAL OR DATA OBTAINED THROUGH USE OF CL’S CONTENT IS AT YOUR OWN DISCRETION AND RISK, AND YOU UNDERSTAND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.
NEITHER CL NOR ITS LICENSORS SHALL BE LIABLE TO ANY USER OR TO ANYONE ELSE FOR ANY INACCURACY, DELAY, INTERRUPTION IN SERVICE, ERROR OR OMISSION, REGARDLESS OF CAUSE, OR FOR ANY DAMAGES RESULTING THEREFROM.
IN NO EVENT WILL CL OR ITS LICENSORS, BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST TIME, LOST MONEY, LOST PROFITS OR GOOD WILL, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEN OR UNFORESEEN WITH RESPECT TO ANY USE OF CL CONTENT.
© 2018 Kivuto Solutions, Inc. All rights reserved.
V3 – Last updated 29 November 2016