User Content. “User Content” means any and all information and content that a user submits to the Site.
You are exclusively responsible for your User Content. You bear all risks associated with u
se of your User
Content. You hereby certify that your User Content does not violate our Acceptable Use Policy or any
legal rights of others. You may not represent or imply to others that your User Content is in any way
provided, sponsored or endorsed by
Company. Because you alone are responsible for your User
Content, you may expose yourself to liability. The Company is not obliged to backup any User Content
that you post; also, your User Content may be deleted at any time without prior notice to you. You
are
solely responsible for making your own backup copies of your User Content if you desire. You will
indemnify and hold harmless from any loss or damage occasioned by the Company deriving from your
use of the Site and your use of the User Content
You he
reby grant to Company an irreversible, nonexclusive, royalty
-
free and fully paid, worldwide
license to reproduce, distribute, publicly display and perform and prepare derivative works of,
incorporate into other works, and otherwise use and exploit your Use
r Content, and to grant sublicenses
of the foregoing rights, solely for the purposes of including your User Content in the Site. You hereby
irreversibly waive any claims and assertions of moral rights or attribution with respect to your User
Content.
Acce
ptable Use Policy. The following terms constitute our “Acceptable Use Policy”. You agree not to use
the Site to collect, upload, transmit, display, or distribute any User Content (i) that violates any third
-
party right or any intellectual property or propr
ietary right; (ii) that is unlawful, harassing, abusive,
tortious, threatening, terror promoting, harmful, invasive of another’s privacy, vulgar, defamatory, false,
intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promot
es racism,
bigotry, hatred, or physical harm of any kind against any group or individual; (iii) that is harmful to
minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed
by any third party.
In additio
n, you agree not to: (i) upload, transmit, or distribute to or through the Site any software
intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or
unauthorized advertising, promotional materials, junk mail, spam,
chain letters, pyramid schemes, or
any other form of duplicative or unsolicited messages; (iii) use the Site to harvest, collect, gather or
assemble information or data regarding other users without their consent; (iv) interfere with, disrupt, or
create an
undue burden on servers or networks connected to the Site, or violate the regulations, policies
or procedures of such networks; (v) attempt to gain unauthorized access to the Site, whether through
password mining or any other means; (vi) harass or interfe
re with any other user’s use and enjoyment of
the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or
to generate automated searches, requests, or queries to the Site.
We reserve the right to review any Us
er Content, and to investigate and/or take action against you in
our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or
otherwise create liability for us or any other person. Such action may include removing o
r modifying
your User Content, terminating your Account, and/or reporting you to law enforcement authorities.
If you provide the Company with any feedback or suggestions (“Feedback”) regarding the Site, you
hereby assign to the Company all rights in such
Feedback and agree that the Company shall have the right to use and fully exploit such Feedback and related information in any manner it believes
appropriate. The Company will treat any Feedback you provide to the Company as non
-
confidential and
non
-
propr
ietary.
You agree to indemnify and hold the Company and its officers, employees, and agents harmless,
including costs and attorneys’ fees, from any claim or demand made by any third
-
party due to or arising
out of (a) your use of the Site, (b) your violatio
n of these Terms, (c) your violation of applicable laws or
regulations or (d) your User Content. The Company reserves the right to assume the exclusive defense
and control of any matter for which you are required to indemnify us, and you agree to fund and
cooperate with our defense of these claims. You agree not to settle any matter without the prior
written consent of the Company. The Company will use reasonable efforts to notify you of any such
claim, action or proceeding upon becoming aware of it.
Thi
rd
-
Party Links & Ads; Other Users
Third
-
Party Links & Ads. The Site may contain links to third
-
party websites and services, and/or display
advertisements for third parties. Such Third
-
Party Links & Ads are not under the control of the
Company, and the Com
pany is not responsible for any Third
-
Party Links & Ads. The Company provides
access to these Third
-
Party Links & Ads only as a convenience to you and does not review, approve,
monitor, endorse, warrant, or make any representations with respect to Third
-
P
arty Links & Ads. You
use all Third
-
Party Links & Ads at your own risk and should apply a suitable level of caution and
discretion in doing so. When you click on any of the Third
-
Party Links & Ads, the applicable third party’s
terms and policies also appl
y, including the third party’s privacy and data gathering practices.
Other Users. Each Site user is solely responsible for any and all of its own User Content. Because we do
not control User Content, you acknowledge and agree that we are not responsible f
or any User Content,
whether provided by you or by others. You agree that Company will not be responsible for any loss or
damage incurred as the result of any such interactions. If there is a dispute between you and any Site
user, we are under no obligat
ion to become involved.
You hereby release and forever discharge the Company and our officers, employees, agents, successors,
and assigns from, and hereby waive and relinquish, each and every past, present and future dispute,
claim, controversy, demand, ri
ght, obligation, liability, action and cause of action of every kind and
nature, that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the
Site. If you are a California resident, you hereby waive California civ
il code section 1542 in connection
with the foregoing, which states: “a general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of executing the release, which if known by
him or her mu
st have materially affected his or her settlement with the debtor.”
Cookies and Web Beacons. Like any other website our Site uses ‘cookies’. These cookies are used to
store information including visitors’ preferences, and the pages on the website that the
visitor accessed
or visited. The information is used to optimize the users’ experience by customizing our web page
content based on visitors’ browser type and/or other information.
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify
you
by sending you an e
-
mail to the last e
-
mail address you provided to us and/or by prominently
posting notice of the changes on our Site. You are responsible for providing us with your most current
e
-
mail address. In the event that the last e
-
mail address
that you have provided us is not valid our
dispatch of the e
-
mail containing such notice will nonetheless constitute effective notice of the changes
described in the notice. Any changes to these Terms will be effective upon the earliest of ten (10)
calend
ar days following our dispatch of an e
-
mail notice to you or ten (10) calendar days following our
posting of notice of the changes on our Site. These changes will be effective immediately for new users
of our Site. Continued use of our Site following not
ice of such changes shall indicate your
acknowledgement of such changes and agreement to be bound by the terms and conditions of such
changes. Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract
with Company an
d affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION
AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. All claims and disputes in connection with the Terms or the use
of any product or service provided by the Co
mpany that cannot be resolved informally or in small claims
court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration
Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in Engli
sh. This
Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents,
employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized
users or beneficiaries of services or goods
provided under the Terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the
party must first send to the other party a written Notice of Dispute describing the nature and basis ofthe claim or dispute, and t
he requested relief. A Notice to the Company should be sent to:
301
–
3450
Uptown Blvd
, V
ictoria
, BC V
8Z 0B9
. After the Notice is received, you and the Company may attempt to
resolve the claim or dispute informally. If you and the Company do not resolve
the claim or dispute
within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding.
The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after
the arbitrator has determi
ned the amount of the award to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the Vancouver International Arbitration Centre
(or, if not available, such alternate in Vancouver as the Company may in its sole discre
tion select). The
arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total
amount of the award sought is less than fifty Thousand U.S. Dollars (US $50,000.00) may be resolved
through binding non
-
appearance
-
bas
ed arbitration, at the option of the party seeking relief. For claims
or disputes where the total amount of the award sought is fifty Thousand U.S. Dollars (US $50,000.00) or
more, the right to a hearing will be determined by the Arbitration Rules. Any j
udgment on the award
rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator
grants you an award that is greater than the last settlement offer that the Company made to you prior
to the initiation of arbitration
, the Company will pay you the greater of the award or $2,500.00. Each
party shall bear its own costs and disbursements arising out of the arbitration and shall pay an equal
share of the fees and costs of the arbitrator.
Additional Rules for Non
-
Appearanc
e Based Arbitration. If non
-
appearance based arbitration is elected,
the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the
specific manner shall be chosen by the party initiating the arbitration. The arbit
ration shall not involve
any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If you or the Company pursues arbitration, the arbitration action must be initiated and/or
demanded within the statute of limi
tations of British Columbia.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities of you
and the Company, and the dispute will not be consolidated with any other matters or joined with any
other cases
or parties. The arbitrator shall have the authority to grant motions dispositive of all or part
of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non
-
monetary remedy or relief available to an individual und
er applicable law and the Terms. The arbitrator
shall issue a written award and statement of decision describing the essential findings and conclusions
on which the award is based. The arbitrator has the same authority to award relief on an individual
ba
sis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you
and the Company and may be enforced by British Columbia courts as a judgement.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND
STATUTORY RIGHTS TO
GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and
disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are
typically more limited, more effic
ient and less expensive than rules applicable in a court and are subject
to very limited review by a court. In the event any litigation should arise between you and the Company
in any state or federal court in a suit to vacate or enforce an arbitration aw
ard or otherwise, YOU AND
THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a
judge.
Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this arbitration
agreement must be arbitr
ated or litigated on an individual basis and not on a class basis, and claims of
more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of
any other customer or user.
Confidentiality. All aspects of the arbitrat
ion proceeding shall be strictly confidential. The parties agree
to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party
from submitting to a court of law any information necessary to enforce this Agreement,
to enforce an
arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement or the Terms are found under the law to
be invalid or unenforceable by a court of competent jurisdiction, then suc
h specific part or parts shall be
of no force and effect and shall be severed and the remainder of the Agreement and Terms shall
continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agree
ment may be
waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other
portion of this Arbitration Agreement.
Survival of Agreement. This Arbitration Agreement and Terms will survive the termination of your
relationship with Company.
Emergency Equitable Relief. Despite the foregoing, either party may seek emergency equitable relief
before a British Columbia court in order to maintain the status quo pending arbitration. A request for
interim measures shall no
t be deemed a waiver of any other rights or obligations under this Arbitration
Agreement.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the
Computer Fraud and Abuse Act, and infringement or misappropri
ation of the other party’s patent,
copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement but shall be
pursued in a British Columbia court.
The Site may be subject to U.S. export control laws and may be subject to export o
r import regulations
in other countries. You agree not to export, re
-
export, or transfer, directly or indirectly, any U.S.
technical data acquired from the Company, or any products utilizing such data, in violation of the United
States export laws or regul
ations.
Electronic Communications. The communications between you and the Company use electronic means,
whether you use the Site or send us emails, or whether the Company posts notices on the Site or
communicates with you via email. For contractual purpose
s, you (a) consent to receive communications
from the Company in an electronic form; and (b) agree that all terms and conditions, agreements,
notices, disclosures, and other communications that the Company provides to you electronically satisfy
any legal o
bligation that such communications would satisfy if it as would be in a hard copy writing.
Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the
Site. Our failure to exercise or enforce any right or provision
of these Terms shall not operate as a waiver
of such right or provision. The word “including” means “including without limitation”. If any provision of
these Terms is held to be invalid or unenforceable, the other provisions of these Terms will be unimpai
red, and the invalid or unenforceable provision will be deemed modified so that it is valid and
enforceable to the maximum extent permitted by law. Your relationship with the Company is that of an
independent contractor, and neither party is an agent or p
artner of the other. These Terms, and your
rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred
by you without the Company’s prior written consent, and any attempted assignment, subcontract,
delegation, or
transfer in violation of the foregoing will be null and void. The Company may freely assign
these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
Your Privacy. Please read our Privacy Policy.
Copyright/Trademark
Information. Copyright ©. All rights reserved. All trademarks, logos and service
marks displayed on the Site are our property or the property of other
third parties
. You are not
permitted to use these Marks without our prior written consent or the consen
t of such third party which
may own the Marks.