By subscribing to receive Kepler Solutions services, you agree to these terms. Please read them carefully as they set out the legal agreement between you, the subscriber, and Kepler Solutions.
By using our keplersolutions.ca internet website and any of its associated services, tools, applications, and features, you indicate your unconditional acceptance of the following Terms of Service. Please read them carefully, as they may have changed since your last visit. These Terms of Service apply to all keplersolutions.ca online services and features, including without limitation the audio restoration, audiobook services, closed captioning, transcript, Content Management Solution (“CMS”), and applications unless otherwise indicated.
1. Scope of Service
Kepler Solutions (“Kepler Solutions” or “we”) maintains this website as a service to clients (“Client”) who visit and use the site for transcription and/or captioning services subject to these Terms of Service. The terms “Website” or “Work” includes all services and features available on keplersolutions.ca, including our content management solution. The Client is responsible for obtaining any equipment and Internet service necessary to access our website. The Client agrees to pay Kepler Solutions for any and all transcription and/or captioning work or other services performed according to the rates on keplersolutions.ca promptly and in full. Client failure to pay promptly may result in a discontinuation of Client services, including access to download Work and access to Kepler Solutions API. The client does not own the Work and is prohibited from using the Work in any way until payment for services has been rendered. Kepler Solutions may alter, suspend, or discontinue this website in whole or in part, at any time and for any reason, without notice. The website may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons.
The Client is fully aware and agrees that it is responsible for an accurate and truthful description of the audio contained in its Source Material. Regardless of the Client’s description of the Source Material, in the event its description is inaccurate, the appropriate classification will be assessed by Kepler Solutions, including rates. If Kepler Solutions determines that its classification of any Source Material is different than the Client’s, it will notify the Client before proceeding with the Work.
The Client also agrees and understands that audio characteristics might increase the price. Kepler Solutions provides a high accuracy rate for good audio. Good audio is any media that is clearly recorded in a controlled environment with one person talking at a time with minimal background noise and no media defects. The format must be recorded digitally or transferred to digital format for use with our CMS. The Client understands that poor duplication procedures can lead to degradation of the original media file and could result in a higher price, depending on the degree of degradation. While Kepler Solutions does its best to get the most accurate transcript possible regardless of the quality of audio, the client should be aware that any audio that does not meet the previous criteria may impact the quality of the transcript and cause it to drop in accuracy.
Kepler Solutions defines accuracy in the following ways for good audio: (1) words are spelled correctly; (2) phrases and sentences make sense as a standalone document, and (3) text is near exact replication of spoken words. We do not include unintended speech such as “ums”, “uhs”, stuttered speech, or difficult proper nouns.
The burden of proof rests with Client and Client realizes and accepts that judgment calls have to be made on punctuation, spelling, grammar, etc. Additionally, spoken language consists of run-on sentences and other grammatically incorrect text. Kepler Solutions does not correct grammar or proofread material – it only transcribes what is on the source media. If for some reason Client claims that any transcript fails to comply with acceptable accuracy levels, Client has thirty (30) days to notify Kepler Solutions so that it can examine the discrepancy. At such a time, Kepler Solutions shall, at its option, (a) correct the deficiencies leading to such failure and re-deliver such transcript no later than thirty (30) days following its receipt of notice of such non-compliance from Client, or (b) provide Client with a complete refund of all fees paid with respect to such Deliverable. Notwithstanding anything to the contrary in this Agreement, the foregoing remedy shall be Client’s sole and exclusive remedy for any breach of expected transcript quality.
Client agrees and understands that caption pricing is based on a bundled transcription basis and that transcription rates are determined separately, based on the above criteria. Kepler Solutions produces captions following standards for the “borrowing” method, resulting in evenly spaced text appearance for improved reading experience, rather than every word showing up exactly when spoken. Client understands that Kepler Solutions will alter caption formats and appearances within the standard specifications of the desired file output format. Additional customization will be performed at an additional fee if deemed possible by Kepler Solutions. In the event that Client uses a previously produced transcript for caption production, Kepler Solutions will not correct grammar or proofread material. It is solely responsible for the text alignment and caption file production process.
All Source Materials are subject to Kepler Solutions’ acceptance, which it may exercise at its sole and absolute discretion. Kepler Solutions has the right to reject, in its sole and absolute discretion, any Source Material for any reason whatsoever, including without limitation that it is considered to be of such poor quality that 1. transcription is not possible or 2. the project is beyond Kepler Solutions resources. If the audio quality of any Source Material appears to be different than the quality represented by Client, Kepler Solutions will contact Client and discuss this discrepancy and a possible increased rate. If the parties are unable to agree on the appropriate rate, Kepler Solutions may decline to work on the project and, in such case, all media files will be returned and no Work will be performed by Kepler Solutions.
Kepler Solutions will notify Client of any unanticipated issues with source media files before completing the Work. This applies to files that have a large number of unexpected inaudible or perceived media file corruptions.
Client agrees to not hold Kepler Solutions liable for any loss or damages to or destruction of any source media files, including those that may occur in shipping or transmission electronically.
If deemed necessary, Client agrees to pay all shipping costs for submission and return of media files. Kepler Solutions offers Client different shipping options, but when one is not selected, Kepler Solutions will send Source Materials back to Client in the most cost-effective way possible (which will likely be the slowest way possible).
Client acknowledges that Kepler Solutions bills per hour of recorded audio and not on page count, number of characters, or work hours. Client agrees to pay the rates prevailing at the time the Work is requested as set forth in the Rates section of Kepler Solutions’ website. Payment is due upon acceptance of the proposed invoice in the My Account section of the website. Payment is due within 30 days for all check payments. Client further agrees that Kepler Solutions may hold any source media files or output files until it receives payment in full from Client for any Work related to such source files.
This agreement commences as of the date of the first online registration process executed by the Client and terminates upon the termination date of the last service contract in effect between the parties. The initial term (the “Term”) of each service contract will be for a period of twelve (12) months from the date of commencement of service(s) (as defined in the applicable Terms of Service) unless otherwise agreed to by both the parties.
Kepler Solutions acknowledges that by reason of its relationship with the Client, it may have access to certain information and materials in relation to the Client’s business, products, services, clients, and marketing strategies that are confidential and of substantial value to the Client (“Confidential Information”). Kepler Solutions will not disclose to any third party such Confidential Information revealed to it by the Client unless and until required by court order or other legal processes to do so or such information passes into the public domain. Kepler Solutions reserves the right to maintain and use output materials strictly for internal research and development. Kepler Solutions will store transcription and captioning output files in a secure environment.
Kepler Solutions provides a content generation service (“Service”) more fully described on the website keplersolutions.ca (“Site”). The Service is provided on a pay-per-use or subscription basis under specific subscription plans offered by Kepler Solutions from time to time (“Subscription Plan”) provided through the Site. This Agreement applies to anyone (“You”/”Customer”) who subscribes for or otherwise uses the Services to receive Content (as defined below).
THESE TERMS (WHICH TOGETHER WITH THE SUBSCRIPTION PLAN ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) CONTAIN IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ THEM CAREFULLY BEFORE USING THE SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN SUBSCRIPTION PLAN THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.
2. Content Submitted by Users
b. Liability. We are not responsible or liable for the conduct of users or for views, opinions, and statements expressed in Content submitted for public display through our website, such as through an online discussion forum or chat room. We do not prescreen information posted to online discussion forums or chat rooms. With respect to such forums and chat rooms, we act as a passive conduit for such distribution and are not responsible for Content. Any opinions, advice, statements, services, offers, or other information in Content expressed or made available by users of an online discussion forum or chat room are those of the respective author(s) or distributor(s) and not of Kepler Solutions. We neither endorse nor guarantee the accuracy, completeness, or usefulness of any such Content. You are responsible for ensuring that Content submitted to this website is not provided in violation of any copyright, trade secret, or other intellectual property rights of another person or entity. You shall be solely liable for any damages resulting from any infringement of copyrights, trade secrets, or other intellectual property rights, or any other harm resulting from your uploading, posting or submission of Content to this website.
c. Monitoring. We have the right, but not the obligation, to monitor Content submitted to our website through an online discussion forum or chat room, to determine compliance with these Terms of Service and any other applicable rules that we may establish. We have the right in our sole discretion to edit or remove any material submitted to or posted in any online discussion forum or chat room provided through this website. Without limiting the foregoing, we have the right to remove any material that Kepler Solutions, in its sole discretion, finds to be in violation of these Terms of Service or otherwise objectionable, and you are solely responsible for the Content that you post to this website.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Content” means the requested content made available by Kepler Solutions to Customers through the Service.
“Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Service;
“Fee” means the fees (as specified in the applicable Pay Per Use or Subscription Plan) payable by the Customer to Kepler Solutions for the right to receive access to the Service;
“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs;
“Term” has the meaning ascribed to that term in Section 17; and
“User” means an individual or entity who is authorized by Customer to use the Service, and who has been supplied a user account and password by Customer (or by Kepler Solutions at Customer’s request) for the Service.
4. Website Content
Users have a personal, non-transferable, non-exclusive right to access and use the Content of this website subject to these terms and conditions. The term “Content” means all information, text, images, data, links, software, or other material accessible through the website, whether created by us or provided by another person for display on the website.
The Content may contain typographical errors, other inadvertent errors, or inaccuracies. We reserve the right to make changes to document names and content, descriptions or specifications of products or services or other information without obligation to issue any notice of such changes.
You may view, copy, download, and print Content that is available on this website, subject to the following conditions:
a. The Content may be used solely for internal informational purposes. No part of this website or its Content may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording for any other purpose.
b. The Content may not be modified.
c. Copyright, trademark, and other proprietary notices may not be removed.
5. Prohibited Conduct
By accessing our website or any chat room, online discussion forum, or other service provided through our website, you agree to abide by the following standards of conduct. You agree that you will not, and will not authorize or facilitate any attempt by another person to use our website or any related chat room or online discussion forum to:
a. Transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by Kepler Solutions.
b. Use a name or language that Kepler Solutions, in its sole discretion, deems offensive.
c. Post defamatory statements.
d. Post hateful or racially or ethnically objectionable Content.
e. Post Content that infringes another’s copyright, trademark, or trade secret.
f. Post unsolicited advertising or unlawfully promote products or services.
g. Harass, threaten or intentionally embarrass or cause distress to another person or entity.
h. Impersonate another person.
i. Promote, solicit, or participate in any multi-level marketing or pyramid schemes.
j. Exploit children under 18 years of age.
k. Engage in disruptive activity such as sending multiple messages in an effort to monopolize the forum.
l. Introduce viruses, worms, Trojan horses, and/or harmful code to the website.
m. Obtain unauthorized access to any computer system through the website.
n. Invade the privacy of any person, including but not limited to posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age).
o. Solicit personal information from children under 13 years of age.
p. Violate any federal, state, local, or international law or regulation.
q. Encourage conduct that would constitute criminal or civil offenses.
This website is intended to serve a general audience and does not provide specific features or services targeted at children under age 13. We do not knowingly solicit personal information regarding children under age 13.
7. Intellectual Property Rights
Unless otherwise noted, all Content contained on this website is the property of Kepler Solutions and/or its affiliates or licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. Product names are trademarks or registered trademarks of their respective owners. Content does not include source media files for transcription and/or captioning files.
We do not claim ownership of Content submitted by users without compensation by Kepler Solutions and with the expectation that such Content will be made publicly accessible through our website. By submitting such Content, however, you agree to grant us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to use, distribute, reproduce, modify, adapt, create derivative works from, and publicly perform or display such Content. This license shall remain in effect until we delete the Content from our systems.
Your feedback is welcome and encouraged. You may submit feedback by emailing us at firstname.lastname@example.org. You agree, however, that (i) by submitting unsolicited ideas to Kepler Solutions or any of its employees or representatives, you automatically forfeit your right to any intellectual property rights in these ideas; and (ii) unsolicited ideas submitted to Kepler Solutions or any of its employees or representatives automatically become the property of Kepler Solutions. You hereby assign and agree to assign all rights, title, and interest you have in such feedback and ideas to Kepler Solutions together with all intellectual property rights therein.
8. Copyright Infringement; Notice and Take-Down Procedures
If you believe that any materials on this website infringe on your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following information: (1) identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work; (2) identification of the material that you believe to be infringing and its location, including a description of the material, its website location or other pertinent information that will help us to locate the material; (3) your name, address, telephone number, and email address; (4) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; (5) a statement that the information in your claim is accurate; and (6) a statement that “under penalty of perjury,” you declare that you are the lawful copyright owner or are authorized to act on the owner’s behalf. Our agent for copyright issues relating to this website is Phyllis Bostanci at email@example.com.
In an effort to protect the rights of copyright owners, we maintain a policy for the termination, in appropriate circumstances, of users of this website who are repeat infringers.
When you register to participate in an online discussion forum, chat room, promotion, or other service offered on this website, you may be required to establish a login identifier and a password. You are responsible for protecting your login and password from unauthorized use, and you are responsible for all activity that occurs on your account. You agree to notify us immediately if you believe that your login or password has been or may be used without your permission so that appropriate action can be taken. We are not responsible for losses or damage caused by your failure to safeguard your login and password.
10. Provision and Use of the Service.
10.1 Provision of Service. Conditioned on the provisions in this Section 10 and the other terms and conditions of this Agreement including payment of the applicable fees, Kepler Solutions shall make the Service available to Customer for Customer’s internal business use during the Term. The Customer’s right to use the Service during the Term shall be in accordance with any additional conditions, restrictions, or parameters specified in the applicable Pay-Per-Use or Subscription Plan(s).
10.2 User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
10.3 Content and Content Providers. Kepler Solutions engages independent third-party content providers (“Content Providers”) in order to develop the Content. Content Providers are contractually bound to maintain the confidentiality of all Customer materials that they may receive through Kepler Solutions. The Content provided through the Service is based on Kepler Solutions’ reasonable efforts to engage with responsible and reputable Content Providers at any given time, but all Content is provided on an “As-Is” basis and Kepler Solutions makes no representation or warranty regarding the Content, whether in regard to its accuracy, originality, suitability, non-infringement or otherwise. Kepler Solutions may (but is not required to) submit any Content to a third-party verification tool such as Copyscape to assist in identifying any plagiarism or other intellectual property infringement by Content Providers, but Kepler Solutions accepts no responsibility for either failing to do so or for such third party tools failing to identify any such plagiarism or other intellectual property infringement, and Kepler Solutions accepts no responsibility for any infringement by any Content of any third party rights, whether arising due to intellectual property infringement (including without limitation plagiarism) or otherwise. The Customer is solely responsible for the review and approval of any and all Content prior to use or publication. Customer is solely responsible for any decision or action that it may take, regarding the use, publication, or distribution of any Content, and Kepler Solutions accepts no responsibility for any consequences arising from such use, publication, or distribution by Customer (including without limitation any claim for plagiarism, royalties or otherwise).
10.4 Customer. The Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Kepler Solutions promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
10.5 Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
10.6 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
11. FEES AND PAYMENT.
11.1 Fees. In consideration for the receipt of the Service, the Customer shall pay Kepler Solutions the Fees specified in the applicable Pay Per Use or Subscription Plan. Kepler Solutions reserves the right to amend the fees on not less than 60 days’ advance notice in writing to the Customer.
11.2 Invoicing and Payment. Fees for the Service will be invoiced monthly in advance or otherwise specified in the applicable Subscription Plan. Unless otherwise stated in an invoice, charges are due immediately on the invoice date. The Customer is responsible for maintaining complete and accurate billing and contact information with Kepler Solutions.
11.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Kepler Solutions’ discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
11.4 Taxes. Unless otherwise stated, Kepler Solutions’ fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use, or withholding taxes (collectively, “Taxes“). The customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Kepler Solutions’ net income or property. If Kepler Solutions has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Kepler Solutions with a valid tax exemption certificate authorized by the appropriate taxing authority.
11.5 Audit Rights. Kepler Solutions shall have the right to use the capabilities of the Service to monitor the use of the Service and the Customer’s compliance with this Agreement.
11.6 Suspension of Service. If Customer’s account is overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Kepler Solutions reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
12. OWNERSHIP RIGHTS.
12.1 Rights to Content. Kepler Solutions agrees that all of its rights to Content (including any of its related Intellectual Property Rights) are assigned to the Customer on delivery of such Content to the Customer. All moral rights to Content are waived by Kepler Solutions and the Content Providers.
12.3 Restrictions. Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service; (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service. Customers may use any Content or any excerpt from any Content to promote its products or services. External citation to the Content is prohibited without Kepler Solutions’ express written permission.
12.4 Customer Data. As between Kepler Solutions and Customer, Customer exclusively owns all rights, title, and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under this Agreement. Kepler Solutions shall not access Customer’s User accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request or as necessary for the operation of the Service or billing. Customer hereby grants Kepler Solutions a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Customer Data as reasonably required to provide the Service. The foregoing license shall include the right for Kepler Solutions to use and copy the Customer Data for the purpose of creating aggregated and anonymized statistical analytics with respect to Service use and other Service and User parameters and characteristics (“Aggregated Statistics”). Kepler Solutions shall own all Aggregated Statistics created from the Customer Data.
12.5 Suggestions. Kepler Solutions shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the Service.
13.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Subscription Plan hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
13.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
13.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
13.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
13.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
14. WARRANTIES AND DISCLAIMERS.
14.1 Warranties. Each party warrants that it has the legal power to enter into this Agreement.
14.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, KEPLER SOLUTIONS MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES, AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KEPLER SOLUTIONS FURTHER DISCLAIMS ALL WARRANTIES (I) RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR ANY PORTION THEREOF THAT IS MADE AVAILABLE ON THE SITE; (II) THAT THE CONTENT PROVIDED THROUGH THE SITE WILL BE FREE FROM ERRORS, OMISSIONS, DEFECTS, OR DELAYS IN OPERATION, OR FROM TECHNICAL INACCURACIES OR OTHER ERRORS; (III) THAT THE CONTENT SHALL NOT INFRINGE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY; (IV) THAT THE CONTENT WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT THE SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION.
Under no circumstances will we be liable for any loss or damage caused by your reliance on the information in any Content on this website. It is your responsibility to evaluate the accuracy, completeness, or usefulness of any information, opinion, advice, or other content available through this website. You are responsible for seeking the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice, or other Content.
Indemnification by Customer. By using this website, you agree to indemnify, hold harmless and defend Kepler Solutions from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with your use of this website.
Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend Kepler Solutions, its Affiliates, and its and their directors, officers, employees, and agents (the “Kepler Solutions Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Kepler Solutions Indemnitees alleging that the Customer Data or Customer’s use of the Service infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party (“Customer Claims”) and shall indemnify and hold the Kepler Solutions Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the Kepler Solutions Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (i) Kepler Solutions shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Kepler Solutions shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Kepler Solutions shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Kepler Solutions shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.
16. LIMITATION OF LIABILITY
16.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWO MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
16.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.3 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (III) ANY CLAIMS FOR NON-PAYMENT.
16.4 Beneficiaries. Every right, exemption from liability, release, defense, immunity, and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes, such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities, and waivers.
17. TERM AND TERMINATION.
17.1 Terminate User Access. We may terminate any user’s access to our website, including access to any online discussion forum or chat room, in our sole discretion, for any reason and at any time, with or without prior notice. It is our policy to terminate users who violate these terms and conditions, as deemed appropriate in our sole discretion. You agree that we are not liable to you or any third party for any termination of your access to our website.
17.2 Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect on a month-by-month basis unless otherwise specified in the applicable Subscription Plan. Subject to any minimum term in the applicable Subscription Plan, either party may terminate this agreement without cause on not less than 30 days prior notice, or by otherwise following any termination mechanism provided for within the Service.
17.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer (but not otherwise), Kepler Solutions shall refund Customer any prepaid fees for any periods after the termination of the Agreement.
17.4 Outstanding Fees. Termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Kepler Solutions prior to the effective date of termination or expiration of this Agreement.
17.5 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 7 through 20.
18. GENERAL PROVISIONS.
18.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
18.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries of this Agreement.
18.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Kepler Solutions shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
18.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
18.5 Severability. If any part of these Terms of Service is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
18.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Subscription Plans), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
18.7 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of law rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
18.8 Venue; Waiver of Jury Trial. The provincial and federal courts located in Toronto, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
18.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service Kepler Solutions or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
18.10 Export. Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States, and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Service.
18.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Pay-Per-Use or Subscription Plan, the terms of this Agreement prevail unless otherwise expressly provided for in the applicable Pay-Per-Use or Subscription Plan. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
18.12 No Implied Endorsements. In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Kepler Solutions of that third party or of any product or service provided by a third party. Likewise, a link to any non-Kepler Solutions website does not imply that we endorse or accept any responsibility for the content or use of such a website. Kepler Solutions does not endorse, warrant or guarantee any product or service offered by any third party through an online discussion forum or chat room accessible through this website and will not be a party to or in any way monitor any transaction involving any third party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you are responsible for exercising appropriate judgment and caution.
19. Jurisdictional Issues
We make no representation that information on this website is appropriate or available for use outside Canada. Those who choose to access this website from outside of Canada do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws.
20. Entire Agreement
These Terms of Service constitute the entire agreement between the parties relating to the subject matter herein. We may, at our sole discretion and without notice, revise these terms at any time by updating this posting.