Kelsen DraftTM Terms of Service
Updated: October 19th, 2023
KELSEN DRAFT TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between Kelsen Legal Technologies Inc., a Canadian corporation whose registered address is 10 Dundas St. East (10th Floor) Suite 1002, Toronto ON M5B 2G9 Canada (“Kelsen”) and the corporation, LLC, partnership, sole proprietorship, or other business entity or individual executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and Kelsen’s provision of Kelsen Draft (as defined below in Section 1.6) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “AI” means artificial intelligence.
1.2. “Customer Usage Data” means all information collected, processed, and/or stored through Kelsen Draft by Customer or on Customer’s behalf, including any legal documentation or source materials analyzed by Kelsen Draft when it is used by the Customer. Customer Usage Data does not include payment records, credit cards or other information Customer uses to pay Kelsen, or other information and records related to Customer’s account, including without limitation identifying information related to Customer staff involved in payment or other management of such account (the usage of which is addressed in the Kelsen Privacy Policy).
1.3. “AI Models” means any AI model used by Kelsen to process Customer Usage Data, including internal commercial, open source or proprietary language models, or neural networks, as well as external text generation models provided and or hosted by third-party suppliers.
1.4. “Subscription” means a subscription for access to Kelsen Draft, which is agreed to by both parties and references these Terms of Service.
1.5. “Output” means any content generated by the AI Models based on Customer Usage Data uploaded by the Customer.
1.7. “Kelsen Draft” means Kelsen’s architecture. For greater clarity, Kelsen Draft does not include any Output.
1.8. “Term” is defined in Section 11.1 below.
1.9. “User” means any individual who uses Kelsen Draft on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
2. KELSEN DRAFT.
2.1. Use of Kelsen Draft. During the Term, Customer may access and use Kelsen Draft pursuant to the terms of any outstanding Subscription, including such features and functions as the Subscription requires or stipulates.
2.2. Support for Kelsen Draft. Kelsen will exercise commercially reasonable efforts to (a) provide support for Kelsen Draft to Customer, and (b) keep Kelsen Draft operational and available to Customer, in each case according to Kelsen’s standard policies and procedures.
2.3. Kelsen Draft Revisions. Kelsen may revise Kelsen Draft’s features and functions at any time, including without limitation by removing such features and functions. If any such revision to Kelsen Draft materially reduces features or functionality provided to Customer, Customer may (within 30 days of notice of such revision) terminate this Agreement without cause.
3. PAYMENT.
3.1. Subscription Fees. Customer will pay Kelsen the fee stipulated in each Subscription (the “Subscription Fee”) for each Term. Kelsen’s invoices are due upon issuance. Customer will maintain complete, accurate and up-to-date billing and contact information at all times. For late payment, Customer will pay interest charges from the time the payment was due at the rate that is the lower of 2% per month or the highest rate permissible under applicable law. Kelsen will not be required to refund the Subscription Fee under any circumstances.
3.2. Suspension for Non-Payment. Kelsen reserves the right (in addition to any other rights or remedies Kelsen may have) to suspend all Customer access to Kelsen Draft if any Subscription Fees are overdue, until such amounts are paid in full.
(a) Amounts due under this Agreement are payable to Kelsen without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”).
(b) Kelsen’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 3.3. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer will separately pay Kelsen the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 3.3 does not govern taxes based on Kelsen’s net income.
4. CUSTOMER USAGE DATA, OUTPUT, & PRIVACY.
4.1. Use of Customer Usage Data. Kelsen must use Customer Usage Data in certain ways to power the processing of Kelsen Draft, including passing data uploaded by Customer through the AI Models. Kelsen Draft encrypts Customer Usage Data in transit and sends it to the AI Models in order to categorize, select, and optimize Customer Usage Data as Output. Accordingly:
(a) Kelsen will:
(i) de-identify and pseudo-anonymize Customer Usage Data prior to processing said Customer Usage Data by the AI Models;
(ii) process Customer Usage Data as needed through the AI Models in order to deliver Kelsen Draft’s core functionality to the Customer;
(iii) only process and/or transfer Customer Usage Data using secure, reasonable, and appropriate mechanisms;
(iv) exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Usage Data; and
(v) comply with all Privacy/Security Laws that are applicable both specifically to Kelsen and Kelsen to data processors in the jurisdictions in which Kelsen does business.
(i) have access to Customer Usage Data in view of applicable encryption policies pursuant to which Customer Usage Data is only accessible by the Customer other than as necessary to facilitate Kelsen Draft; or
(ii) give any third-party access to Customer Usage Data, except Kelsen’s subcontractors or collaborators that (i) have a need for such access to facilitate or operate Kelsen Draft, and (ii) are subject to a reasonable written agreement governing the use and security of Customer Usage Data.
4.2. Data Storage. All Customer Usage Data will be encrypted at rest and in transit according to industry standard cloud cybersecurity protocols and will be stored on a secure cloud-based server located in or close to the Customer’s country of jurisdiction.
4.3. Ownership of Output. Kelsen expressly disclaims all ownership rights over the Output generated by the AI Models from Customer Usage Data.
4.4. Deletion Requests. If Kelsen receives a “right to know,” deletion, “right to be forgotten,” or similar request related to Customer Usage Data, Kelsen may respond in accordance with applicable law. Nothing in this Agreement precludes Kelsen from asserting rights or defenses it may have under applicable law related to such requests.
4.5. Privacy Policy. Customer acknowledges Kelsen’s privacy policy pertaining to Kelsen Draft and collection of personal information at https://kelsen.ai/privacy-policy, and Customer recognizes and agrees that nothing in this Agreement restricts Kelsen’s right to alter such privacy policy.
4.6. Erasure. Kelsen may permanently erase Customer Usage Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, without limiting Kelsen’s other rights or remedies.
4.7. Required Disclosure. Notwithstanding the provisions above of this Article 4, Kelsen may disclose, to the extent possible, Customer Usage Data as required by applicable law or by proper legal or governmental authority. Kelsen will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
4.8. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using Kelsen Draft, Customer assumes such risks. Kelsen offers no representation, warranty, or guarantee that Customer Usage Data will not be exposed or disclosed through errors or the actions of third parties.
4.9. Data Accuracy. Kelsen will have no responsibility or liability for (i) the accuracy of data uploaded to Kelsen Draft by Customer, including without limitation Customer Usage Data and any other data uploaded by Users, or (ii) the accuracy of any Output generated by the AI Models.
4.10. Algorithmic Training Data. Kelsen has opted out of all AI Models’ available options to store and analyze Customer Usage Data for high-level AI algorithmic training purposes. If Kelsen later opts into this functionality for any particular AI Model, it will notify Customer.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
(i) use Kelsen Draft for service bureau or time-sharing purposes or in any other way allow third parties to exploit Kelsen Draft;
(ii) provide Kelsen Draft passwords or other log-in information to any third party;
(iii) share non-public Kelsen Draft features or content with any third party;
(iv) access Kelsen Draft in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of Kelsen Draft, or to copy any ideas, features, functions or graphics of Kelsen Draft;
(v) use Kelsen Draft in any way that constitutes an ethical violation, including but not limited to breaches of professional or academic integrity; or
(vi) engage in web scraping or data scraping on or related to Kelsen Draft, including without limitation collection of information through any software that simulates human activity or any bot or web crawler.
(b) In the event that Kelsen suspects any breach of the requirements of this Section 5.1(a), including without limitation by Users, Kelsen may suspend Customer’s access to Kelsen Draft without advance notice, in addition to such other remedies as Kelsen may have.
5.2. Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to Kelsen Draft, including without limitation by protecting its passwords and other log-in information. Customer will notify Kelsen immediately of any known or suspected unauthorized use of Kelsen Draft or breach of its security and will use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of Kelsen Draft, Customer will comply with all applicable laws, including without limitation Privacy/Security laws.
5.4. Users & Kelsen Draft Access. Customer is responsible and liable for: (a) Users’ use of Kelsen Draft, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; (b) any use of Kelsen Draft through Customer’s account, whether authorized or unauthorized; and (c) allowing Customer Usage Data to be analyzed by Kelsen Draft.
5.5. Customer Rights and Consents. Customer represents, warrants and covenants that it has and shall maintain throughout the term all necessary rights, consents and authorizations to provide the Customer Usage Data to Kelsen and to authorize Kelsen to use, disclose, or otherwise process that Customer Usage Data through Kelsen Draft as contemplated by this Agreement.
6. IP & FEEDBACK.
6.1. IP Rights to Kelsen Draft.
(a) Kelsen retains all intellectual property rights, title, and interest in and to Kelsen Draft, including without limitation all software used to provide Kelsen Draft and all graphics, user interfaces, logos, and trademarks reproduced through Kelsen Draft.
(b) This Agreement does not grant Customer any intellectual property license or rights in or to Kelsen Draft or any of its components, except to the limited extent that such rights are necessary for Customer’s use of Kelsen Draft as specifically authorized by this Agreement. Customer recognizes that Kelsen Draft and its components are protected by copyright and other laws.
(a) Certain items of software may be provided to Customer with Kelsen Draft and are subject to third-party or “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 6.1 (IP Rights) or 9 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software.
(b) Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Kelsen makes such Open Source Software, and Kelsen’s modifications to that Open Source Software, available by written request at the notice address specified in section 12.2 below.
6.3. Feedback. Kelsen has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer or Users give Kelsen, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Kelsen’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. For greater certainty, Feedback will not be considered Customer’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Kelsen’s products or services.)
7. CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items Kelsen discloses to Customer: (a) any document Kelsen marks “Confidential”; (b) any information Kelsen designates as “Confidential” at the time of disclosure, provided Kelsen confirms such designation in writing within 5 business days; and (c) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Kelsen’s valuable trade secrets.
(a) Customer will not use Confidential Information for any purpose other than as specified and agreed by Kelsen at the time of Kelsen’s disclosure (the “Purpose”).
(b) Customer: (i) will not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Section 7.1; and (ii) will not disclose Confidential Information to any other third party without Kelsen’s prior written consent.
(c) Customer will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer will promptly notify Kelsen of any misuse or misappropriation of Confidential Information that comes to Customer’s attention.
(d) Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; however, in such circumstances. Customer will give Kelsen prompt notice of any such legal or governmental demand, and reasonably cooperate with Kelsen in any effort to seek a protective order or otherwise to contest such required disclosure, at Kelsen’s expense.
7.2. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate two (2) years after the date of disclosure; provided that such obligations related to Confidential Information constituting Kelsen’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer will destroy Kelsen’s Confidential Information in its possession or control.
7.3. Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to Kelsen; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that Kelsen prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. This Section 7.3 does not limit either party’s right to injunctive relief for breaches not listed.
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Kelsen will retain all right, title, and interest in and to all Confidential Information.
8. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS.
(b) In case of breach of the warranty above in this Section 8.1(a), Kelsen, at its own expense, will promptly:
(i) secure for Customer the right to continue using Kelsen Draft;
(ii) replace or modify Kelsen Draft to make it non-infringing; or
(iii) if such remedies are not commercially practical in Kelsen’s reasonable opinion, refund the fees paid for Kelsen Draft for every month remaining in the then-current Term following the date after which Customer access to Kelsen Draft ceases as a result of such breach of warranty.
(c) If Kelsen exercises its rights pursuant to Subsection 8.1(b) above, Customer will promptly cease all use of Kelsen Draft. This Section 8.1, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and Kelsen’s entire liability for breach of the warranty above in this Section 8.1.
8.2. From Customer. Customer represents and warrants that:
(a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement;
(b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through Kelsen Draft; and
(c) it is an individual 18 years or older, a corporation, the sole proprietorship of an individual 18 years or older, or another person or entity authorized to do business pursuant to applicable law.
(a) Except to the extent set forth in Section 8.1 above, CUSTOMER ACCEPTS KELSEN DRAFT “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
(b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) KELSEN DOES NOT REPRESENT OR WARRANT THAT KELSEN DRAFT WILL PRODUCE ACCURATE OR RELEVANT CONTENT FOR THE CUSTOMER, OR OTHERWISE PERFORM WITHOUT INTERRUPTION OR ERROR; (B) KELSEN DOES NOT AND CANNOT GUARANTEE THAT KELSEN DRAFT IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION; AND (C) KELSEN DOES NOT REPRESENT THAT ANY OUTPUTS WILL BE SATISFACTORY IN ANY WAY TO CUSTOMER OR THAT ANY SUCH OUTPUTS WILL NOT BREACH THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
(c) THE OUTPUTS PROVIDED THROUGH OR IN CONNECTION WITH KELSEN DRAFT ARE INTENDED TO PROVIDE PRACTICAL AND USEFUL INFORMATION ON THE SUBJECT MATTER COVERED. WHILE SUCH OUTPUT MAY CONCERN ISSUES RELATED TO LEGAL SERVICES OR DOCUMENTS, SUCH CONTENT IS NOT FORMAL LEGAL ADVICE. CUSTOMER WILL NOT RELY ON ANY OUTPUT OF KELSEN DRAFT WITHOUT SEEKING THE ADVICE OF, AND/OR VETTING ANY OUTPUT THROUGH, A DULY LICENSED AND QUALIFIED LAWYER IN THE APPLICABLE SUBJECT MATTER AND JURISDICTION. KELSEN EXPRESSLY DISCLAIMS ALL LIABILITY IN RESPECT OF ACTIONS TAKEN OR NOT TAKEN, AND/OR DECISIONS MADE OR NOT MADE, IN CONNECTION WITH THE CUSTOMER’S USE OF KELSEN DRAFT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THEY DO NOT, AND ARE NOT INTENDED TO, CONSTITUTE FORMAL LEGAL ADVICE.
(d) CUSTOMER UNDERSTANDS THAT IT, AND ITS USERS, ARE RESPONSIBLE FOR ALL DECISIONS MADE, ACTIONS TAKEN, AND FAILURES TO TAKE ACTION BASED ON CUSTOMER’S USE OF KELSEN DRAFT, WHICH USES AI MODELS THAT GENERATE PREDICTIONS BASED ON PATTERNS IN DATA. OUTPUT GENERATED BY AI MODELS IS PROBABILISTIC AND SHOULD BE EVALUATED FOR ACCURACY AS APPROPRIATE FOR YOUR USE CASE, INCLUDING BY ENSURING QUALIFIED LAWYER REVIEW OF SUCH OUTPUT.
9. INDEMNIFICATION.
9.1. Kelsen will defend, indemnify, and hold harmless Customer, its affiliates, and each of their respective directors, officers, employees, successors, assigns and agents, from and against any loss, damage, settlement, penalty, cost, expense or any other liability (including but not limited to reasonable attorney fees and expenses) arising out of any third party allegation or claim that, if true, would establish (a) that Kelsen Draft violates or infringes any third party intellectual property right, or (b) the gross negligence or willful misconduct of Kelsen.
9.2. Customer will defend, indemnify, and hold harmless Kelsen, its affiliates, and each of their respective directors, officers, employees, successors, assigns and agents, from and against any loss, damage, settlement, penalty, cost, and expense or any other liability (including but not limited to reasonable attorney fees and expenses) arising out of any third party allegation or claim that, if true, would establish (a) infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right due to written material, images, logos or other content uploaded to Kelsen Draft by Customer, or (b) the gross negligence or willful misconduct of Customer.
10.1. Dollar Cap. KELSEN’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE CUMULATIVE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
10.2. Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL KELSEN BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY TO THE BENEFIT OF KELSEN’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD-PARTY CONTRACTORS, AS WELL AS: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF KELSEN IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF CUSTOMER’S REMEDIES FAIL THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that Kelsen has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10, and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 10, Kelsen’s liability will be limited to the maximum extent permissible.
11.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Subscription or, if none, for three (3) years. Thereafter, the Term will renew for successive one (1) year periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
11.3. Effects of Termination. Upon termination of this Agreement, Customer will cease all use of Kelsen Draft. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay Subscription Fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Disclaimers), 8.3(a) (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12. MISCELLANEOUS.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. Kelsen may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to info@kelsen.ai, and such notices will be deemed received 24 hours after they are sent.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Kelsen’s express written consent. Any purported assignment in violation of this clause will be null and void. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Governing Law: This Agreement and all claims arising out of or related to this Agreement will be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction.
12.8. Dispute Resolution. Any and all disputes arising out of or related to this Agreement, or in respect of any legal relationship associated with or derived from this Agreement will be finally resolved by binding arbitration under the Arbitration Rules of the ADR Institute of Canada (“Rules”). The proceedings will be subject to the Simplified Arbitration Procedure provided in the Rules and it will be carried out on a document-only basis. The seat of arbitration will be Toronto, Ontario, Canada, and the language of arbitration will be English. The arbitration will be presided by a single arbitrator to be appointed in accordance with the Rules, provided that said arbitrator shall be experienced in technology contracting and will necessarily be qualified to practice law in a jurisdiction connected to the present Agreement. The parties agree that any such arbitration may be conducted virtually. The parties will bear their own costs of arbitration, and the arbitrator will have the discretion to award costs to the prevailing party. The final award granted by the arbitrator will be conclusively binding on the parties, without any right of judicial review. The parties may register the final award for enforcement in any court of competent jurisdiction.
12.9. Conflicts. In the event of any conflict between this Agreement and any Kelsen policy posted online, the terms of this Agreement will govern.
12.10. Technology Export. Customer will not: (a) permit any third party to access or use Kelsen Draft in violation of any U.S. law or regulation; or (b) export any software provided by Kelsen or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use Kelsen Draft in, or export such software to, a country subject to a United States embargo.
12.11. Entire Agreement. This Agreement, along with the corresponding Subscription, sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
12.12. Amendment.
(a) Kelsen may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof.
(b) Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Kelsen written notice of rejection of the amendment.
(c) In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination).
(d) Customer’s continued use of Kelsen Draft following the effective date of an amendment will confirm Customer’s consent thereto.
(e) This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
(f) Kelsen may revise the Privacy Policy at any time by posting a new version of either at its website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Customer’s rights or protections, notice and consent will be subject to the requirements above in this Section 12.12.