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Kavtek Terms & Conditions

Last Updated: September 19, 2019

 

PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Kavtek Software Corporation. (together with our affiliates, “Kavtek”, “we”, or “us”) provides a proprietary augmented reality mobile application for smart listings & home improvement which is an interactive, reality-based display environment that takes the capabilities of computer-generated display, sound, text and effects to enhance the user’s real-world experience. This software application combines real and computer-based scenes and images to deliver a unified but enhanced view of the world, created, developed, and owned by Kavtek and any fixes, patches, updates, upgrades, enhancements, revisions, or modifications of any kind thereto, and related products, services, content and features through mobile applications (including iOS and Android applications (“Apps”)), and through Kavtek websites, and local country pages (the “Kavtek’s site(s)”). In addition, there are certain Financial Products listed on the mobile Apps, for such products your personal information will be collected (see further Section 3, below), we will forward your information and request directly to the third party Financial Products provider, who will contact you with more information to assist you with a mortgage pre-qualification, and to assist you with any subsequent mortgage application. You can also submit your contact information (see further Section 3, below), and we will forward your information and request directly to the third party Financial Products provider, who will contact you with more information about the requested Financial Product. There are certain Home Services listed on the mobile Apps, for such products, you can submit your contact information (see further Section 3, below), and we will forward your information and request directly to the third party Home Services provider, who will contact you with more information about the requested Home Services. Each of Financial Products provider and Home Service provider are hereinafter individually referred to as a ‘Vendor’, as the case may be, and collectively referred to as the ‘Vendors’. To make these Terms easier to read, the Kavtek Apps and Kavtek sites are collectively called the “Kavtek Service” or “the Services”. By registering as a member or by visiting, browsing, or using the Kavtek Service in any way, you (as a “user”) accept and agree to be bound by these Terms of Service (“Terms”), which forms a binding agreement between you and Kavtek.

PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 23). READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 23 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND KAVTEK WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

 

If you do not wish to be bound by these Terms, you may not access or use the Kavtek Service. Certain elements of the Kavtek Service may be subject to additional terms and conditions specified from time to time; your use of those elements of the Kavtek Service is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.

 

1. Who May Use the Kavtek Service

 

We may, in our sole discretion, refuse to offer the Kavtek Service to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that these Terms comply with all laws, rules and regulations applicable to you, and the right to access and use the Kavtek Service is revoked where these Terms or use of the Kavtek Service is prohibited or conflicts with any applicable law, rule or regulation.

 

2. License to Use the Kavtek Service

 

License. Subject to your compliance with these Terms, Kavtek grants you a limited, non-transferable, non-exclusive, revocable license to access and use the Kavtek Service for your own personal purposes. This license includes the right to view Content (defined below) available on the Kavtek Service. This license is personal to you and may not be assigned or sublicensed to anyone else.

 

Restrictions. Except as expressly permitted in writing by an authorized representative of Kavtek, you will not reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Kavtek Service, nor will you take any measures to interfere with or damage the Kavtek Service. All rights not expressly granted by Kavtek in these Terms are reserved.

 

3. Service Disclaimer

 

By using the Services, you understand and acknowledge that Kavtek is not a provider, vendor or broker of; Financial Products, Home Services, Pre-construction sales, home resale, nor is it a financial advisor, home improvement advisor, or a home sales representative. The information provided on the Apps is provided for information purposes only. Additionally, some of the information about certain Vendor Products appearing on the Apps is provided directly by Vendors, not by Kavtek (“Vendor Content”). As between Kavtek and Vendor, Vendors are exclusively responsible for Vendor Content, and Kavtek shall not be responsible for any Vendor Content or for any inaccuracies in any Vendor Content or any losses, claims, expenses, damages, or liabilities that arise as a result of any Vendor Content. Users are strongly encouraged to use common sense and discretion and to do their research before relying on any of the information provided by the Apps, and to consult an independent competent professional (such as, without limitation, a contractor, real estate agent, mortgage broker, or lawyer) before transacting with any Vendor. We are not responsible for any advice provided by any professional you consult, nor are we responsible for the acts or omissions of any Vendor or User or any actual, failed, proposed or discussed transaction following your use of the Services or any other decisions you make as a result of using the Services. Users hereby understand and agree to use the information contained on these Apps at their own risk.

 

4. Request Forms

 

For certain Financial Products and Home Services (excluding Smart Listings, see Section 5, below), you may need to fill out a request form (“Request Form”) for more information about the Financial Product or Home Services. If you fill out a Request Form you will be asked to provide additional personal information including your name, phone number, location, contact method, and certain details specific to the Financial Product or Home Services you are interested in. We will forward your Request Form to the applicable Vendor, who will then contact you via your preferred contact method. You hereby consent to our collecting and processing the information you provide in your Request Form, and submitting it to the Vendor providing the Financial Product or Home Services you are interested in. 

 

5. Smart Listings

 

By accessing certain smart listings (such as but not limited to pre-construction homes) on the apps your personal information will be collected, we will forward your information and request directly to the third party Financial Products provider, who will contact you with more information to assist you with a mortgage pre-qualification, and to assist you with any subsequent mortgage application. You hereby consent to our collecting and processing the information you provide when signing up, and submitting it to the Vendor providing the Financial Products. 

 

6. User Eligibility for Vendor Products

 

User understands and agrees that any transaction for any Vendor Products is between User and Vendor. Users may not be eligible for any or all of the Vendor Products appearing on the Apps, and the Vendor, and not Kavtek, is responsible for approving or denying any application for any Vendor Products in its sole discretion.

 

 

7. Privacy

 

Our Privacy Policy forms part of these Terms. Please review the Privacy Policy to learn about:

 

    • What information we may collect about you;
    • What we use that information for; and
    • With whom we share that information.

 

8. Membership Requirements Registration

 

To enjoy full access to the Kavtek Service, you must register as a member of the Kavtek Service and enter into a subscription agreement for access to our augmented reality smart listing & home improvement platform, content and features (a “Subscription”). Your Subscription is governed by the Membership Terms. You must provide complete and accurate registration information to Kavtek, complete the Subscription process, and notify us if any of your information changes. If you fail to keep your account information up to date, we may have to suspend or terminate your Subscription.

 

Profile Information and Picture. You may not use someone else’s name, or any name, location, other public profile information or image that violates any third party rights, is against the law, or that is offensive, obscene or otherwise objectionable (in Kavtek’s sole discretion).

 

Account Security. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the Kavtek Service. If you become aware of any unauthorized access to your account, change your password and notify our Support team immediately.

 

9. Membership Structure and Fees

 

Kavtek will provide information on its then-current membership and Subscription requirements on the Kavtek Site and/or by other means through the Kavtek Service. Features and prices are subject to change.

 

10. Sale of Products

 

Kavtek offers links to products from third party affiliates for purchase. These links can be sent to yourself or shared with others, you cannot purchase these products on Kavtek. Unfortunately, the availability of products from third parties cannot be guaranteed. Please note that product, service and other information provided is subject to corrections and changes without notice. 2D, 3D models, graphics and diagrams are for illustrative purposes only and may not accurately reflect actual product and/or availability. Colours, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions. Any reference to the word “partner” should not be interpreted as Kavtek endorsing any Product of any affiliate or Vendor appearing on, advertised on, or linked to our Apps. User understands and agrees that any transaction for any Products is between User and Vendor. Users may not be eligible for any or all of the Products appearing on the Apps, and the Vendor, and not Kavtek, is responsible for approving or denying any application for any Products in its sole discretion.

 

11. Term and Termination; Account Deletion

 

Term. These Terms begin on the date you first use the Kavtek Service and continue as long as you have an account with us and/or continue to use the Kavtek Service.

 

Termination. Kavtek may, in Kavtek’s sole discretion, suspend, disable, or delete your account (or any part thereof) or block or remove any User Content (defined below) that you submitted, for any lawful reason, including if Kavtek determines that you have violated these Terms or that your conduct or User Content would tend to damage Kavtek’s reputation or goodwill. If Kavtek deletes your account, you may not re-register for or use the Kavtek Service under any other user name or profile. Kavtek may block your access to the Kavtek Service to prevent re-registration.

 

Effect of Termination / Account Deletion. Upon termination of these Terms, all licenses granted by Kavtek will terminate. The following sections survive termination: Privacy, User Content, Indemnification, No Warranties, Limitation of Liability, Safety Warnings, Intellectual Property, Arbitration & Class Action Waiver, Governing Law and all general provisions. In the event of account deletion for any reason, User Content may no longer be available and Kavtek is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your subscription or it is terminated for any reason, you will lose access to all browsed products, saved designs, invited clients and any other Content or features provided through the Kavtek Service. Kavtek, in its sole discretion, may make available a very limited amount of Content or features to non-subscribers from time to time, and any use of that Content is governed by these Terms.

 

12. User Content

 

“Content” means clients, text, graphics, images, 2D, 3D models, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Kavtek Service; and (ii) ”User Content” means any content that users (including you) provide to be made available through the Kavtek Service. 

 

Content includes, without limitation, User Content. Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Kavtek Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees concerning any Content that you access on or through the Kavtek Service.

 

As between you and Kavtek, you represent that you own (or have all rights necessary to grant Kavtek the rights below to) all User Content that you submit to the Kavtek Service, and that Kavtek will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant Kavtek a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. Also, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Kavtek Service permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to Kavtek or through the Kavtek Service about improving or adding new features or products to the Kavtek Service or you otherwise provide feedback or testimonials, you hereby grant to Kavtek a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback and testimonials for any purpose, without any notice, compensation or other obligation to you.

 

You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Kavtek Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

 

13. Rights and Terms for Apps

a) Rights in Apps Granted. Subject to your compliance with these Terms, Kavtek grants you a limited, non-exclusive, non-transferable, revocable license, with no right to sublicense, to download and install a copy of the Apps on a mobile device that you own or control and to run such copy of the Apps solely for your own personal non-commercial purposes. You may not copy the Apps, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Apps; (ii) distribute, transfer, sublicense, lease, lend or rent the Apps to any third party; (iii) reverse engineer, decompile or disassemble the Apps; or (iv) make the functionality of the Apps available to multiple users through any means. Kavtek reserves all rights in and to the Apps not expressly granted to you under these Terms.

b) Accessing Apps from an App Store. The following terms apply to any Apps accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the Apps may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:

 

    • These Terms are between you and Kavtek, and not with the App Provider, and Kavtek (not the App Provider), is solely responsible for the Apps.
    • The App Provider has no obligation to furnish any maintenance and support services concerning the Apps.
    • In the event of any failure of the Apps to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the Apps to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Apps. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Kavtek.
    • The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Apps or your possession and use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the Apps fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
    • In the event of any third party claim that the Apps or your possession and use of that Apps infringe that third party’s intellectual property rights, Kavtek will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
    • The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the Apps, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Apps against you as a third-party beneficiary thereof.
    • You represent and warrant that (i) you are not located in a country that is subject to a Canada or U.S. Government embargo, or that has been designated by Canada or U.S. Government as a terrorist-supporting country; (ii) you are not listed on any Canada or U.S. Government list of prohibited or restricted parties; (iii) you are not an individual or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and (iv) you are not otherwise subject to or affected in any way by any national security or terrorism-related rules whether applicable to you personally or to your location or other circumstances.
    • You must also comply with all applicable third-party terms of service when using the Apps.

 

14. General Prohibitions and Kavtek’s Enforcement Rights

 

You agree not to do any of the following:

 a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity; (vii) exploits minors or (viii) promotes illegal or harmful activities or substances;

 b) Use, display, mirror or frame the Kavtek Service or any individual element within the Kavtek Service, Kavtek’s name, any Kavtek trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Kavtek’s express written consent;

c) Access, tamper with, or use non-public areas of the Kavtek Service, Kavtek’s computer systems, or the technical delivery systems of Kavtek’s providers;

d) Attempt to probe, scan or test the vulnerability of any Kavtek system or network or breach any security or authentication measures;

e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Kavtek or any of Kavtek’s providers or any other third party (including another user) to protect the Kavtek Service or Content;

f) Attempt to access, scrape or search the Kavtek Service or Content or download Content from the Kavtek Service, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by Kavtek or other generally available third-party web browsers;

g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other forms of solicitation;

h) Use any meta tags or other hidden text or metadata utilizing a Kavtek trademark, logo URL or product name without Kavtek’s express written consent;

i) Use the Kavtek Service or Content, or any portion thereof, for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by Kavtek;

j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Kavtek Service or Content to send altered, deceptive or false source-identifying information;

k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Kavtek Service or Content;

l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Kavtek Service;

m) Collect or store any personally identifiable information from the Kavtek Service from other users of the Kavtek Service without their express permission;

n) Copy, use, disclose or distribute any information obtained from the Kavtek Service, whether directly or through third parties (such as search engines), without Kavtek’s express written consent;

o) Impersonate or misrepresent your affiliation with any person or entity;

p) Violate any applicable law or regulation; or

q) Encourage or enable any other individual to do any of the foregoing.

 

Although we’re not obligated to monitor access to or use of the Kavtek Service or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Kavtek Service, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Kavtek Service and Kavtek’s systems. We reserve the right but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Kavtek Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

 

15. Member Interactions, Dealings with Third Parties

 

When interacting with other Kavtek members, you should exercise caution and common sense to protect your safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Kavtek Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Kavtek is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings. 

 

16. Indemnification

 

You agree to indemnify, defend, and hold harmless Kavtek and its directors, officers, employees, and agents from and against all claims, damages, losses and costs that arise from or relate to (i) your activities on the Kavtek Service, (ii) any User Content submitted by or on behalf of you or (iii) your violation of these Terms.

 

17. Third-Party Links and Content

 

There may be links on the Kavtek Service that let you leave the particular Kavtek Service you are accessing to access a linked site that is operated by a third party. Kavtek neither controls nor endorses these sites nor has Kavtek reviewed or approved the content that appears on them. Kavtek is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that Kavtek is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.

18. No Warranties

 

Kavtek reserves the right to modify the Kavtek Service, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the Kavtek Service, at any time, in its sole discretion. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Kavtek Service. Kavtek has no obligation to screen or monitor any Content and does not guarantee that any Content available on the Kavtek Service is suitable for all users or that it will continue to be available for any length of time.

 

Kavtek provides the Kavtek Service on an “AS IS” and “AS AVAILABLE” basis. You, therefore, use the Kavtek Service at your own risk. To the extent permitted by law, Kavtek expressly disclaims any and all warranties of any kind, whether expressed or implied, including, but not limited to the implied warranty of merchantability, home improvement for a particular purpose, pre-construction homes, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, Kavtek makes no representations or warranties:

 

    • That the Kavtek Service is or will be permitted in your jurisdiction;
    • That the Kavtek Service will be uninterrupted or error-free;
    • Concerning any Content, including User Content;
    • Concerning any third party’s use of User Content that you submit;
    • That the Kavtek Service will meet your personal or professional needs;
    • That Kavtek will continue to support any particular feature of the Kavtek Service.
    • Concerning sites and resources outside of the Kavtek Service, even if linked to from the Kavtek Service.

 

To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in these Terms. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE KAVTEK SERVICE, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.

 

19. Limitation of Liability

 

To the fullest extent permitted by law: (i) Kavtek shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, phone or tablet damage, system failure, inability to use the Kavtek Service or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and (ii) Kavtek’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to Kavtek over the 12 months preceding the date your first claim(s) arose. If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Kavtek’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Kavtek and you.

 

20. Safety Warnings

 

THE KAVTEK SERVICE OFFERS HOME IMPROVEMENT AND SMART LISTING INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT A HOME IMPROVEMENT PROFESSIONAL BEFORE BEGINNING ANY HOME IMPROVEMENT. YOU SHOULD CONSULT A HOME SALES REPRESENTATIVE OF A PRE-CONSTRUCTION OR RESALE HOME BEFORE MAKING A PURCHASE. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE PROFESSIONAL ADVICE. DO NOT DISREGARD, AVOID OR DELAY OBTAINING PROFESSIONAL RELATED ADVICE FROM YOUR HOME IMPROVEMENT PROFESSIONAL OR SALES OFFICE BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE KAVTEK SITE OR HEARD ON THE KAVTEK SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE KAVTEK SERVICE IS SOLELY AT YOUR OWN RISK AND IS NOT HOME IMPROVEMENT OR HOME SALES ADVICE.

 

NOTHING STATED OR POSTED ON THE KAVTEK APPS OR AVAILABLE THROUGH ANY KAVTEK SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, A TYPE OF HOME IMPROVEMENT. FOR PURPOSES OF THESE TERMS, HOME IMPROVEMENT INCLUDES, WITHOUT LIMITATION AS AN ADDITION TO OR ALTERATION, CONVERSION, IMPROVEMENT, MODERNIZATION, REMODELING, REPAIR, OR REPLACEMENT OF A BUILDING OR PART OF A BUILDING THAT IS USED OR DESIGNED TO BE USED AS A RESIDENCE OR DWELLING PLACE OR A STRUCTURE ADJACENT TO THAT BUILDING; OR AN IMPROVEMENT TO LAND ADJACENT TO THE BUILDING. NOTHING STATED OR POSTED ON THE KAVTEK APPS OR AVAILABLE THROUGH ANY KAVTEK SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, A TYPE OF HOME SALES. FOR PURPOSES OF THESE TERMS, HOME SALES INCLUDES, WITHOUT LIMITATION PRE-CONSTRUCTION AND EXISTING RESIDENTIAL HOMES. THE KAVTEK SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, KAVTEK MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE KAVTEK SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

 

21. Intellectual Property

 

You acknowledge that the Kavtek Service contains software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Kavtek-generated content, and content provided to Kavtek by its partners and licensors, is copyrighted individually and/or as a collective work under the CANADA, U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions; further, as between you and Kavtek, Kavtek owns a copyright in the selection, coordination, arrangement and enhancement of all content in the Kavtek Service. Subject to your compliance with these Terms, and solely for so long as you are permitted by us to access and use the Kavtek Service, you may download one copy of the application to any single device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices and are in compliance with these Terms. Subject to your compliance with these Terms, and solely for so long as you are permitted by us to access and use the Kavtek Service, Kavtek hereby grants you a limited, revocable, non-exclusive, non-transferable right and license to access and use the content made available on the Kavtek Service for your personal, non-commercial use of the Kavtek Service and no other purpose whatsoever. Unless otherwise specified, copying or modifying any content or using the content for any purpose other than your personal, non-commercial use of the Kavtek Service, including the use of any such content on any other website or networked computer environment, is strictly prohibited.

 

The Kavtek name, logos and affiliated properties, designs and marks are the exclusive property of Kavtek Software Corporation and/or its affiliates, whether registered or unregistered, and may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product or service. Nothing contained on the Kavtek Service should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or other intellectual property without our express prior written consent.

 

Any other trademarks appearing on the Kavtek Service are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content that they make available through the Kavtek Service. All rights not expressly granted in these Terms are reserved.

 

22. Copyright / DMCA Policy

 

Kavtek respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe any third party copyright or other intellectual property rights.

 

If properly notified that any materials infringe a third party’s copyright, Kavtek will promptly remove such materials from the Kavtek Site in accordance with the U.S. Digital Millennium Copyright Act (“DMCA”), the U.K. Copyright Designs and Patents Act 1988 (“CDPA”), the U.K. Digital Economy Act 2010 (“DEA”), Canada’s Copyright Act or equivalent laws which are applicable in other jurisdictions. Also, Kavtek may, when appropriate, terminate the accounts of repeat copyright infringers.

 

Filing a DMCA, CDPA or DEA Notice (or equivalent legal notice), to Remove Copyrighted Content – for Copyright Holders:

 

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:

 

    • Your name, address, telephone number, and email address.
    • A description of the copyrighted work that you claim has been infringed.
    • A description of where on the Kavtek Site the material that you claim is infringing may be found, sufficient for Kavtek to locate the material (e.g., the URL).
    • A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
    • A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
    • Your electronic or physical signature.

 

You may submit this information, or any counter-notice, via:

 

    • Email, with the subject line “Copyright Notices” to: noreply@kavtek.com
    • Offline: Kavtek Software Corporation

260 Edgeley Blvd, Unit 14

Vaughan, ON L4K 3Y4

Canada

Attn: Copyright Agent

 

Kavtek may disclose any communications concerning DMCA, CPDA, DEA or other applicable copyright notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.

 

If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If you have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.

 

If you have questions about the legal requirements of a CPDA, DEA or other applicable copyright notice, you should consult a legal advisor such as a solicitor and obtain professional legal advice and/or representation.

 

23. ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.

a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding individual arbitration and not in a class, representative or consolidated action or proceeding. You and Kavtek agree that the Canada Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Kavtek entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and Kavtek are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.

b) Exceptions and Opt-out. As limited exceptions to Section 23(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt-out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of Kavtek’s Legal Department at the Kavtek address set out below within thirty (30) days following the date you first agree to these Terms.

 

  1. c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the Canadian Arbitration Association (“CAA”) under its Consumer Arbitration Rules (the “CAA Rules”) then in effect, except as modified by these Terms. The CAA rules are available at adrcic.ca or by calling 1-877-475-4353. A party who wishes to start arbitration must submit a written Demand for Arbitration to CAA and give notice to the other party as specified in the CAA Rules. The CAA provides a form Demand for Arbitration at www.adric.ca. If your claim is for CAD. $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through telephonic or video-conference hearing, or by an in-person hearing as established by the CAA Rules. If your claim exceeds CAD. $10,000, the right to a hearing will be determined by the CAA Rules. Any arbitration hearings will take place in the county (or parish) where you live unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the CAA Rules. Kavtek will pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than CAD $10,000 unless the arbitrator finds your Dispute to be frivolous. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

e) Class Action Waiver. YOU AND KAVTEK AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 23 shall be null and void.

f) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 28 “Modification”, if Kavtek changes any of the terms of this Section 23 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of Kavtek’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Kavtek in accordance with the terms of this Section 23 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

g) Severability. Except for any of the provisions in Section 23(e) above, if an arbitrator or a court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

 

24. Contracting Entities, Governing Law and Jurisdiction

 

All users are contracting with Kavtek Software Corporation unless otherwise specified in these Terms.

 

These Terms shall be governed by the laws of the Province of Ontario, Canada, without regard to principles of conflicts of law. If your contract for the Kavtek Service is with another Kavtek entity, these terms shall be governed by the laws of the jurisdiction under which that Kavtek entity is incorporated, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.

 

Subject to the agreements in Section 23 above, (i) if your contract for the Kavtek Service is with Kavtek Software Corporation, exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the state and federal courts located in Ontario, Canada and you consent to the jurisdiction of those courts, and (ii) if your contract for the Kavtek Service is with another Kavtek entity, exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the courts located in the jurisdiction under which that Kavtek entity is incorporated, and you consent to the jurisdiction of those courts.

 

25. Interpretation; Severability; Waiver; Remedies

 

Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by Kavtek in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Kavtek. Kavtek’s rights and remedies hereunder are cumulative and not exclusive.

 

26. Successors; Assignment; No Third-Party Beneficiaries

 

These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without Kavtek’s prior written consent. Kavtek may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.

 

27. Notices

 

You consent to receive all communications including notices, agreements, disclosures, or other information from Kavtek electronically. Kavtek may communicate by email or by posting to the Kavtek Service. For support-related inquiries, you may email Support. For all other notices to Kavtek, write to the following addresses:

 

Kavtek Software Corporation

260 Edgeley Blvd, Unit 14

Vaughan, ON L4K 3Y4

Canada

Attn: Legal Department

 

Nothing in these Terms or otherwise limits Kavtek’s right to object to subpoenas, claims, or other demands.

 

28. Modification

 

We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know by, at a minimum, posting the updated Terms (as indicated by a revised “Last Updated” date at the top of this page) on the Kavtek Site and/or through the Kavtek Service. Modifications will be effective on the date that they are posted to the Kavtek Site. You must review the Terms whenever we update them before you use the Kavtek Service. If you continue to use the Kavtek Service after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 23(f) “Effect of Changes on Arbitration,” you may not use the Kavtek Service anymore. Because the Kavtek Service is evolving we may change or discontinue all or any part of the Kavtek Service, at any time and without notice, at our sole discretion.

 

29. Entire Agreement

 

These Terms incorporate the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the Kavtek Site from time to time:

 

 

In the event of a conflict between any policies posted on the Kavtek Service and these Terms, these Terms will control. These Terms represent the entire understanding between Kavtek and you regarding the Kavtek Service or Content and supersede all prior agreements and understandings regarding the same. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

 

30. Force Majeure

 

Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labour problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.