Klarway General Terms and Conditions of Use

21/04/2023

These “Klarway General Terms and Conditions of Use” (hereinafter referred to as “General Terms and Conditions”) describe all the terms and conditions applicable to the use of the website, services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway to Users.

These “General Terms and Conditions” and any other specific conditions are contractual between Klarway and the Users, and both parties must be bound by their terms and conditions as well as by the law itself. Any User who does not accept these “General Terms and Conditions” and/or any other specific conditions, as applicable, must refrain from entering, accessing, viewing, registering, using, utilizing, downloading, installing, executing and/or in any way interacting with the website, services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway (hereinafter “Acceptance Actions”).

 1. DEFINITIONS

For the purposes of these “General Terms and Conditions” and any specific conditions, the following shall be understood as:

1.1  KLARWAY : we, as a company dedicated to the development and marketing of software, who have the rights to market the “Klarway Proctoring” Software, which allows the remote supervision, monitoring, surveillance and control of events, facts, activities, processes, procedures and/or people (such as, but not limited to, exams, contests, evaluations) based on facial recognition and/or other biometric data of the “End Users” as well as the control of their environment or ambiance during the supervised events.

1.2  USER : any natural or legal person who enters, accesses, views, browses, registers, uses, utilizes, executes, downloads and/or in any way relates to the website, services, products, software, applications, contents and/or information offered, made available, licensed and/or provided by Klarway, whether anonymously (through browsing the website https://klarway.com/ ) and/or through registration through the website and/or the use of any of the products and/or services provided by Klarway, whether free of charge or for a fee, on their own account or on behalf of third parties. Includes the Client and End Users.

1.3  CUSTOMER : the institution, company, organization or natural or legal person that contracts the provision and implementation of the Software, including mobile and desktop applications and the administration panel with the corresponding implementation, training, maintenance and data processing services for the purposes of providing the proctoring service by Klarway.

1.4  END USER : means the User who uses Klarway’s services and/or products by virtue of their relationship with a Klarway Client. This includes the Client’s customers and the Client’s dependent or contracted personnel, regardless of the legal relationship they have with the Client.

1.5  THE PARTIES : Klarway and the Users.

1.6  SERVICES : the website https://klarway.com/ as well as all services, products, software, applications, content, information and/or documentation offered, made available, licensed and/or provided by Klarway to the User for the purposes of providing the proctoring service.

1.7  PROCTORING SERVICE : remote supervision, monitoring, surveillance and control service of events, facts, activities, processes, procedures and/or people (such as, but not limited to, exams, competitions, evaluations) through information and communication technologies, linking biometric identity with valid identity documentation, with detection of events during previously defined monitored sessions and control of the environment of the “End Users” during virtual sessions, with the possibility of recording the camera, screen and ambient sound on the provider’s servers or in the cloud.

1.8  SOFTWARE : the “Klarway Proctoring” proctoring software, the Klarway Validator Mobile Application, the Klarway Desktop Application and the Administration Panel.

1.9  “KLARWAY VALIDATOR MOBILE APPLICATION” or “MOBILE APP” : application that, in some cases or with some Clients, is used for the biometric validation of the identity of the “End Users” and that they must download and install on their mobile devices for the purposes of their initial facial registration.

1.10  “KLARWAY DESKTOP APPLICATION” or “DESKTOP APP” : an application that links to the monitoring system and is used to monitor, through video and audio recording, the events and situations that occur during the monitored sessions and to control the use of the computing device by the “End Users”, which they must download and install on their computer and/or computing device. It can also be used for biometric validation of the identity of the “End Users”, which they must download and install on their mobile devices for the purposes of their initial facial registration.

1.11  ADMINISTRATION PANEL : panel used for the management of monitored sessions and records by the Client, as well as for conducting internal audits during or after monitored sessions based on recorded records, and which is managed by the Client’s dependent or contracted personnel.

1.12  PRIVACY POLICY : Klarway’s Privacy Policy (available at the URL: https://klarway.com/privacy-policies/ ).

1.13  DATA PROCESSING AGREEMENT : Contract under which the Client instructs Klarway to process the personal data of its “End Users” for the purposes of providing proctoring services and which regulates the processing of personal data that Klarway will carry out as data processor on behalf of and on behalf of the Client (data controller).

 2. ACCEPTANCE. GENERAL ACKNOWLEDGMENTS

2.1  By the mere fact of carrying out any of the “Acceptance Actions”, the User expressly acknowledges that he or she has read, understands, accepts and fully and unreservedly agrees with each and every one of the provisions of these “General Terms and Conditions” and the “Klarway Privacy Policy” that are in force at the time of carrying out any of the “Acceptance Actions”, which is why the User is recommended to read them periodically, as they may be subject to modifications, revisions and/or updates.

2.2  The User expressly declares that they have carefully and attentively read these “General Terms and Conditions” and the “Klarway Privacy Policy,” expressing their free and full consent to each and every one of their terms and conditions. They also declare that they have the legal capacity to be bound by the terms hereof.

2.3  Access to and/or use of the Services is conditioned on the User’s full and complete compliance with these “General Terms and Conditions” and the “Klarway Privacy Policy.” If the User does not agree with the “General Terms and Conditions” or the “Klarway Privacy Policy,” they must not access, view, browse, register, use, utilize, download, run, and/or in any way interact with the website, services, products, software, applications, content, and/or information offered, made available, licensed, and/or provided by Klarway.

2.4  Access, viewing, browsing, registration, use, utilization, download, execution and/or any other form of interaction with a certain part of the website and/or with certain services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway, may be subject to Specific Conditions specific to said services, products, software, applications, content and/or information (including License Agreements, Service Provision Agreements, Data Processing Agreements, Software Testing Agreements, etc.), which the User, as the case may be, must expressly accept and which, as the case may be, may replace, complement and/or modify these “General Terms and Conditions”, as indicated in each case. Therefore, the User is recommended, as applicable, to carefully read said Specific Conditions before taking any action to accept the aforementioned services, products, software, applications, content and/or information.

2.5  The “End User” expressly acknowledges that they have been informed by the Client, prior to using Klarway’s Services and/or products, about these “General Terms and Conditions,” the “Klarway Privacy Policy,” and/or any specific terms and conditions that apply to a specific service or product that the End User must use for the purposes of providing the proctoring service, of the need for their acceptance for the purposes of using the services and/or products, and of the need for their periodic review. They also expressly acknowledge that they have been previously informed by the Client about the collection and processing of their data and personal information, including their biometric data, and that, where required by applicable law, they have expressly given their consent to the Client for the purposes of providing the proctoring service and the collection and processing of their data and personal information.

2.6  If, when interacting with Klarway’s Services and/or products, you are acting on behalf of the Client, you expressly represent and warrant that you are legally authorized, in accordance with the regulations applicable to the Client, to legally bind the Client to Klarway under the terms of these “General Terms and Conditions” and/or any other specific conditions that bind the Client to Klarway and that you accept them on behalf of and in representation of the Client, being responsible for any consequences that may arise from any lack of or defective authorization.

3. MINOR END USERS

3.1  For the purposes of the use of the Services by minors (Minor End Users), the legal capacity and lawfulness of the processing of personal data will be determined by the law applicable to the minor.

3.2  In the event that a minor user does not meet the minimum age requirement established by applicable law, it will be a necessary and unavoidable condition that the “Minor End User” has the corresponding authorization and/or consent of the holder of parental responsibility or parental authority, the legal representative or guardian of the minor and/or the competent judicial authority, in accordance with the requirements of the legislation in force in the country of residence of the minor End User. If the minor User does not have the aforementioned authorization, they are not authorized to use the Klarway Services.

3.3  It shall be the Client’s sole responsibility to verify that underage End Users have the corresponding authorization, exempting Klarway from any liability in this regard.

3.4  Klarway may immediately terminate, without prior notice, at its sole discretion and without any obligation to indemnify, pay and/or compensate any End User account if it becomes aware that the End User lacks the corresponding authorization.

4. THE SERVICES

4.1  Klarway provides proctoring services, the purpose of which is to provide Clients who contract the services with the possibility of remotely monitoring that certain events, occurrences, facts, activities, processes or procedures have occurred in a certain way and/or that certain people have participated in them or been present throughout the monitoring process until its completion and that they have performed certain behaviors that are of interest to the Client to monitor.

4.2  The User expressly understands and accepts that the Services, especially the Software, the Mobile App, the Desktop App, and the Administration Panel, constitute a tool to enable the monitoring of events, occurrences, facts, activities, processes or procedures and/or people, as mentioned above. This does not imply, in any case, liability for the results of said monitoring, nor for any decisions and/or consequences adopted, which shall be the sole responsibility of the Client that contracted the proctoring services. Klarway expressly clarifies that it does not play any active role in the Client’s decision-making process as a result of the monitoring carried out with respect to the “End Users.”

4.3  Klarway carries out the proctoring service by detecting events and situations of various types, which the Client can access through the Administration Panel. The decision it makes regarding the different types of monitored situations is the sole responsibility of the Client. We recommend that the monitored “End User” consult with the Client regarding the permitted, mandatory, and/or prohibited behaviors in the monitored virtual sessions.

4.4  Likewise, it is noted that, for the purposes of providing proctoring services, Klarway carries out the processes called “KLARWAY VALIDATOR”, “KLARWAY SAFETYPLACE” and “BEHAVIOURAL ANALYSIS BASED ON ARTIFICIAL INTELLIGENCE”, to which the User gives full, total and express consent by carrying out any of the actions of acceptance of these “General Terms and Conditions”.

4.5  The User expressly acknowledges and accepts that Klarway may subcontract the services of third parties for the purposes of providing the Services.

5. CONDITIONS OF USE OF THE SOFTWARE AND ASSOCIATED SERVICES

LICENSE OF USE

5.1  Klarway grants the Client a temporary, non-exclusive, non-transferable license to use the Klarway Proctoring Software, its guides, manuals or instructions, exam protection, and integrate it into its systems as a module or part of other processes or systems that the Client uses in the development of its activity, under the terms and conditions established herein (hereinafter referred to as the “Software License”).

5.2  The Software License shall be valid for the period agreed between Klarway and the Client.

5.3  The Software License granted applies to the Software in its object code form. Klarway is under no obligation to provide the Client with the source code for the Software, applications, the administration panel, and/or any of its component elements.

5.4  The Software License covers the license to use the Desktop App and, where applicable, the Mobile App, which Klarway grants to the “End Users” in accordance with the number of monitored session protection licenses contracted by the Client (number of sessions to be performed), so that the “End Users”, at no additional cost to them on the part of Klarway, may download, install and use them for the provision of the proctoring services contracted by the Client, in accordance with the conditions of use established in point 6 (CONDITIONS OF USE OF THE MOBILE APPLICATION AND THE DESKTOP APPLICATION) of these “General T&Cs”.

5.5  Except as provided in the Specific Conditions, the Software License includes ONE license to use the “Administration Panel”, with an administrator user and the permissions to create other users with the corresponding permissions to view the panel in accordance with the conditions agreed between Klaway and the Client.

ASSOCIATED SERVICES. USER MANUALS.

5.6  Klarway will perform the corresponding tasks for the correct implementation of the Software in an integrated manner with the previously validated computer system (LMS – Learning Management System – or similar) that the Client has in use and operation, so that the Software can be used by the Client in all its functionality. These tasks will consist of the adaptation, compatibility and, eventually, integration of the Software with the Client’s computer system. The Parties will agree on the terms of the Software implementation. In the event that, during the term of the User License, the Client changes the computer system (LMS or similar) for another system and/or updates it and it is necessary to carry out implementation and integration tasks of the Software with the Institution’s new system, Klarway may separately estimate the additional cost of said services, which will be the exclusive responsibility of the Client under the specific conditions agreed upon.

5.7  Klarway will integrate the Software and, eventually, the Updates, into the Client’s systems as a module or part of other processes or systems that the Client uses in the development of its activity.

5.8  The Software License includes successive updates of the Software, which will maintain full functionality throughout the duration of the License of Use.

5.9  Unless otherwise provided in Specific Terms and Conditions agreed upon by Klarway and the Client, the License Agreement does not include any software enhancements that Klarway may develop during its term. For these purposes, “enhancement” shall mean any additional development to the Software that involves new functionality not originally included in the product at the time the contractual relationship between Klarway and the Client was established. The Client may contract for enhancements developed by Klarway during the term of the License Agreement, paying Klarway separately for the additional cost thereof, which shall be the sole responsibility of the Client under the terms agreed upon by the Parties.

5.10  Klarway will provide training on the use, operation and administration of the software to the Client’s dependent or contracted personnel designated by the Client, in accordance with the conditions agreed between Klarway and the Client.

5.11  Klarway designates its “Implementation, Maintenance and Technical Support Department” to maintain contact with process managers designated by the Client for the duration of the contract period for the purposes of management, maintenance, technical support and help desk for the resolution of problems or queries related to the Software, applications and/or Klarway services.

5.12  Klarway will provide the Client with the “User Manuals” as well as instructions for the correct use of the Software, applications and the Administration Panel.

EVENT SETTING. RESPONSIBILITY.

5.13  The Software proctors monitored sessions by detecting various types of events and situations that occur during the session execution by “End Users.” The events and situations are categorized according to different levels of criticality, all of which is automatically performed by the Software according to its default configuration, which the Client acknowledges and expressly accepts.

5.14  The Client may, in certain cases and according to its particular needs, request Klarway to make certain changes to said configuration, so that the Software may or may not detect certain events or situations and/or categorize them as critical, as predetermined. Klarway will evaluate the technical feasibility of fulfilling the Client’s request in each case and may deny the request if it is not feasible.

5.15  The Client expressly states that it is the Client’s sole responsibility to duly inform the “End Users” about the permitted, mandatory or prohibited conduct during the monitored sessions, in accordance with the Client’s internal regulations, as well as to inform about what type of events or situations are detected by the Software during the proctoring of the monitored sessions or about their categorization according to the different levels of criticality.

5.16  The Client expressly acknowledges and represents that Klarway has no obligation to inform the “End Users” of the permitted, mandatory or prohibited conduct during the monitored sessions, nor to inform them about what type of events or situations are detected by the Software during the proctoring of the monitored sessions or about their categorization according to the different levels of criticality.

6. TERMS OF USE OF THE MOBILE APPLICATION, THE DESKTOP APPLICATION AND THE ADMINISTRATION PANEL

RECOGNITIONS

6.1  The “End User” expressly acknowledges that he/she has been duly informed by the Client that for the purposes of provision, by Klarway, of the proctoring service contracted by the Client, he/she must previously download, install and/or access on his/her mobile device, computer and/or computing device, as the case may be, the “MOBILE APP” , the DESKTOP APP or the ADMINISTRATION PANEL , for the purposes of registration and validation of his/her identity, and the “DESKTOP APP” , for the purposes of monitoring, through video and audio recording, the events and situations that occur during the monitored sessions and the control of the use of the computing device, or the management of the monitored sessions and the performance of internal audits, all in accordance with the instructions provided by the Client.

6.2  The “End User” expressly acknowledges that his/her relationship with Klarway is as a person to whom the Client provides its Services and in respect of whom the Client intends to carry out proctoring (client of the Client), or as personnel hired or dependent on the Client, and that he/she downloads, installs, accesses and/or uses the MOBILE APP, the DESKTOP APP and the ADMINISTRATION PANEL at the express indication, instruction or request of the Client.

6.3  The “End User” expressly acknowledges that he/she has been duly informed by the Client about the technological requirements that he/she must have for the download, installation, access, use and execution of the MOBILE APP, the DESKTOP APP and the ADMINISTRATION PANEL.

6.4  The “End User” expressly acknowledges that he/she has been duly informed by the Client that once he/she has downloaded and installed the MOBILE APP or the DESKTOP APP, as the case may be, on his/her phone, computer and/or computing device, he/she must enter it and provide the data requested in the application for the purposes of registration and identity validation through facial recognition, following the steps that will be indicated, and of the realization of the monitored event and that, throughout the session, he/she must comply with the guidelines provided by the Client regarding the actions that are permitted, mandatory or prohibited, as well as regarding the criteria that the Client will take into account in order to determine if the “End User” has complied with the guidelines provided during the monitored session. The “End User” expressly acknowledges that, where required by applicable law, he or she has given his or her consent to the Client for the aforementioned identity validation procedures to be carried out, as well as for the collection and processing of his or her personal identity data, used by the applications for identity validation and monitoring, as well as for the collection and processing of his or her personal data, including his or her biometric data (image of his or her face, body, etc.) and data of his or her environment used by the DESKTOP APP for session monitoring. The “End User” expressly acknowledges that he or she has been duly informed by the Client that the identity validation process will be carried out by comparing his or her personal data registered with the Client with the personal data provided through the applications, and that the monitoring process will be carried out by means of video and audio recording of the monitored session.

6.5  If you are an “End User” and decide not to use the Klarway Services defined by the Client as a proctoring tool, you must give formal notice to the Client through the means provided by the Client.

LICENSE OF USE

6.6  Klarway grants the “End User” a personal, non-exclusive and non-transferable license to install and run the MOBILE APP, the DESKTOP APP and/or the ADMINISTRATION PANEL, as the case may be, on their mobile device, computer or computing device, for the exclusive purposes of providing the proctoring service contracted by the Client.

6.7  In cases where the “End User” carries out the registration and identity validation process through the Mobile App, once said processes have been completed, the “End User” may uninstall the MOBILE APP from his or her mobile device as indicated by the Client.

6.8  In the event of termination of the relationship between Klarway and the Client or between the Client and the “End User”, the License granted herein will automatically terminate, and the “End User” must immediately uninstall the MOBILE APP, the DESKTOP APP and/or the ADMINISTRATION PANEL from their device. Failure to comply with this obligation will result in the “End User” violating the provisions of these “General Terms and Conditions” as well as violating the intellectual and/or industrial property rights of Klarway and/or third parties with whom Klarway maintains a contractual relationship. The “End User” shall be fully liable for all damages caused to Klarway. However, if, after the termination of the services with the Client, the “End User” is receiving services provided by another Client, they shall not be obliged to comply with this obligation.

6.9  Due to the termination of the Services with the Client, the End User’s identity validation data may have been deleted, removed, or is no longer available. In this case, if the End User receives services from another Client, they must re-validate their identity data in accordance with the instructions provided by the relevant Client.

7. INTELLECTUAL PROPERTY

7.1  The website, services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway to the User, including, but not limited to, source and object computer programs, flowcharts, graphic interfaces, design, presentation, selection, organization, arrangement, functionalities, texts, graphics, images, photographs, videos, audios, multimedia works, manuals, slogans, logos, trademarks, icons, files, are protected by national laws and international conventions on Intellectual and/or Industrial Property, including regulations on trade secrets and confidential information, and are the exclusive property and/or ownership of Klarway and/or third parties contractually linked to Klarway.

7.2  Klarway reserves all intellectual and/or industrial property rights to which it belongs, with the exception of content belonging to third parties and the uses expressly authorized in these “General Terms and Conditions” and/or in specific Conditions.

7.3  Klarway guarantees that it has the rights to grant the corresponding authorizations for use of the website, services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway and/or that authorize it to provide the proctoring service. Unless otherwise provided in specific conditions, in the event that the User receives a judicial or extrajudicial claim from a third party based on any violation of copyright, patents, third party trade secrets and/or other intellectual or industrial property rights in relation to the use of the Services, the User must notify Klarway within two (2) business days of becoming aware of said claim, so that Klarway can take the appropriate measures to defend against the claim received.

7.4  The performance of any of the acceptance actions and/or the signing of any agreements or contracts with Klarway relating to the use of the website, services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway does not make the User the author, co-author, owner, joint owner and/or assignee of any of the intellectual and/or industrial property rights over them, nor does it confer any personal, moral and/or patrimonial rights beyond what is expressly provided in these “General Terms and Conditions” and/or in the specific Conditions. In this sense, the User does not acquire nor is entitled to any ownership rights over the Software and Applications, their component elements, structure, flowcharts, look and feel, source code, object code, brands, names, icons, technical documentation or any component element or part of the Software and Applications, including copyrights, intellectual property, invention patents, utility models, trademarks, trade, technical or industrial secrets, industrial designs or models and/or any other intellectual or industrial property right, the User’s rights being limited to the License of Use in the express terms agreed herein and/or in any Particular Conditions.

7.5  The website, services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway are intended for the provision of the proctoring service. Any other use of the same that is not previously and expressly authorized by Klarway is prohibited for the User and constitutes a serious breach of these “General Terms and Conditions” and a violation of the rights of Klarway and/or third parties contractually bound to Klarway, including, but not limited to, copying, storing, translating, modifying, creating derivative works, selling, renting, sublicensing, publishing, displaying, transmitting, streaming, broadcasting, marketing and/or distributing in any form and through any means, whether free of charge or for a fee, of the website, services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway.

8. CONTENT PROVIDED BY USERS

8.1  All content, regardless of type, format and form of transmission, that Users create, originate, send, transmit, communicate, publish, display and/or make available through the Services (hereinafter referred to as “User-Provided Content”) shall be the sole responsibility of the person who created, originated, transmitted, communicated, published and/or made available such content.

8.2  By submitting, transmitting, communicating, publishing, displaying and/or making available any Content through the Services, the User represents and warrants that they are the owner of all intellectual and/or industrial property rights thereto and/or that they have the relevant authorization granted by the owner thereof, applicable law or the competent authority, and, unless otherwise provided in the Specific Conditions, grants Klarway a perpetual, irrevocable and royalty-free worldwide license to use, execute, host, store, process, reproduce, modify, adapt, create derivative works (for example, those resulting from translation, adaptation or other changes), communicate, send, transmit, publish and publicly display such content for the purposes of providing, promoting and improving the Services and/or developing new services. This license will remain in effect even after the termination for any reason of these “General Terms and Conditions” and/or the relationship between Klarway and the User. The User represents and warrants that they have all the necessary rights to grant the aforementioned authorizations.

8.3  Klarway assumes no specific obligation regarding the supervision and/or control of “User-Provided Content,” and therefore assumes no responsibility for such Content. Access to and/or use of any such content and/or materials is at the sole responsibility and risk of the User.

8.4  Klarway does not endorse, support, promote, represent, or guarantee the integrity, truthfulness, accuracy, legality, and/or reliability of any of the “User-Provided Content,” as well as any opinions and/or comments expressed by Users. The User understands that by taking any of the acceptance actions, he or she may be exposed to “User-Provided Content” that is offensive, harmful, inaccurate, illegal, and/or inappropriate, or, in some cases, content that has been mislabeled or is misleading. Under no circumstances will Klarway be liable in any of the “User-Provided Content,” including, but not limited to, any errors or omissions in any Content, or any loss or damage incurred as a result of the use of any such content.

8.5  If any User considers that any of the “User-Provided Content” is offensive, harmful, inaccurate, illegal, misleading and/or inappropriate and/or violates current legislation or these “General Terms and Conditions” and/or is contrary to morality, good customs and/or public order, we request that you contact Klarway through one of the communication channels available through the Services.

8.6  The User expressly assigns to Klarway all property rights that may eventually correspond to him/her with respect to any communication, comment, query, suggestion and/or material that he/she communicates and/or transmits to Klarway, by any means, suggesting and/or recommending modifications, improvements and/or changes to the Services, including new features and/or functionalities, ideas, knowledge, concepts, techniques, procedures, methods, designs, diagrams, computer programs and/or any other works, discoveries, inventions and/or know-how applicable and/or related to the Services. He/she also consents to provide Klarway with assistance in documenting, perfecting and/or maintaining the rights to said communications, comments, queries, suggestions and/or materials. The User expressly acknowledges and accepts that Klarway will be the sole and exclusive owner of the intellectual and/or industrial property rights over said communications, comments, questions, suggestions and/or materials and that it may freely use and/or exploit them, without any restriction, without the need for additional and/or specific authorization from the User and without being obliged to pay compensation, royalties, payment and/or indemnity of any kind, for any reason, to the User.

8.7  Klarway is not obligated to store, retain, and/or provide copies of any content that the User has provided when using the Services, except as agreed in the Specific Conditions.

8.8  Klarway reserves the right to retain, eliminate, suppress and/or discard, without prior notice, at its sole discretion and without any compensation, payment and/or compensation in favor of the User whose content has been eliminated or whose access has been prevented, any Content provided by the User, if it considers that it is contrary to these “General Terms and Conditions”, to the specific Conditions, to the current and applicable laws and/or to the uses and customs.

9. CLAIMS FOR VIOLATION OF THIRD PARTY RIGHTS

9.1  Klarway respects the intellectual and/or industrial property rights of third parties and expects the same from the Users of its Services.

9.2  Klarway will respond to notifications of alleged infringements of intellectual and/or industrial property rights that comply with the law and are notified to it in accordance with the procedure described below.

9.3  If you believe that any Content owned and/or held by you has been used in a way that violates your intellectual and/or industrial property rights, please provide us with the following information: (i) the details of the owner of the intellectual and/or industrial property rights or the person authorized to act on their behalf, including relevant identification and representation documentation; (ii) identification of the work, information, and/or trademark protected by the intellectual and/or industrial property rights that may have been infringed; (iii) identification of the content that may be infringing your rights, as well as information reasonably sufficient to allow for its identification and unique and precise location (URL or similar); (iv) your contact information, including your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that use of the content in the manner indicated is not authorized by the intellectual and/or industrial property owner, its agent, or the law; (vi) a statement by you that the information in this notification is accurate and that you are authorized to act on behalf of the owner of the intellectual and/or industrial property rights in question; (vii) documentation that certifies ownership of the intellectual and/or industrial property rights of the claimant (for example, title deed and/or registration number with the relevant national, regional, or international authority).

9.4  Klarway reserves the right to remove and/or prevent access, viewing, communication, publication, and/or distribution of any content that allegedly infringes intellectual and/or industrial property rights without prior notice, at its sole discretion, and without any compensation, payment, and/or indemnification to the User whose content has been removed or whose access has been prevented. Under appropriate circumstances, Klarway may also terminate a User’s account if it determines that the User has in any way violated these “General Terms and Conditions,” the Specific Conditions, current laws regarding intellectual and/or industrial property, and/or any instructions given by Klarway to the User.

9.5  For the purposes of the procedure described in this clause, infringements of intellectual and/or industrial property rights must be notified to the following email address info@klarway.com , with the subject: “INTELLECTUAL AND/OR INDUSTRIAL PROPERTY VIOLATION”.

10. CONFIDENTIALITY

10.1  In connection with and/or in connection with the performance of any of the actions for acceptance and/or the execution, fulfillment or termination of these “General Terms and Conditions” and/or any other specific Conditions, the User may access valuable confidential technical and/or commercial information, trade secrets and/or personal data that is the property and/or under the legitimate control of Klarway and/or third parties that have entrusted them to Klarway.

10.2  For the purposes of maintaining the confidentiality, safekeeping, reserve and/or secrecy of such information, the User expressly acknowledges that maintaining absolute reserve and confidentiality regarding each and every one of these information, secrets and/or personal data constitutes an essential condition of his/her relationship with Klarway, given that knowledge by third parties of such information, secrets and/or personal data would deprive Klarway and/or the third parties who have entrusted such information to Klarway of the possibility of maintaining the peaceful and exclusive possession and enjoyment of the benefits derived therefrom and/or would place it in default with respect to its obligation to keep and reserve secrets towards the third party owners and/or legitimate holders of them who have entrusted and/or transmitted them to it, or would cause illegitimate damage to other Users and/or third parties.

10.3  Due to the foregoing, the User undertakes to use all information, secrets and/or personal data to which he/she has access due to or on the occasion of his/her relationship with Klarway and to use them only for the provision by Klarway of the proctoring service, and to preserve the confidential information, secrets and/or personal data to which he/she accesses or which are revealed to him/her, keeping them in strict reserve and confidentiality, assuming responsibility for the damages and losses that may be generated by the unauthorized access and/or disclosure of the same.

10.4  If You are an End User of the Services in your capacity as a dependent or contracted employee of the Client, You expressly represent and acknowledge that You have been specifically informed by the Client prior to using the Services, about the confidentiality obligations You have with respect to the personal data and information of the monitored “End Users” (for example, but not limited to, students, contestants, persons examined or evaluated, among others) to which You access due to or on the occasion of the use of the Services and/or any other services or products that Klarway provides, provides and/or makes available to the Client (for example, but not limited to, through the Administration Panel of the Klarway Proctoring Software).

10.5  The obligations of confidentiality and secrecy will remain in force as long as the information remains confidential or secret.

11. USER ACCOUNT SECURITY

11.1  The User is solely responsible for the security of his or her account, for managing the security settings made available to him or her, and for everything that happens in his or her account until it is closed.

11.2  If you are an “End User,” you expressly acknowledge that you have been previously informed by the Client about your responsibility for the security of your account, in accordance with the instructions and guidelines provided by the Client.

11.3  Klarway will not be liable for any damage or loss suffered by the User due to failure to comply with obligations related to the security of his or her account and password.

12. USE OF THE SERVICES. USER RESPONSIBILITY

12.1  The User agrees to use the Services offered, made available, licensed and/or provided by Klarway in accordance with the conditions established in these “General Terms and Conditions” and/or any other specific Conditions and other instructions issued by Klarway, the current legal system, good faith and public order.

12.2  The User expressly acknowledges and represents that the use of the Services offered, made available, licensed, and/or provided by Klarway is under his or her sole and exclusive responsibility. Furthermore, the User acknowledges and accepts that he or she is solely responsible for his or her conduct and activities, as well as for what occurs in his or her environment during the proctoring process, and that he or she is fully aware that the proctoring service operates by detecting “incidents.”

12.3  The User shall be liable for any damages, regardless of their nature, that Klarway, its associated or linked companies, partners, directors, representatives, suppliers, contracted or dependent personnel may suffer as a result of the breach of any of its obligations arising, directly or indirectly, from these “General Terms and Conditions” and/or any specific Conditions, other indications or suggestions provided by Klarway or from the current legal system, expressly and without reservation obligating itself to hold Klarway harmless from any third party claim, whether direct or indirect, extrajudicial or judicial.

13. PROHIBITIONS. ACCEPTABLE USE POLICY

13.1  The User is strictly prohibited from using the Services offered, made available, licensed and/or provided by Klarway to carry out activities that are contrary to these “General Terms and Conditions”, the “Data Processing Agreement”, any Specific Conditions, the current and applicable legal system and public order, morality and good customs or that harm the interests or rights of Klarway, other Users or third parties.

13.2  By way of example only, the following activities are expressly prohibited for the User:

13.3  The unauthorized use, transmission, disclosure, display, reproduction, copying or distribution of any information, content, products, software or applications that you access, download or run through the Services.

13.4  The sending, transmission, publication, disclosure or distribution of information, content or files that are inaccurate, misleading, illegal, harmful, threatening, abusive, libelous, defamatory, vulgar, obscene, pornographic, invasive of privacy or discriminatory or that the User is not authorized to send, transmit, publish, disclose or distribute due to legal, administrative, contractual provisions and/or any condition and/or policy of use and/or service, commercial policy, privacy policy and/or any other condition and/or regulation.

13.5  Carrying out activities that infringe intellectual property rights, industrial property rights, and/or the trade, industrial, or business secrets of Klarway, other Users, or third parties, as well as confidentiality obligations assumed with them.

13.6  The sending, transmission, publication, disclosure or distribution of information, content or files that consist of unsolicited or unauthorized advertising, promotional materials, junk mail, spam and/or similar messages.

13.7  The sending, transmission or introduction of computer viruses and/or other malicious computer codes or programs or files aimed at interrupting, destroying, disabling or limiting the functionality of any software, hardware, systems, networks or computer equipment or aimed at accessing, collecting, modifying, diverting, communicating and/or disclosing private information of other Users and/or third parties or that disable, interrupt, render useless, damage, overload or interfere with the Services offered, made available, licensed and/or provided by Klarway.

13.8  Accessing or attempting to access the Services offered, made available, licensed and/or provided by Klarway using a method other than that authorized by Klarway.

13.9  The use of reverse engineering techniques, as well as decompiling, disassembling, disassembling, decrypting and/or otherwise attempting to obtain the source code of any computer program, software or application owned by Klarway and/or third parties contractually linked to Klarway used for the provision of the services offered, made available, licensed and/or provided by Klarway.

13.10  The removal, blocking, distortion or concealment of legal notices, copyright, trademarks and/or other intellectual or industrial property rights, the technical devices for protecting such rights, as well as any advertising or communications from Klarway that appear in services offered, made available, licensed and/or provided by Klarway.

13.11  The use of the services offered, made available, licensed and/or provided by KLARWAY to process personal data in violation of current regulations on personal data protection, in particular the provisions on the processing of sensitive data or special categories of personal data.

13.12  Carrying out any type of activity that involves violating the rights of other Users or third parties regarding their privacy, honor, right to image, confidentiality of communications, and/or protection of personal data.

13.13  Carrying out activities that interfere with or disrupt in any way the Services offered, made available, licensed and/or provided by Klarway.

14. AUTHORIZATION TO USE NAME

14.1 The Client authorizes Klarway to use its name, trade name, company name, trademarks, logos, and product and service brands for the purpose of including it in Klarway’s list of Clients and to use and incorporate them into its website, publications, brochures, flyers, and any other advertising or commercial element, or in marketing campaigns, press releases, and, in general, to use them as long as it does not affect the Client’s corporate image. Such use is granted for that sole and exclusive purpose, and Klarway may not make any use other than that stated in this clause. For such authorization, Klarway will not owe the Client any consideration, compensation, indemnity, royalties, or any payment whatsoever.

15. HYPERLINKS

15.1  The link to the website https://klarway.com/ from other sites or web pages, in whole or in part, must be made in accordance with current legislation, the rules of good faith, morality and public order and these “General Terms and Conditions” and in such a way that it does not imply unfair competition, or injury, impairment, violation and/or damage to the rights and/or legitimate interests of Klarway, who reserves the right to take legal action otherwise.

15.2  The website https://klarway.com/ , the services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway, may include within their content links to websites, blogs, etc., belonging to and/or managed by third parties for the purpose of facilitating access to information available via the Internet. Klarway assumes no liability arising from the existence of links between the contents of the website https://klarway.com/ , the services, products, software, applications, content and/or information offered, made available, licensed and/or provided by KLARWAY and content located outside of it and/or any other mention of content external to it; their link or connection does not imply sharing the opinions reflected therein and respects the intellectual property rights that their authors and/or owners may hold over said content. In the event of a claim, the user must contact the person responsible for the relevant website, blog, etc.

16. WARRANTY. LIMITATION OF LIABILITY

16.1  The User expressly understands and agrees that Klarway provides the Services to the User on an “AS IS” and “AS AVAILABLE” basis.

16.2  Klarway provides its Services with a reasonable level of skill and diligence. However, we do not warrant or guarantee that the Services will be 100% effective and/or uptime, will operate uninterruptedly, will be available without interruption, will meet Users’ needs, or that they will be free of errors or failures. Notwithstanding the foregoing, we will make every effort to ensure that the Services are at least 95% effective and/or uptime.

16.3  Except as agreed in the Specific Conditions and the guarantees expressly established by applicable legislation as non-waivable and to the extent, scope and extension provided by applicable law, Klarway does not offer any specific guarantee, whether implicit or explicit, and disclaims any type of guarantee in relation to the Services. In particular, Klarway does not grant any guarantee and assumes no liability for damages caused to the User or third parties: (i) if its Services are not used in accordance with the instructions or suggestions provided by Klarway; (ii) if its Services are not used in accordance with the technological requirements necessary for such purposes; (iii) if the defect is caused by a defective functioning of the LMS or the Client’s computer system that has been integrated with the Klarway Services; (iv) if the defect is caused by a defective functioning of the device, hardware or software used by the User; (v) if the defect is caused by problems with the User’s access or connection to the Internet or the electrical network; (vi) if the defect is caused by the performance of any of the prohibited activities as set forth in the Acceptable Use Policy (clause 13 of these “General Terms and Conditions”); (vii) if the defect is caused by force majeure, fortuitous event or any other event resulting from causes not exclusively attributable to Klarway.

16.4  No advice or information, whether oral or written, obtained from Klarway and/or through the Services will create any warranty not expressly stated in these “General Terms and Conditions”, except as provided in the Specific Conditions.

16.5  To the extent permitted by applicable law and except as expressly agreed in specific terms and conditions, under no circumstances shall Klarway, its affiliated or associated companies, partners, directors, representatives, suppliers, contracted or dependent personnel be liable for any indirect damages, loss of profits, loss of opportunity, punitive damages or damages resulting from loss of data, damage to computer systems or devices, interruption of business and/or the User’s activities, resulting from the use or inability to use the Services, failures in accessing them, lack of availability, failure and/or discontinuity of the Services and/or the use of the Services by other Users.

16.6  The User shall be solely responsible for determining the results to be obtained through the use of the Services, as well as for determining whether their use is appropriate for their needs. Under no circumstances shall Klarway assume any liability for the results obtained and/or the decisions the User makes and/or fails to make in connection with or in connection with the use of the Services.

16.7  The User expressly accepts that he or she is solely and exclusively responsible for his or her use of the Services and that Klarway shall not be liable for any unauthorized access, copying, alteration and/or deletion of data, information or files that may be made by third parties on its Services, nor for any consequences and/or damages, whether direct or indirect, in cases where the User has used the Services in a manner contrary to the instructions or suggestions provided by Klarway.

16.8  To the extent permitted by law, Klarway’s total coverage for any claim related to the services, including any implied warranties, is limited to the amount the User has paid to use the services.

17. TERMINATION OF THESE TERMS AND CONDITIONS

17.1  These “General Terms and Conditions” will apply until such time as Klarway or the User terminates them in accordance with the provisions herein, except as provided in any specific Terms and Conditions.

17.2  The Parties may terminate these “General Terms and Conditions” without cause by notifying the other Party thirty (30) calendar days in advance of the intended termination date.

17.3  In the event of non-compliance with any of the obligations stipulated in these “General Terms and Conditions” and/or any other specific Conditions, the complying Party may terminate the relationship if the non-complying Party persists in non-compliance after being summoned to comply through the means of notification provided for in these “General Terms and Conditions”, and may also claim full damages arising from said non-compliance.

17.4  The termination of these “General Terms and Conditions” and/or any other specific Conditions by the will of either Party shall not release the Parties from compliance with their outstanding obligations up to the date of termination.

17.5  Termination of these “General Terms and Conditions”, regardless of the cause or reason, will automatically terminate the licenses granted by Klarway to use and/or execute the Software and the Services, and the User must uninstall any Klarway program, software and/or application that they have downloaded to their smartphone, computer, server and/or computing device for the purposes of providing the Services.

17.6  The provisions herein shall be without prejudice to Klarway’s ability to legally claim damages from the User resulting from non-compliance with these “General Terms and Conditions” or violations of the rights of Klarway and/or third parties contractually bound to Klarway.

17.7  Clauses 7 (INTELLECTUAL PROPERTY), 8 (CONTENT PROVIDED BY USERS), 10 (CONFIDENTIALITY), 15 (WARRANTY. LIMITATION OF LIABILITY), 20 (INDEPENDENCE AND INDEMNITY) and 22 (APPLICABLE LAW AND COMPETENT JURISDICTION) will remain in full force and effect even after the relationship between the Parties has ended for any reason.

17.8  The provisions of this clause shall apply to any special conditions, unless otherwise provided.

17.9  If you are an “End User” and have any questions or complaints regarding the request to cancel your account or the deletion of your personal data that may still be stored on Klarway’s servers, you may submit your questions or complaints by sending an email to info@klarway.com with your personal information: full name, ID, and details of the Klarway Customer you are associated with. Klarway will respond to your questions or complaints within 48 business hours of receiving them.

18. MODIFICATIONS

18.1  These “General Terms and Conditions” may be periodically reviewed, modified or updated by Klarway unilaterally and at its sole discretion.

18.2  Revisions, modifications, or updates will become effective and fully effective upon their publication on the Klarway website, services, products, software, content, and/or information, without the need for additional notification to the User. Klarway will notify the Customer via the email address provided by the Customer in accordance with Section 21 (NOTIFICATIONS) or by other means of direct notification.

18.3  The User’s continued use of the Services following the publication of the revised, modified, or updated “General Terms and Conditions” will mean that the User fully accepts and agrees to the changes made.

18.4  Klarway recommends that the User periodically review these “General Terms and Conditions” so that they may be aware of any revisions, modifications and/or updates that may have been made, as they are binding on the User.

19. INDEPENDENCE OF THE CLAUSES

19.1  In the event that any part of these “General Terms and Conditions” and/or any specific conditions are declared invalid by any authority, the remaining clauses will remain in full force and effect.

19.2  Klarway’s failure to enforce any right or provision of these “General Terms and Conditions” or any of the Specific Conditions shall not be deemed a waiver of such right or provision.

20. ASSIGNMENT OF THE TERMS AND CONDITIONS AND THE LICENSE

20.1  Klarway may transfer all or part of the rights and obligations arising from the “General Terms and Conditions” and/or any other specific conditions agreed upon with the User, unless otherwise provided therein.

20.2  The User may not assign, sublicense, rent, and/or otherwise transfer the rights and obligations arising from the “General Terms and Conditions,” including the Software License, the Applications, and the Administration Panel granted by Klarway, the “Data Processing Agreement,” and/or any other specific conditions.

21. INDEPENDENCE AND INDEMNITY

21.1  Klarway and the Client declare that these “General Terms and Conditions” are not of an associative nature, nor is it the intention of Klarway and the Client to form a company, association, joint venture, temporary business association, etc. For this reason, Klarway and the Client state that they will be solely responsible to third parties for the provision of services corresponding to the respective commercial line of business of each of them. In particular, it is agreed that all employees and/or service providers used by Klarway and the Client will be employed and/or contracted exclusively by them, regardless of the location in which they provide the services, and that all payments and other legal, fiscal and/or labor obligations that the legal relationship entails will be the exclusive responsibility of each one.

21.2  Klarway and the Client shall hold each other harmless from any claim that one or more third parties may initiate against the other Party, when there is any type of liability due to the exclusive fault of one of them and liability of the other Party is invoked by the claimant.

22. NOTIFICATIONS

22.1  For all purposes of these “General Terms and Conditions” and/or any other specific conditions, the following email addresses are established, where notifications will be valid:

22.1.1  Klarway: info@klarway.com or as designated by Klarway in the future.

23.1.2  The Client: the email address used to register in the Administration Panel.

24.1.3  The End User: the email address used for the account in the MOBILE APP or the DESKTOP APP.

22.2  The responsibility for keeping the email addresses indicated up to date and periodically checking them lies with their respective owners.

23. APPLICABLE LAW AND COMPETENT JURISDICTION

23.1  These “General Terms and Conditions” are subject in all respects to the laws in force in the Argentine Republic, with the exception of its conflict of laws rules.

23.2 Any dispute arising from these “General Terms and Conditions” and/or any specific Conditions, their existence, validity, interpretation, scope or compliance, shall be submitted to the Ordinary Courts of the City of Córdoba (Province of Córdoba, Argentine Republic), with the User expressly waiving any other jurisdiction or venue that may apply to them, including federal jurisdiction.

24. CONTACT INFORMATION

24.1  If you have any questions, queries or complaints related to these “General Terms and Conditions” and/or the website, services, products, software, applications, content and/or information offered, made available, licensed and/or provided by Klarway, please contact us via our email address  info@klarway.com or through any of the communication channels made available on our website klarway.com .