(“Terms” or “Agreement”) is a legal contract between you and KONTACT(“we”, “our” and” us ”), governing your use of the various mobile or web services or mobile or web software owned, controlled or offered by KONTACT (collectively, the “Services”). By using the Services, you agree to the Terms. If you do not agree with any of the Terms, you may not use the Services.
You acknowledge and agree that this contract is only between you and KONTACT and not any of KONTACT’s partners, distributors, promoters or service providers (collectively, “Distributors”). Should you have any issue or claim with respect to the Services, KONTACT, and not its Distributors, will be solely responsible for addressing the issue or claim. If you have obtained the Services from one of KONTACT’s Distributors, you agree that any such Distributor will have no obligation or responsibility to provide you any warranty, maintenance and support services with respect to the Services.
WE WANTED TO LET YOU KNOW THAT THE TERMS INCLUDE AN ARBITRATION CLAUSE IN SECTION 15(B) THAT REQUIRES ANY DISPUTES, EXCEPT FOR ANY DISPUTES REQUIRING EQUITABLE OR INJUNCTIVE RELIEF, TO BE RESOLVED BY BINDING ARBITRATION. YOU AND SECURE ALSO AGREE TO WAIVE THE RIGHT TO JURY TRIALS, CLASS ACTIONS AND CLASS-ACTION WIDE ARBITRATION.
1. Who Can Use the Services
You must be of the Minimum Age to use the Services. “Minimum Age” means 18 years. However, if law requires that you must be older in order for KONTACT to lawfully provide the Services to you then the Minimum Age is such older age.
By using any of the Services, you state that:
a. You are accepting this Agreement and you confirm that you have the right and capacity to enter into this Agreement;
b. You will comply with these Terms and all applicable local, provincial, state, national, and international laws, rules, and regulations; and
c. If you are using the Services on behalf of a business or some other entity, you state that you are authorized to grant all licenses set forth in these Terms and to agree to these Terms on behalf of the business or entity.
2. Your Rights to Use the Services
KONTACT grants you an individual, worldwide, royalty-free, non-transferable, non-exclusive, revocable, non-sublicensable license (the “License”) to:
a. Access and use the Services for (i) the prevention of identity theft, hacking, malicious attack or espionage; (ii) the protection of your personal privacy rights; and (iii) the secure operation of your legitimate personal or business affairs, and not for any illicit, illegal or criminal use;
b. Download, install and use the services on one mobile device (e.g., cell phone), which natively executes an operating system supported by KONTACT, and that you own or control for your non-commercial use or internal business use.
The License lets you enjoy the Services in a way that these Terms and our other policies, such as our Privacy Policy allow.
You agree that any software that we provide you may automatically download and install upgrades, updates or other new features. You may be able to adjust these automatic downloads through your mobile device settings. These updates and upgrades are designed to improve and enhance our Services and can include bug fixes, enhancements and new modules.
You may not sell, rent, lease, assign, distribute, copy, modify or host any part of our Services. As well, you cannot adapt, merge, make derivative works of, disassemble, decompile, reverse compile, attempt to discover the source code or reverse engineer any part of the Services, except to the extent these restrictions are expressly prohibited by applicable law.
3. Rights to Content
Some of our Services let you create, upload, send, receive and store user data. When you do so, you keep the ownership rights you had in the data to begin with. WE DO NOT USE, COPY OR MODIFY USER DATA.
You are responsible for the content that you send through the Services.
4. Privacy
Your privacy matters to us. You can learn more about how we handle your information when you use our Services by reading our Privacy Policy. KONTACT’s Privacy Policy is hereby incorporated into this Agreement by reference.
5. Non-Permitted Use
You may not use the Services to create, upload, send, receive, or store content that:
a. Is false, intentionally misleading, illegal or promotes an illicit, illegal or criminal activity or that impersonates any other person or entity, including KONTACT;
b. Violates or infringes any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
c. Is bullying, harassing, abusive, threatening, vulgar, obscene, offensive, libelous, defamatory, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;
d. Is harmful to minors in any way or targeted at persons under the age of 13;
e. Spams or solicits KONTACT users to purchase anything; or
f. Requests any form of identification or illegal content from KONTACT users.
You agree not to use the Services to:
a. Use branding, logos, designs, photographs, videos, or any other materials used in our Services;
b. Remove, circumvent, disable, damage or otherwise interfere with security features of the Services, including any technical measures we may use to prevent or restrict unauthorized access to the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services;
c. Intentionally interfere with or damage operation of the Services or any user’s enjoyment of them, including by uploading or disseminating viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
d. Use any robot, spider, crawler, scraper or other automated means or interface to access the Services or extract other user’s information without our express written permission;
e. Attempt to gain unauthorized access to the Services or cloud or networks connected to the Services (e.g. through password mining);
f. Use the Services or any content on the Services for any commercial purposes without our consent;
g. Interfere, disrupt, negatively affect, or inhibit other KONTACT users from fully enjoying the Services;
h. Undertake or facilitate any illicit, illegal or criminal activity; or
i. Encourage or promote any activity that violates these Terms.
Violation of any of the terms of Section 5 is cause for the immediate deactivation and deletion of your account without notice, and a permanent ban on the future purchase of any of KONTACT’s products or services.
6. Your Account
KONTACT will not be liable for any damages or liability resulting from your account. You are responsible for anything that happens in your account, so please keep it secure. Keeping a strong password that you haven’t used for other accounts is one good way to do this.
Also, you agree that you will not:
a. Create another account if we’ve disabled your account;
b. Buy, sell, transfer, rent lease or allow access to your KONTACT account or username; or
c. Log in or try to log in to access the Services through unauthorized third-party applications or clients.
If you think someone has gained access to your account, please contact us immediately through our KONTACT support module.
7. Modifying the Services and Termination
We are always improving our Services and creating new ones. We may add or remove features, products or functionality, and we may also suspend or stop the Services at any time without notice.
While we hope you remain a life-long KONTACT user, you can terminate these Terms at any time and for any reason by deleting your account.
KONTACT may also terminate these Terms with you at any time, for any reason, and without advanced notice. That means we may stop providing you with any Services, or impose new or additional limits on your ability to use the Services. For example, we may deactivate your account due to prolonged inactivity or a breach of these Terms.
We will not be liable to you for terminating this Agreement, including for termination of your KONTACT account or deletion of your content. No matter who ends this Agreement, you and KONTACT will continue to be bound by Sections 8, 10-16.
KONTACT may modify these Terms of Service from time to time. Any and all changes to this Agreement will be posted on the KONTACT site, and you agree to be bound by any changes to these Terms, or by any additional terms and conditions, when you continue to use the Services after those changes are posted.
8. Additional Terms for Specific Services
Since we have a growing number of Services, we sometimes need to describe additional terms for specific Services. Those additional terms and conditions, shall be made available with the relevant Services, then become part of your Agreement with us if you use those Services.
9. Indemnity
You agree, to the extent permitted under applicable law, to defend, indemnify and hold harmless KONTACT, its shareholders, subsidiaries, affiliates and their directors, officers, employees, contractors, agents, third-party partners, and suppliers (the “KONTACT Group”) from and against any claims, suits, losses, damages, obligations, liabilities, costs, and expenses (including legal fees) brought by third parties resulting from or relating to: (i) your use of and access to the Services; (ii) your user content; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right, or (iv) your violation of these Terms. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that you are required to indemnify and you agree to cooperate with our defence of these claims.
You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any claim falling under this section once we learn of it. This defense and indemnification obligation will survive these Terms and your use of the Services.
10. Disclaimers
THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND KONTACT EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, STABILITY, ACCURACY, OR NONINFRINGEMENT. THE KONTACT GROUP IS NOT RESPONSIBLE FOR ANY THIRD PARTY CONDUCT OR USER CONTENT ON ITS SERVICES.
YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE AND FOREVER DISCHARGE KONTACT FROM ANY AND ALL CLAIMS, DEMANDS, AND RIGHTS OF ACTION, WHETHER NOW KNOWN OR UNKNOWN, THAT RELATE TO ANY INTERACTIONS WITH, OR ACTS OR OMISSION OF, THE SERVICES AND KONTACT.”
11. Limitation of Liability
You agree, to the extent permitted under applicable law, to defend, indemnify and hold harmless KONTACT, its shareholders, subsidiaries, affiliates and their directors, officers, employees, contractors, agents, third-party partners, and suppliers (the “KONTACT Group”) from and against any claims, suits, losses, damages, obligations, liabilities, costs, and expenses (including legal fees) brought by third parties resulting from or relating to: (i) your use of and access to the Services; (ii) your user content; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right, or (iv) your violation of these Terms. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that you are required to indemnify and you agree to cooperate with our defence of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any claim falling under this section once we learn of it. This defense and indemnification obligation will survive these Terms and your use of the Services.
12. Choice of Law & Exclusive Venue
This Agreement shall be construed and governed exclusively by the laws in force in Ontario and the laws of Canada applicable therein, and the courts of Ontario (and the Federal Court or Supreme Court of Canada, if necessary), and except as set out in Section 14(b) hereof, shall have exclusive jurisdiction to hear and determine all disputes arising hereunder. Except as provided in Section 14(b), each of the parties hereto irrevocably attorns to the jurisdiction of said courts, consent to the commencement of proceedings in such courts and waive any right to a jury trial. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, any forum non conveniens defence to the maintenance of such action or proceeding in any such court. This provision shall not be construed to affect the rights of a party to this Agreement to enforce a judgment or award outside said province, including the right to record and enforce a judgment or award in any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13. Resolution of Disputes
a. Limitation period. YOU AND KONTACT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED
b. Mandatory Arbitration. Except for any matter that requires equitable or injunctive relief, all disputes arising out of or in connection with this Agreement shall be referred to and finally resolved by a single arbitrator (the “Arbitrator”) under the Arbitration Act of Ontario. The decision of the Arbitrator on all issues or matters submitted to the Arbitrator for resolution shall be conclusive, final and binding on all of the parties hereto. The arbitrator shall be appointed by agreement between the parties, or in default of agreement, the arbitrator shall be appointed by a judge of the Ontario Superior Court of Justice, upon the application of any party to this Agreement. The Arbitrator shall determine who shall bear the costs of arbitration pursuant to this section. The place of the arbitration shall be in Toronto, Ontario.
c. Class Action Waiver. THE ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING AND MAY NOT AWARD CLASS-WIDE RELIEF.
d. Confidentiality. No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to a court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
14. Severability
If any part of these Terms is found to be unenforceable, then that provision will be modified to the extent necessary to render it enforceable without losing its intent or severed from these Terms if no such modification is possible and not affect the validity or enforceability of the remaining Terms. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
15. Final Terms
All rights not granted to you are reserved by the KONTACT Group and all intellectual property in the Services is owned by us. These Terms are the final, complete and exclusive Agreement between you and KONTACT and supersede all prior Agreements between us.
If we don’t enforce a part of these Terms, it will not be considered a waiver. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our consent. We may assign the Terms without restriction in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or bankruptcy or other operation of law, without your consent.
If we need to contact you about these Terms, you: (1) agree to receive electronic messages from us; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other messages we send to you electronically satisfy all legal requirements as if they were in writing. We agree that these Terms and all related documents are in English.