Updated: May 20, 2011
KAWARTHA COTTAGE RENTALS (“KCR”) provides various services to its customers. To that end, KCR operates kawartha-cottage-rentals.com and simcoe-county-cottage-rentals.info It is from these sites that members are able to create profiles and post text, files, images, photos, video, sounds, musical works, works of authorship, applications, and other materials (collectively referred to as “Content“) as they participate in our online community.
The services offered by KCR include any and all KCR branded URLs (the “KCR Website“), KCR online web based management applications offered now or in the future by KCR in connection with the KCR Website (collectively, the “KCR Services“).
The KCR Website and all other KCR Services are hosted in North America with backup servers in other locations around the globe.
TERMS & CONDITIONS
- Amendments: KCR may modify this Agreement from time to time and such modification shall be effective upon posting by KCR on the KCR Website. Your continued use of the KCR Services after KCR posts a revised Agreement signifies your acceptance of the revised Agreement. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
(a) Headings – The division of this Agreement into articles, sections, paragraphs, subsections and clause and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
(b) Capitalized Terms – Each capitalized term has the meaning given to it in this Agreement.
(c) Additional Terms & Conditions – In order to use certain KCR Services, you may be required to download software or content and/or agree to additional terms and conditions from KCR. Unless otherwise provided by the additional terms and conditions applicable to the KCR Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement.
(a) Representations & Warranties – In consideration of your use of the KCR Services, you represent and warrant that:
i. you are of legal age to form a binding contract or are at least fourteen (14) years of age and have parental consent to enter in this Agreement;
ii. you are not a person barred from receiving services under the laws and regulations of Ontario, Canada or other applicable jurisdictions;
iii. you will provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Information“);
iv. you will maintain and promptly update the Registration Information to keep it true, accurate, current and complete.
(b) If you are between 14 and 18 years of age, a parent or legal guardian must assist you and supervise you in setting up any and all accounts and in accessing the KCR Services. If you are under the age of eighteen and do not have the consent of your parent or legal guardian to use the KCR Services, you are not permitted to do so.
By accessing the KCR Services, you will be able to access all of the KCR Services including, email, message boards, groups, instant messages and chat (among others). The KCR Services are designed to appeal to a broad audience. Accordingly, it is the responsibility of the parent or legal guardian to determine whether any of the KCR Services and/or Content are appropriate for his/her child.
(c) KCR has the right to delete your profile (or any portion thereof), to suspend or terminate your Membership and/or to refuse any and all current or future use of the KCR Services (or any portion thereof), without warning, if we believe that you are:
i. under 14 years of age,
ii. under 18 years of age and you represent yourself as 18 or older or do not have parental consent, or
iii. you are over 18 years of age and represent yourself as under 18 years of age.
(d) KCR also has the right to delete your profile (or any portion thereof), to suspend or terminate your Membership and/or refuse any and all current or future use of the KCR Services (or any portion thereof) if you provide any information that is untrue, inaccurate, not current or incomplete, or KCR has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete.
(e) Use of the KCR Services and registration to become a Member for the KCR Services is void where prohibited.
(f) Use of the KCR Services and registration to become a Member for the KCR Services is confirmation of your age and acceptance of the terms and conditions as set out in this Agreement.
- Term: This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the KCR Services or are a Member, and shall remain in effect even after your Membership is terminated.
- Termination of Membership: You may terminate your Membership at any time, for any reason, by following the instructions on the Member’s Account Settings page. KCR may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability.
- Fees: You acknowledge that KCR reserves the right to charge for any portion of the KCR Services and to change its fees (if any) from time to time in its discretion. If KCR terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of fees or payments (if any).
- Access to KCR Services: You are responsible for obtaining and maintaining access to the KCR Services.
(a) Access may require the payment of fees to third parties (e.g. Internet service providers). You are responsible for those fees, including fees associated with the display or delivery of advertisements.
(b) Access may also require certain equipment. You are responsible for all equipment necessary to access the KCR Services.
- Prohibited Content – Limitation of Liability: Please be careful when choosing to post information on or through the KCR Services or otherwise provided to Users. Your KCR profile may not include any form of Prohibited Content, as outlined in Section 16(d), below. Despite this prohibition, information, materials, products or services provided by other KCR Members (for instance, in their profile) may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and KCR assumes no responsibility or liability for this material. If you become aware of misuse of the KCR Services by any person, please click on the “Contact KCR” link on the KCR Website pages.
- Restriction Violation/Threat: KCR reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, and/or to deny, restrict, suspend or terminate your access to all or any part of the KCR Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. KCR expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the KCR Services if KCR determines, in its sole discretion, that you (i) have violated this Agreement, (ii) pose a threat to KCR and/or its Users and/or (iii) have violated any applicable law.
- Access to, and Preservation & Disclosure of Information: You acknowledge and expressly consent to KCR accessing, preserving, and disclosing your account information (including but not limited to your Registration Information) and your Content if required to do so by law or in the good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property, or personal safety of KCR, its Users and the public.
- Passwords & Security: When you register to become a Member you will be asked to choose a “User ID” and password.
(a) You are solely responsible for any and all use of your Account.
(b) You are solely and entirely responsible for maintaining the confidentiality of your password.
(c) You agree not to use the account, User ID or password of another Member at any time and not to disclose your password to any third party.
(d) You agree to notify KCR immediately if you suspect any unauthorized use of your account or access to your password.
(e) You agree to log out of your account at the end of each session.
- Usage Rules – You understand that the KCR Services and the software embodied within the KCR Services use a security framework that uses technology that protects digital information and that use of the KCR Services and materials and Content made available by or through the KCR Services is subject to certain rules (“Usage Rules“) established by KCR and its licensors and content providers.
(a) You agree to comply with such Usage Rules, as established from time to time, and you agree not to violate, or attempt to violate any of the Usage Rules.
(b) You agree not to attempt to, or assist another person in attempting to circumvent, override, reverse engineer, decompile, disassemble or otherwise tamper with any of the security components related to such Usage Rules for any reason whatsoever.
(c) You agree that the Usage Rules may be controlled and monitored by KCR for compliance purposes, and KCR reserves the right to enforce the Usage Rules with or without notice to you.
(d) You agree not to modify or attempt to modify any software provided to you by KCR or any of its licensors or content providers (the “Software“) in any manner or form, or to use modified versions of the Software for any purposes including obtaining unauthorized access to the KCR Services. Violations of system of network security may result in civil or criminal liability.
(e) Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the KCR Services, in whole or in part, is strictly prohibited.
- Commercial Use by Members: The KCR Services are for the use of Members and may be used for promotional and commercial purposes.
(a) KCR reserves the right to remove commercial content in its sole discretion.
(b) Illegal and/or unauthorized use of the KCR Services, including collecting User IDs, and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the KCR Website, or employing third party promotional sites or software to promote profiles for money, is prohibited.
(c) Commercial advertisements, affiliate links, and other forms of unauthorized solicitation may be removed from Member Profiles (i.e. the profiles created and maintained by Members) without notice or explanation and may result in termination of Membership privileges. KCR reserves the right to take appropriate legal action for any illegal or unauthorized use of the KCR Services.
- Proprietary Rights:
(a) User Content – Ownership – KCR does not claim any ownership rights in Content that you post on or through the KCR Services. After displaying or publishing (“posting“) your Content to the KCR Services, you continue to retain any/all rights that you may have in your Content, subject to the limited license described in subsection (b).
(b) User Content – Licence to KCR – By posting Content on or through the KCR Services, you hereby grant to KCR a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the KCR Services, including, without limitation, distributing part or all of the KCR Website in any media formats and through any media channels. Notwithstanding the foregoing, Content marked “private” will not be distributed outside the KCR Website.
The licence you grant to KCR does not grant KCR the right to sell or otherwise distribute your Content outside of the KCR Services. After you remove your Content from the KCR Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license will terminate. If after we have distributed your Content outside the KCR Website you change the Content’s privacy setting to “private,” we will cease distribution of such “private” Content outside the KCR Website as soon as practicable after you make the change.
The licence you grant to KCR is non-exclusive (meaning you are free to license your Content to anyone else in addition to KCR) and royalty-free (meaning that KCR is not required to pay you for the use on the KCR Services of the Content that you post), sub-licensable (so that KCR is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the KCR Services), and worldwide (because the Internet and the KCR Services are global in reach).
(c) User Content – Representations, Warranties & Covenants – You represent, warrant and covenant that:
i. you own any/all Content posted by you on or through the KCR Services or otherwise have the right to grant the license set forth in this Section 14;
ii. the posting of your Content on or through the KCR Services does not violate any applicable rights or laws, including but not limited to the privacy rights, publicity rights, intellectual property rights, copyrights, contract rights or any other rights of any person or entity; and
iii. you will pay for all royalties, fees, and any other monies owing to any person or entity by reason of any Content posted by you on or through the KCR Services.
(d) KCR Content – Ownership – You acknowledge and expressly agree that the KCR Services contain Content owned by KCR and/or its licensors (“KCR Content“), and is protected by applicable intellectual property and other laws (including but not limited to copyright, trademark, patent, trade secret, industrial secret, and other laws) and that KCR owns and retains all rights in the KCR Content and the KCR Services. Except as provided for in this Agreement, you shall not modify, rent, lease, loan, sell, distribute or create derivative works based on the KCR Services, in any manner, and you shall not exploit the KCR Services in any unauthorized way whatsoever (including but not limited to, by trespass or burdening network capacity). Further, you expressly acknowledge that the KCR Content (which includes but is not limited to its embedded players and other concepts, products and/or the KCR Services) is patent-pending worldwide.
(e) KCR Content – Licence from KCR – KCR hereby grants you a limited, revocable, non-sub-licensable license to reproduce and display the KCR Content (excluding any software code) solely for your personal use in connection with viewing the KCR Website and using the KCR Services.
(f) Content of Others – The KCR Services contain Content of Users and other KCR licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the KCR Services.
- Technical Allowances: You understand and acknowledge that the technical processing and transmission of the Service, including your Content, may involve (i) transmissions over various networks and/or (i) changes to conform and adapt to technical requirements of connecting networks or devices. KCR performs technical functions necessary to offer the KCR Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the KCR Services. You agree to allow KCR to perform such technical functions.
(a) KCR may reject, refuse to post or delete any Content posted by you for any or no reason, including Content that, in the sole judgment of KCR, violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity.
(b) KCR assumes no responsibility for monitoring the KCR Services for inappropriate Content or conduct and does not generally pre-screen or post-screen User Content. If at any time KCR chooses, in its sole discretion, to monitor the KCR Services, KCR nonetheless assumes no responsibility for the Content and KCR will have no obligation to modify or remove any inappropriate Content and will have no responsibility for the conduct of the User submitting any such Content.
(c) You are solely and entirely responsible for the Content that you post on or through any of the KCR Services and for any material or information that you transmit to other Members and for your interactions with other Users.
(d) Except as otherwise expressly agreed to by KCR, you are solely and entirely responsible for ensuring that all Content that you post on or through any of the KCR Services, and any material or information that you transmit to other Users, conforms to all applicable data protection and privacy laws, including ensuring that you have obtained the prior consent of any and all individuals whose personal information you use and/or disclose on or through KCR.
(e) You are solely and entirely responsible for, and bear all risks associated with, evaluating and using any Content, including any relying on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by KCR or submitted to KCR that is available on any part of the KCR Services.
- Prohibited Content: KCR reserves the right to investigate and/or to take appropriate legal action against anyone who, in KCR’s sole discretion, violates this provision including, without limitation, removing the offending Content from the KCR Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of KCR:
(a) is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(b) harasses or advocates harassment of another person;
(c) exploits people in a sexual or violent manner;
(d) contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
(e) solicits personal information from anyone under 18;
(f) harms minors in any way;
(g) publicly posts information that poses or creates a privacy or security risk to any person or entity;
(h) constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;
(i) constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;
(j) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
(k) contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page);
(l) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
(m) solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
(n) involves commercial activities and/or sales without prior written consent from KCR such as contests, sweepstakes, barter, advertising, or pyramid schemes;
(o) includes a photograph or video of another person that you have posted without that person’s consent;
(p) for band, comedy, filmmaker and other profiles, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile;
(q) violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person; or
(r) promotes propaganda and/or symbols of organizations which are unconstitutional or illegal in your country.
- Prohibited Activity: KCR reserves the right to investigate and take appropriate legal action against anyone who, in KCR’s sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
(a) criminal or tortious activity, including child pornography, corruption of minors, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, “spamming”, “spimming”, sending of viruses or other harmful files, infringement of intellectual property rights (including but not limited to copyright, trademark and patent infringement), or theft of trade or industrial secrets;
(b) uploading, posting, emailing, transmitting or otherwise making available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(c) uploading, posting, emailing, transmitting or otherwise making available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of illegal solicitation. You may, however, make legally compliant solicitations in those areas (such as shopping rooms) that are designated for such purpose;
To protect our Members from such advertising or solicitation, KCR reserves the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which KCR deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email, instant messages or other unauthorized commercial communications of any kind through the KCR Services, you acknowledge that you will have caused substantial harm to KCR, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay KCR $50 (CDN) for each such unsolicited email or other unauthorized commercial communication you send through the KCR Services;
(d) activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
(e) circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the KCR Services;
(f) forging headers or otherwise manipulating identifiers in order to disguise the origin of any Content transmitted through the KCR Services;
(g) covering or obscuring the banner advertisements on your personal profile page, or any KCR page via HTML/CSS or any other means;
(h) any automated use of the system, including but not limited to, using scripts to add friends or send comments or messages;
(i) interfering with, disrupting, or creating an undue burden on the KCR Services or the networks or services connected to the KCR Services;
(j) impersonating or attempting to impersonate another Member, person or entity or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
(k) for profiles containing an KCR player, copying the code for your KCR Player and embedding it (or directing others to embed it) anywhere other than your profile on KCR, unless expressly permitted to do so;
(l) using the account, User ID, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
(m) selling or otherwise transferring your profile;
(n) using any information obtained from the KCR Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
(o) uploading, posting, emailing, transmitting or otherwise making available an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the KCR Services on behalf of that person, such as placing unauthorized commercial content on your profile; or
(p) using the KCR Services in a manner inconsistent with any and all applicable laws and regulations.
- Protecting Copyrights and Other Intellectual Property: KCR respects the intellectual property of others, and requires that our Users do the same.
(a) You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. KCR has the right to terminate the Membership of infringers.
(b) If you believe your work has been copied and/or posted on or through the KCR Services in a way that constitutes infringement of any of the rights listed in subsection (a), please notify KCR’s Compliance Officer of the potential/claimed infringement, and include the following information:
i. identification of the work claimed to have been infringed, or, if multiple works are covered by a single notification, a representative list of such works;
ii. identification of the country to which your copyright, trademark or other intellectual property right applies;
iii. identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the KCR Services (providing the title used to identify the work and the full URL(s) of the claimed infringing material satisfies this requirement);
iv. information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
v. information to be given to the alleged infringer so that s/he may contact you directly in order to resolve the complaint (email address is preferred);
vi. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
vii. a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
viii. your physical or electronic signature.
(c) Infringement complaints and notices should be sent to KCR’s Compliance Officer, as follows:
KAWARTHA COTTAGE RENTALS
94 Armour Blvd
Toronto, Ontario, Canada
(d) KCR provides certain online tools and technologies. You hereby acknowledge and expressly agree to the use of such tools and technologies in regard to your posted Content.
- Disputes between Members: You are solely responsible for your interactions with other KCR Members. KCR reserves the right, but has no obligation, to become involved with disputes between you and other Members.
- Disclaimers: Your use of the KCR Services is at your sole risk.
(a) User Content – KCR is not responsible for and makes no warranties, express or implied, as to any Content posted by Users (“User Content“) or the accuracy and reliability of any User Content posted on or through the KCR Services, whether caused by Users or by any of the equipment or programming associated with or utilized in the KCR Services. User Content in now way reflects the opinions, views or policies of KCR. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE KCR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(b) User Conduct – KCR is not responsible for the conduct, whether online or offline, of any User of the KCR Services.
(c) Links, Websites & Resources – KCR, Members and/or third parties may provide links to other World Wide Web sites or resources (such as, for example, eBooks provided by KCR). Inclusion of any link or Member or resource on the KCR Services does not imply the approval or endorsement of KCR. When you access such sites or resources, you do so at your own risk. KCR has no control over such sites and resources and such websites and resources are not necessarily investigated, monitored or checked for accuracy or completeness by KCR. You acknowledge and expressly agree that KCR is not responsible for the availability of such external sites or resources, and that KCR does not endorse and is not responsible or liable for any Content, advertising, products, opinions or other materials on, or available from or through such sites or resources. You further acknowledge and expressly agree that KCR is not 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 such Content, goods or services available on or through any such site or resource.
(d) Third Party Advertisers & Applications – KCR, Members and/or third parties may create and or otherwise provide advertisements and applications to Users. KCR takes no responsibility for Member or third party advertisements or applications that are created and/or posted on or through the KCR Services, nor does it take any responsibility for the goods or services provided by its advertisers. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the KCR Services, including payment and delivery of related goods or services, and any other terms, representations, warranties or conditions associated with such dealings, are solely between you and such advertiser. You agree that KCR is not responsible or liable for any loss or damage of any sort incurred as a result of such dealings or as a result of the presence of third party advertisers on the KCR Services.
(e) Communications – KCR assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User communication.
(f) Technical Issues / Traffic Congestion – KCR is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the KCR Services or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the KCR Services.
(g) Damages – Under no circumstances shall KCR be responsible for any loss or damage, including personal injury or death, resulting from use of the KCR Services, attendance at an KCR event, from any User Content posted on or through the KCR Services, or from the conduct of any Users of the KCR Services, whether online or offline.
(h) Merchantability & Particular Purposes – The KCR Services are provided “as- is” and “as available” and KCR expressly disclaims any and all warranties, representations and conditions of any kind, whether express or implied, including but not limited to any/all implied warranties, representations and conditions of merchantability, fitness for a particular purpose and non-infringement. KCR cannot guarantee and does not promise any specific results from use of the KCR Services.
(i) Advice & Information – No advice or information, whether oral or written, obtained by you from KCR or through the KCR Services shall create any new warranty, representation or condition.
(j) General – KCR MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
- Limitation of Liability: YOU UNDERSTAND AND EXPRESSLY AGREE THAT IN NO EVENT SHALL KCR BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFIT , GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF KCR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (i) THE USE OR THE INABILITY TO USE THE KCR SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, KCR’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO KCR FOR THE KCR SERVICES DURING THE TERM OF MEMBERSHIP.
- Jurisdictional Exclusions & Limitations: SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS AND CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 22 AND 23 MAY NOT APPLY TO YOU.
- International Use: Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from Canada or the country in which you reside.
Software available in connection with the KCR Services (the “KCR Software”) is also subject to Canada’s export controls. No Software may be downloaded from the KCR Services or otherwise exported or re-exported in violation of Canadian export laws. Downloading or using the KCR Software is at your sole risk.
- Disputes – Governing Law, Jurisdiction & Attornment: The Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario, without regard to its conflict of law provisions. You expressly agree to submit to the exclusive jurisdiction of the courts located within the Province of Ontario to resolve any dispute arising out of the Agreement or the KCR Services.
EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OR TO PARTICIPATE IN CLASS PROCEEDINGS IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
- Indemnity: You agree to indemnify and hold KCR and its subsidiaries, affiliates, directors, officers, agents, partners and employees harmless from any loss, liability, claim, or demand, including reasonable legal fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the KCR Services, your use of the KCR Services, your connection to the KCR Services, your violation of this Agreement, or your violation of any rights of another.
- No Resale of KCR Services: You agree not to reproduce, duplicate, copy, sell, trade, or exploit for any commercial purposes, any portion of the KCR Services (including the User ID and/or password associated with your account), use of the KCR Services, or access to the KCR Services.
(a) Independent Legal Advice – The parties each acknowledge having read, understood and agreed with all of the provisions of this Agreement and have signed it of their own free will and without any form of duress being exerted upon any of them by the others, and each acknowledge having had the opportunity to obtain independent legal advice with respect to it and that they have each either received or expressly waived same.
(b) Acceptance – This Agreement is accepted upon your use of the KCR Website or any of the KCR Services and is further affirmed by you by completing the registration process and becoming a Member.
(c) Language – The parties hereto have agreed that this Agreement and any of its accessories, including notice, be written in the English language. / Les parties aux présentes ont exigé que ce contrat et ses accessoires, y compris tout avis, soient rédigés en anglais.
(d) Waiver – Neither you nor KCR is to be deemed to have waived the exercise of any right that it holds under this Agreement, at law or in equity, unless such waiver is made in writing. No waiver made with respect to any instance involving the exercise or non-exercise of any such right is to be deemed to be a waiver with respect to any other instance involving the exercise or non-exercise of the right or with respect to any other such right.
(e) Severability – In the event any provision of this Agreement, as amended from time to time, is deemed invalid or void, in whole or in part, by any court of competent jurisdiction, such invalidity or unenforceability attaches only to such provision or part thereof and the remaining terms and provisions of this Agreement remain in full force and effect.
(f) No Right of Survivorship and Non-Transferability – You agree that your KCR Account/Membership is non-transferable and any rights to your User ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all Content permanently deleted.
(g) Statute of Limitations – You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or related to this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- Acknowledgement / Entire Agreement: You ACKNOWLEDGE and expressly agree that you have read this Agreement, understand it and agree further to be bound by its terms and conditions, as amended from time to time. Further, You ACKNOWLEDGE and expressly agree that this instrument is the complete and exclusive statement of the agreement between you and KCR, which supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject-matter of this Agreement.
Please CONTACT KCR if you have any questions, comments or concerns regarding this Agreement.