This User Agreement (the "Agreement") is a legal agreement between you and 2385799 Ontario Inc. ("Kite") respecting your use of Kite services as described herein and on Kite’s website. BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON WHEN SIGNING UP FOR THE SERVICES, OR BY OTHERWISE USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If you have any questions or concerns about the terms of this agreement, please contact us at [email protected].
1.1. "Services" has the meaning set forth in Section 2 below.
1.2. "Software" means the Kite desktop application that a user must download in order to utilize the Services.
2.1. Kite will provide users with the ability to access, through the Software, pre-configured cloud environments to allow users to write and test their applications intended for such environments in a real-time, synchronized manner (the "Services"). The Services are provided subject to the terms and conditions of this Agreement.
2.2. In order to use the Services, you must:
(a) provide up-to-date, complete and accurate registration information, including your first and last name, your valid mailing address, your phone number and your valid email address;
(b) provide up-to-date, complete and accurate credit card information for a credit card that is valid and legally registered to you; and
(c) be at all times in compliance with the terms and conditions of this Agreement and applicable law.
You specifically agree that Kite may rely on the accuracy of the information provided by you to Kite, and that Kite will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to Kite.
2.3. Kite may provide you with certain information to allow you to use the Services, such as a user ID and a password or the ability to create a user ID and/or password (the "Access Information"). Kite will store the Access Information in encrypted form. The Access Information is provided on the understanding that it is personal to you; you will not permit anyone other than you to obtain access to the Services using the Access Information. Kite is not responsible or liable in any way for any use of the Services (authorized or unauthorized) by any party accessing the Services using your Access Information, and you accept all responsibility for such use of the Services and any consequences resulting from such use of the Services.
2.4. Kite reserves the right to change, suspend or discontinue the Services at any time, including the availability of any feature or content or account access. Kite may also impose limits on the Services and/or terminate or restrict your access to parts or all of the Services without notice or liability.
2.6. You acknowledge that Kite has no obligation to monitor its users’ use of the Services, and that there may be other users who are independently developing applications that may be similar to yours. Kite has no responsibility to notify any user or take any other action with respect to any claim whatsoever, including claims of infringement, relating to applications developed on or using the Services, and you agree to defend, indemnify and hold Kite harmless against any such claims, losses and damages relating to any dispute between you and another user or any other third party related to your applications or your use of the Services and Software, in accordance with the indemnity provisions set forth in this Agreement.
3.1. You agree that:
(a) You will not permit anyone other than you, as an individual, to obtain access to the Services through your Kite account or otherwise using your Access Information, and will only use the Services in accordance with this Agreement and applicable law;
(b) You will ensure that any information that is provided to Kite pursuant to this Agreement is true, accurate, current and complete;
(c) You will be solely responsible for all activities with respect to the Services undertaken by you;
(d) You will not use the Services for any commercial purposes (meaning distribution or incorporation of the Software or Services into any product or service that you may develop, or otherwise obtaining monetary benefit from the actual use of the Services rather than from your product or application developed using the Services) or for the benefit of any third party;
(e) You represent and warrant that you have the right and the authority to enter into this Agreement and to use the Services;
(f) You will ensure that your use of the Services does not interfere with, degrade, or adversely affect any software, system, network or data used by any person including Kite and other users of the Services (including by ensuring that you do not upload any viruses or other harmful code in using the Services);
(g) You will not in any way use the Services to transmit harassing, abusive, libelous, illegal or deceptive messages or information, or to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any infringement of intellectual property rights, any fraudulent, obscene or pornographic activities, any deceptive impersonation, any activities involving the exploitation of children, or any activities that violate any third party’s privacy rights;
(h) You will not interfere with or in any manner compromise any of Kite's security measures;
(i) You will not alter, modify, delete, or otherwise interfere with or in any manner compromise any content, information, services and/or features accessible through the Services or Software, or access or attempt to access, any content, information, services and/or features to which you have no rights;
(j) You will cooperate with Kite and provide information requested by Kite to assist Kite and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable law.
Without limiting the foregoing, you agree not to violate any applicable laws, the rights of others, or the operational and security mechanisms of the Services.
3.2. Without limiting your obligations set forth in Section 3.1, you agree that you are solely responsible for the operation of your applications developed with the aid of the Services, and for complying with all applicable laws in the development of such applications. Kite expressly disclaims all liability for any claims, losses or damages arising from your applications and/or your marketing or distribution of such applications, and you agree to indemnify Kite against all such claims, losses and damages relating to your applications and/or any code uploaded or used by you in conjunction with the Services or Software, in accordance with the indemnity provisions set forth in this Agreement. You are further expressly prohibited from making any references to Kite, the Services or the Software, including the operation of the Services or Software (whether in conjunction with your applications or business operations, or otherwise), unless expressly authorized in writing by Kite, and specifically shall in no event make any representations, guarantees or warranties to any third party in relation to Kite, the Services or Software.
3.4. You acknowledge that, due to the nature of the Services, applications or other software uploaded to the Services may be hosted on servers residing in jurisdictions other than Canada, over which Kite has no direct control. By using the Services, you acknowledge that your applications or other software may become, during the period that they are hosted on such servers, subject to the laws of the jurisdiction in which those servers reside and/or to the terms of agreements respecting the hosting of data on such servers. You hereby release Kite from all liability for any governmental or third party action taken in such jurisdictions with respect to such data (including your applications and software) and/or the servers on which such data resides, and you acknowledge that it is solely your responsibility to back up and retain copies of any applications or other software that you may upload to the Services.
3.5. If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Software or Services. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction that your use of the Software and Services is allowed. Without limiting the foregoing, the Software and Services are not intended for children under the age of 13. We will close any accounts used exclusively by such children and will remove and/or delete any personal information we believe was submitted by or about any child under the age of 13.
4.1. Kite hereby grants you a personal, non-exclusive, revocable, non-transferable license to use the Software on any compatible personal computer or other hardware, and solely for the purposes of using the Services. This license does not imply any rights to future upgrades or updates to, or versions of, the Software. However, if Kite does provide you with any Software upgrades, updates or versions, such updates, upgrades and versions shall be subject to the terms and conditions of this Agreement or such agreement, if any, which accompanies such upgrades, updates or versions. Such Software upgrades, updates and versions may be subject to additional payments. You do not have the right to obtain or use any source code for the Software.
4.2. You shall not:
(a) copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Software or any part thereof;
(b) distribute, assign, license, sublicense, lease, rent, transfer, sell or otherwise provide access to the Software, in whole or in part, to any third party on a temporary or permanent basis;
(c) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Software (including without limitation any copyright notice);
(d) copy any written materials accompanying any portion of the Software unless specifically authorized in writing to do so by Kite;
(e) use the Software in any way inconsistent with the use parameters for the Services;
(f) attempt to hack the Software or any communication initiated by the Software or to defeat or overcome any encryption and/or other technical protection methods implemented by Kite with respect to the Software and/or data and/or content transmitted, processed or stored by Kite or other users of the Services;
(g) collect or attempt to collect any information or communication about the users of the Services or Software by monitoring, interdicting or intercepting any process of or communication initiated by the Software or Services or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing;
(h) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access to the Services or any computer system or that are designed to monitor, distort, delete, damage or disassemble the Software or its ability to communicate and perform the Services; or
(i) authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in (a) – (h) above, or attempting to do so.
For the purposes of this provision "copy or reproduce" shall not include copying of statements and instructions of the Software during program execution when used in accordance with and for the purposes described in the user documentation or in the course of making backups of the computer or system on which the Software is installed, in accordance with industry standard business practices.
4.3. You specifically acknowledge that the Software is not developed, or licensed for use in any nuclear, aviation, mass transit, or medical application or in any other inherently dangerous, time-sensitive or mission critical applications. You agree that Kite shall not be liable for any claims or damages arising from such use if you use the Software for such applications. You agree to hold Kite harmless from any claims for losses, costs, damages, or liability arising out of or in connection with the use of the Software for such applications.
4.4. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
5.1. You agree to pay all applicable fees in connection with the Services. You authorize Kite to automatically charge you for any and all fees incurred by you for Services. Kite reserves the right to change its price list and to institute new charges at any time upon notice to you, which notice may be provided by means of updates on Kite’s website. Your use of the Services following such changes constitutes your acceptance of any new or increased charges.
6.2. Additionally, by submitting personal information to Kite pursuant to this Agreement, including without limitation your name, address, and e-mail address, you consent to the collection, processing, transmission and disclosure of such information by Kite for the purposes of Kite’s provision of the Services and Kite’s internal use and specifically the purposes for which such information has been requested, such as billing requirements. You specifically agree that Kite may disclose your name, address, e-mail address and/or account information to third party service providers to the limited extent necessary to provide you with the Services.
7.1. You are responsible for complying with all applicable intellectual property laws in your use of the Services, including, without limitation, your development of your applications, and agree to indemnify, defend and hold Kite harmless from any and all claims that arise as a result of your non-compliance with intellectual property laws and/or your infringement of any intellectual property rights.
7.2. You acknowledge that, except as expressly set forth in Section 8 below, the Software and Services are owned by Kite, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws. In addition, other intellectual property laws (including patent laws) and treaties may protect the Software and Services. It is therefore your responsibility to fully comply with such laws in using and handling the Services and Software. Nothing herein shall be construed as constituting a sale of the Software or any portion thereof to you.
7.3. You do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Software, the Services, or any part thereof. Your only rights to the Software, the Services and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Any rights not expressly granted under this Agreement are reserved.
8.1. The Software and the Services includes or utilizes certain software licensed from third parties, and is subject to the terms and conditions of such third party licenses. The specific DLLs or other code in the Software and Services, together with their applicable license terms, can be found at https://www.runkite.com/third-party-licenses. Ownership of copyright and other intellectual property and proprietary rights in and to such DLLs and code are as set forth in such third party licenses. The links to the applicable license terms are provided solely for your convenience, and Kite disclaims any responsibility for the currency or accuracy of such links. It is solely your responsibility to ensure that you comply with the version of the applicable third party license in effect as of the date of your use of the Software and Services.
8.2. You acknowledge that such third party license terms apply only to the specific DLLs or other code as set forth in https://www.runkite.com/third-party-licenses; such terms and conditions do not apply to any other portions of the Software or Services provided hereunder to you, and the terms and conditions of this Agreement shall govern all other portions of the Software or Services provided hereunder to you.
8.3. As such software licensed from third parties is not under the control of Kite, Kite is not responsible for the contents of any such software, including without limitation the accuracy, copyright compliance, legality, or any other aspect of such software.
9.1. THE SOFTWARE AND SERVICES ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. KITE ASSUMES NO RESPONSIBILITY FOR YOUR RELIANCE ON THE SOFTWARE OR SERVICES, OR FOR ANY ERRORS, OMISSIONS OR INACCURACIES WHATSOEVER IN THE INFORMATION PROVIDED THROUGH THE SERVICES OR SOFTWARE, OR ARISING FROM YOUR USE OF THE SERVICES OR SOFTWARE. KITE DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE SERVICES OR SOFTWARE, AND USE OF THE SERVICES AND SOFTWARE IS SOLELY AT YOUR OWN RISK. Kite has no special relationship with or fiduciary duty to you, and you acknowledge that Kite has no control over, and no duty to take any action regarding any acts or omissions taken by you or any other user of the Services, including without limitation with respect to any applications developed by users utilizing the Services. Some jurisdictions do not allow the exclusion of certain warranties, so the above limitations or exclusions may not apply to you.
10.1. The only type of damages that can be recovered against Kite arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be your direct damages, if any, to the extent arising from Kite’s breach of this Agreement, gross negligence, or wilful misconduct. In no event shall the aggregate liability of Kite exceed the amount paid by you for the portion of the Services that gave rise to the claim. KITE SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SERVICES. Without limiting the foregoing, your only right with respect to any problems or dissatisfaction with the Software and Services is to uninstall and cease use of such Software and Services.
10.2. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KITE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, COMPUTER OR MOBILE DEVICE FAILURE, PROBLEMS, LOSS OR DAMAGE ASSOCIATED WITH ANY USE OF THE SOFTWARE OR SERVICES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, EVEN IF KITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
11.1. In addition to the indemnity obligations stated elsewhere in this Agreement, you agree to indemnify, defend and hold harmless Kite, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of: (a) your access to the Services, the Software, and any application or code developed or uploaded by you in using the Services or Software, (b) your use or misuse of the Services and/or Software, (c) any breach of this Agreement by you, (d) the infringement by you, or any third party obtaining access to the Services through you, of any intellectual property or other right of any person or entity, or (e) your violation of any third-party rights or any applicable laws. Kite reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Kite, at your expense, in asserting any available defences.
12.1. You may terminate this Agreement at any time upon notice to Kite. Upon any termination of this Agreement for any reason (whether by you or by Kite), you must cease all use of the Services and Software and destroy and/or permanently delete all copies of the Software in your possession.
12.2. Kite reserves the right, in its sole and complete discretion, to revoke your authorization to use the Services at any time with or without cause, for any reason or no reason. Upon termination of your account, your right to use the Services will immediately cease. Any fees paid by you are non-refundable. All restrictions contained in this Agreement shall survive the termination of your right to use the Services.
12.3. Without limiting other remedies, Kite may limit your activity, warn other users of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your account and refuse to provide Services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) Kite is unable to verify or authenticate any information you provide; or (c) Kite believes that your actions may cause financial loss or legal liability for you, other users or Kite.
12.4. Kite reserves the right to investigate suspected violations of this Agreement. You hereby authorize Kite to cooperate with (1) law enforcement authorities in the investigation of suspected criminal violations and (2) system administrators at Internet service providers, networks or computing facilities, and other content providers in order to enforce the terms and conditions of this Agreement.
12.5. The above-described actions are not Kite’s exclusive remedies and Kite may take any other legal, equitable or technical action it deems appropriate in the circumstances. Kite will not be liable for any damage caused by the termination of this Agreement.
13.1. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties. There are no provisions, representations, undertakings, agreements, or collateral agreements between the parties other than as set out in this Agreement.
13.2. This Agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement or to any contracts relating to goods or services obtained through this site.
13.3. You acknowledge and agree that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Kite to show your acceptance of this Agreement and/or your agreement to download and install the Software and/or use the Services), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Software or the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
13.4. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.
13.5. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
14.1. If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to Kite or its business, please contact Kite at: