Welcome to Kickass Transformations, a company located in Kingston, Ontario, Canada – herein referred to as “Company”. Company is an online platform offering health, fitness, wellness and transformation content, information, services, and products via the website https://kickasstransformations.com and any other website, channel, application, mobile feature, and/or platform we operate (together, “Site”). In these Terms and Conditions of Use ("Terms"), the use of the words “Company,” “we,” “our,” and “us” refer to Kickass Transformations. The words “user,” “you,” and “your” refer to entities or individuals that access and/or use the Site. These Terms do not alter in any way the terms or conditions of any other agreement you may have with us. If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf.

  1. PLEASE READ CAREFULLY

These Terms govern your access to and use of the Site provided by Company. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE. BY ACCESSING THE SITE AND/OR CREATING A USER ACCOUNT, YOU AGREE TO BE BOUND BY ALL OF THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE SITE. COMPANY’S ACCEPTANCE OF YOUR ACCESS TO OR USE OF THE SITE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THESE TERMS.

 

  1. Transformation Results, Professional & Medical Advice Disclaimer

The material on the Site is provided for educational purposes only, and is not to be used for medical advice, diagnosis, or treatment. Use of the Site is subject to our Terms.

TRANSFORMATION RESULTS ARE NOT GUARANTEED. ACTIVITY, EXERCISE, EFFORT, CONSISTENCY AND PROPER CALORIC CONSUMPTION ARE NECESSARY FOR SUSTAINABLE FAT LOSS AND MUSCLE GAIN. RESULTS WILL VARY FOR EVERY CLIENT.

THE SITE OFFERS HEALTH, FITNESS, AND NUTRITIONAL INFORMATION AND ARE DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID, OR DELAY OBTAINING MEDICAL OR HEALTH-RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR VIEWED ON THE SITE. THE USE OF ANY INFORMATION PROVIDED ON THE SITE IS SOLELY AT YOUR OWN RISK. YOU SHOULD ALWAYS CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE STARTING THIS OR ANY FITNESS  OR FAT LOSS PROGRAM. YOU SHOULD NOT PARTICIPATE IF YOU ARE ADVISED AGAINST IT.

NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY OF OUR SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH-CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS, OR ADVICE.

 

THE SITE IS CONTINUALLY UNDER DEVELOPMENT AND COMPANY MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS, OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS, AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SITE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

 

 

  1. Third Parties and Polices

Please be aware that when you access and/or use certain features of the Site, your access to or use of such features will also be subject to all guidelines, terms, agreements, and conditions applicable to such features, including third party policies (the “Policies”). All such Policies are incorporated into these Terms by reference, and if the applicability of these Terms is incompatible with your access to or use of the Services, the relevant terms of such third party Policies will control.

 

  1. Changes

We reserve the right to change or modify these Terms or any Policy and the Site we offer at any time without notice to you to reflect changes in our practices or keep current with relevant laws or industry standards. We also retain the right to create limits on your use and storage of User Content (defined below) at our sole discretion at any time without prior notice to you. In addition, Company may stop (permanently or temporarily) providing the Site (or any features within the Site) to you or to users generally and may not be able to provide you with prior notice. We may attempt to notify any registered users of material changes by sending an email to the email address you most recently provided us in your User Account (defined below), profile, or registration (unless we do not have such an email address), and/or by posting notice of the changes on the Site. Your access to and/or use of the Site will be subject to the most current version of these Terms posted on the Site at the time of your access or use. We recommend that you check the Site from time to time to inform yourself of any changes in these Terms, and stay apprised of any other Policies that may be applicable; you are solely responsible for reviewing and becoming familiar with any modifications to these Terms.

 

  1. Us

Company’s proprietary content, including videos, designs, text, graphics, pictures, information, Services, data, software (and the selection and arrangement thereof) logos, and code (collectively, the “Site Materials”) are all property of Company and are protected by intellectual property laws, and except as permitted under these Terms, Company expressly reserves all right, title, and interest in and to the content and services of the Site and Site Materials, aggregate data, and reports, and all processing, analytics, and other software and technology used by Company in the analysis of User Content (as defined below) and/or the provision of the Site, including, without limitation, any derivatives, improvements, enhancements, or extensions thereof conceived, reduced to practice, or otherwise developed on or on behalf of Company, all of which are valuable assets of Company, and any copyright, patent, trademark, or any other intellectual property right, or federal or state right, pertaining thereto.

UNAUTHORIZED USE, MODIFICATION, REPUBLISHING, TRANSMITTING, DISTRIBUTING, OR DUPLICATING OR ANY OTHER MISUSE OF THE SITE OR SITE MATERIALS BY YOU IS PROHIBITED.

 

  1. You

The Site may now or in the future allow users to select, input, upload, and share information and data in connection with the Site and allow you or other users to post, link, store, or otherwise make available a wide variety of information, text, and/or other materials in connection with the use of the Site or otherwise (collectively, “User Content”). You are solely responsible for your use of any User Content and use such User Content at your own risk. By posting any User Content, you represent and warrant that you own and control all of the rights to the User Content that you post, or that you otherwise have the lawful right to distribute and reproduce such User Content and to grant Company the license for the User Content described below and that your use and posting of such User Content does not violate these Terms or any Subscription Agreement you have with us, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for us or for any third party.

 

By selecting and/or posting any User Content, you agree not to post, upload to, transmit, distribute, store, create, or otherwise publish through the Site any of the following:

We take no responsibility and assume no liability for any User Content posted, stored, or uploaded by you or any third party, or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter.

 

As a provider of services that may in certain ways be interactive, we are not liable for any statements, representations, User Content, or Advertiser and Corporate Partner Content (as defined below) provided by users in any form whatsoever in connection with the Site. Although we have no obligation to screen, edit, or monitor any of the User Content or Advertiser and Corporate Partner Content posted anywhere in connection with the Site, we reserve the right, and have absolute discretion, to remove, screen, or edit any User Content and Advertiser and Corporate Partner Content connected to the Site at any time and for any reason without notice. You are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.

 

We do not own the User Content you post on or otherwise select or submit to the Site, but in posting and/or otherwise submitting User Content to the Site, you grant us an irrevocable, worldwide, transferable, nonexclusive, royalty-free, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such User Content and any information, data, or other material generated through the use of the Services on or in any and all media (now known or hereafter developed) to perform and provide the Services or for our own business purposes in accordance with our Privacy Policy. You also hereby grant each user of the Site a non- exclusive license to access your User Content and any information, data, or other material generated through the access to or use of the Site, and to access, use, reproduce, distribute, prepare derivative works of, display, and perform such User Content and information, data, or other material generated through the access to or use of the Site and under these Terms.

We may monitor use of the Site by all of our customers or visitors and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any of your personal information and/or identify you.

 

  1. Your Use

Use of the Site is subject to these Terms and is only permitted within normal access or use of the Site and in conformance with any Subscription Agreement (discussed below) you may have with us. Your access to or use of the Site grants you no right or license to reproduce, or otherwise use any Company or third-party trademarks except as expressly set forth herein. All goodwill generated from use of Company’s marks will inure to our exclusive benefit. Other company, product, and service names and logos used and displayed via the Site may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Company.

You may access and use the Site only in compliance with these Terms, your Subscription Agreement, and all applicable local, state, national, and international law, rules, and regulations.

 

Absent breach by you of any of these Terms, and unless otherwise expressly permitted by Company, you are granted a limited, personal, non-transferable, non-sublicensable, revocable license to access our Site and, in connection with your Subscription Agreement, use the Site, and, as permitted, to electronically view, copy (except where prohibited without a license), and print to hard copy portions of the Site Materials.

However, in no case whatsoever shall you:

Further, you agree not to post, upload to, transmit, distribute, store, create, or otherwise publish through our Site any of the following material or information:

Any use of the Site or Site Materials not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. If you wish to make any use of material on the Site other than as set out in this section, please address your request to: [email protected].

 

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any Site Materials, except as follows:

Access to certain areas of our Site may be restricted. Any access to or use of the Site or the Site Materials other than as specifically authorized in these Terms, without our prior written permission, is strictly prohibited and will terminate the license granted in these Terms and any Subscription Agreement you have with us. Such unauthorized use may also violate applicable laws including, but not limited to, copyright and trademark laws and applicable communications regulations and statutes. We reserve the right to restrict access to areas of our Site, or indeed our whole Site, at our discretion. We reserve the right to revoke your authorization to access or use the Site if we believe in good faith that you have violated these Terms or any laws whatsoever. Unless explicitly stated herein, nothing in these Terms or any Subscription Agreement you have with us will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license granted by these Terms is revocable at any time.

You acknowledge and agree Company may conduct an audit of all your records that pertain to the Site within the scope of the license granted herein electronically remotely at any time with respect to information or records available to us based on your interaction with us, or in person, provided that we give you reasonable notice of said audit and conduct said audit during standard business hours between 8:00 a.m. to 5:00 p.m. or as otherwise agreed by you and us.

 

  1. Commenting and Comments

Company may allow posting of comments on its Site, such as in its “Community” section or discussion forums. Any user failing to comply with the Terms may be expelled from and refused continued access to, the ability to post comments or material in the future. Company or its designated agents may remove or alter any user-created material at any time for any reason. Information and material posted within these public forums may be provided by Company, our outside contributors, and/or by users not connected with us, some of whom may employ anonymous user names. Company expressly disclaims all responsibility and endorsement and makes no representation as to the validity of any opinion, advice, information, or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will we, our subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, employees, or representatives be liable for any loss or damage caused by your reliance on information obtained through these posted comments. The opinions expressed by anyone other than Company itself are solely the opinions of those parties, and do not reflect the opinions of Company or any of its subsidiaries or affiliates.

You also acknowledge and agree that any feedback, including but not limited to suggestions, comments, ideas or other information, provided by you in the form of email or other submissions (collectively, “Feedback”) to us is non-confidential and you hereby grant Company, its affiliates, subsidiaries, successors, and assigns an irrevocable, worldwide, transferable, nonexclusive, royalty-free, and fully sublicensable right to use such Feedback for any purpose without any compensation or attribution to you.

 

  1. Children Under 13

The Children’s Online Privacy Protection Act (“COPPA”) (https://www.ftc.gov/tips-advice/business- center/guidance/complying-coppa-frequently-asked-questions) requires that online service providers obtain parental (or legal guardian) consent before they collect personally identifiable information online from children who are under 13. Company’s Site does not target children, and is not intended to be used by children without involvement and approval of a parent or guardian. Therefore, we only knowingly collect personal information through the Services from a child under 13 where that parent or guardian (or a student’s school, district, and/or teacher has agreed to obtain parental/guardian consent for that child) to use the Services and disclose personal information to us, for the use and benefit of the learning environment. If you are a child or student under 13, please do not send any personal information about yourself to us if your parent, guardian, school, district, and/or teacher has not provided this prior consent to us, and please do not send any personal information other than what we request from you in connection with the Site. If we learn we have collected personal information from a child or student under 13 without parental/guardian consent being obtained or if we learn a child under 13 has provided us personal information beyond what we request from them for the Site, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information in violation of this paragraph, please contact us at [email protected].

Parents and legal guardians, if your child is under the age of 13, consent may need to be given in order for such child to use certain features of the Site. You are responsible for understanding how the Site you use, subscribe to, make available, and/or distribute on behalf of yourself or other users may collect and use information of users of Company’s Site. If you are the parent or legal guardian of a child who has created a User Account with us and you did not receive an email seeking your consent, you can email us at [email protected] to have that child’s User Account deleted.

 

If you are a school, district, company, or educator, you represent and warrant that you are solely responsible for complying with COPPA, meaning that you must obtain advance written consent from all parents or legal guardians whose children under 13 will be accessing the Site. You are responsible for understanding how the Services you use, subscribe to, make available, and/or distribute on behalf of yourself or other users may collect and use information of users of Company’s Site. When obtaining consent, you must also appropriately provide parents and legal guardians with our Privacy Policy. You must keep all consents on file and provide them to us if we request them. If you are an educator, you represent and warrant that you have permission and authorization from your school, company, and/or district to use the Site as part of your curriculum, and for purposes of COPPA compliance, you represent and warrant that you are entering into these Terms on behalf of your school, company, and/or district. Upon termination of a teacher or other staff member’s employment with any school, company, and/or district, such individual must return and cease using all login details and student access they have in their possession.

 

  1. Purchases

Company reserves the right not to accept or process orders that do not comply with our business policies and/or vendor agreements. Items ordered via the Site may be subject to shipping or processing limitations, such as shipping only to physical addresses located in Canada or the United States and applicable limitations will be noted in connection with available items or during the purchasing process. All services and products offered by Company are provided subject to applicable Canadian federal, provincial, and municipal laws.

 

All orders are subject to acceptance by Company and availability. By submitting a purchase request to us (directly, or through our Site or our authorized vendors or affiliates) for any item, you represent and warrant that all information submitted to us in connection thereto is complete and accurate. At our discretion, purchase requests will be processed, but we reserve the right not to accept your purchase request at our sole discretion. In such case, we may inform you by email or via your User Account.

Prices (if any) indicated on each item page are exclusive of applicable taxes. Prices are subject to change. However, such changes will not impact the price or the description of the items for which you have already submitted a purchase request.

 

You may pay for your order using the payment methods available on the Site. The price for the purchase of items and the corresponding costs for shipping, delivery, and/or tax, as indicated by Company, may be charged to your chosen available payment method. You agree to pay Company (or our authorized vendors or affiliates) in full as identified in the purchase process via the Sites or the third party method. To ensure that your credit or debit card is not being used without your consent, Company (or our authorized vendors or affiliates) may validate your name, address, and certain other personal information supplied by you in placing the order. Company reserves the right to implement any additional and/or other payment security system from time to time.

The appearance of items displayed on the Site may not exactly correspond to actual items in terms of image, dimensions, and color depending on your Internet browser and/or your monitor quality.

 

  1. Refunds and Returns

Customer satisfaction is our number one priority and if you are unhappy for any reason, we will do our best to make it right. Refunds or returns, will only be offered if we are clearly at fault.

 

For any returns, we do not credit back any shipping charges paid on the original order and do not pay or reimburse for any return shipping back to us.

 

  1. Third Party Stuff

The Site allows (or may in the future allow) you to select, input, upload, and share information and data in connection with and through designated user accounts maintained by you on certain third-party social media platforms or via third parties for services (together, “Third Party Services”). The Site allows (or may in the future allow) you to access Third Party Services using the Site to post, link, message users of Third Party Services, or otherwise act on a wide variety of information accessed by the Site and originating from user accounts on Third Party Services, and to collect data and generate reports based on these activities (collectively, “User Materials”). You are solely responsible for User Materials. By accessing Third Party Services through the Site, you represent and warrant that you have the lawful right to access such Third Party Services, and that the creation, distribution, and reproduction of the User Materials complies with the terms applicable to the Third Party Services. You shall ensure that your use of the Site, including access to or use of User Materials with the Site and Third Party Services, does not contain code, files, content, or programs that may interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, including, without limitation, by introducing viruses or similar code into the Site, hosted systems or servers, or systems or servers maintained by providers of Third Party Services accessed through the Site. Company is not responsible for any loss or damage to User Materials. You assume all risks for the User Materials and are solely responsible for protecting and backing up the same.

The Site may also contain links to sites, third parties, or content not under the control of Company. Company does not assume, and expressly disclaims any and all, responsibility for the sites and/or content of any page or material not of the Site. Links to third-party web sites on the Site are provided solely as a convenience to you. Company has not reviewed these third-party web sites, and does not control and is not responsible for any such sites or content displayed thereon. If you decide to access any of the third-party sites linked to the Site, you do so entirely at your own risk, and the inclusion of any third-party link on the Site does not imply any endorsement or guarantee whatsoever by Company of such third-party site. If you have questions or concerns about any Third Party Services or material available through such, you may contact us at [email protected]. Once you link to a third- party site, you are subject to the terms of use and privacy policy of such site.

 

  1. Ads and Promotions

We may now or in the future allow advertisers and corporate partners to post content on the Site and provide links to sites and content of third parties (collectively the “Advertiser and Corporate Partner Content”) as a service to those interested in this information. These advertisements may be targeted to users based on information provided while registering for a User Account, through use of the Site, through queries made through the Site, or based other information. We do not control, endorse, or adopt any Advertiser and Corporate Partner Content and we make no representation or warranties of any kind regarding the Advertiser and Corporate Partner Content. The types and extent of advertising by Company on the Site are subject to change. You acknowledge and agree Company may access and use data and information received or generated through your access to or use of the Site to identify other potential users of the Site, demonstrate the capabilities of the Site, and/or pursue additional marketing and promotional activities using such. You further agree that we may send you messages, alerts, and other communications through the Site, including via email, web alert, text messages, push notifications and other similar means, in accordance with the preferences you may set through the Site, and you agree to accept such messages, and pay any applicable network access, data usage, or similar fees.

If we offer promotions, they will be subject to additional terms and conditions to which you must agree before entering (“Promotions Rules”). The Promotions Rules are considered part of these Terms and therefore part of the binding legal agreement between you and us. Please read any Promotions Rules carefully before entering.

 

 

  1. Equitable Relief

You agree that Company has expended significant monetary resources to develop, maintain, and host the Site, and that monetary damages would be inadequate to compensate Company for any violation of these Terms. Accordingly, you agree and acknowledge that any such violation or threatened violation will cause irreparable injury to Company and that, in addition to any other remedies that may be available, at law, in equity, or otherwise, Company will be entitled to obtain injunctive relief against the actual or threatened violation of these Terms without the necessity of posting a bond or proving actual damages to Company.

 

  1. Electronic Communications

By accessing the Site and submitting to us your contact information, you consent to receiving electronic communications from us. Such communications may include notices about your User Account and information concerning or relating to the Site. You agree that any electronic notices, signatures, acknowledgements, transfers, agreements, disclosures, or other communications will satisfy any legal communication requirements, including any requirements that such communications be in writing.

 

  1. Confidential Information and Privacy Policy

 

“Confidential Information” means any information disclosed to you by us, directly or indirectly, in writing, orally, or by inspection of tangible objects. Confidential Information does not include any information that you can demonstrate (a) was publicly known and made generally available in the public domain prior to the time of disclosure to you by us; (b) became publicly known and made generally available after disclosure to you by us through no action or inaction of you; or (c) was in the possession of you, without confidentiality restrictions, at the time of disclosure by us, as shown by your files and records. You agree to not use any Confidential Information for any purpose except as permitted by these Terms.

 

You will not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody our Confidential Information and that are provided to you in accordance with these Terms and any applicable Subscription Agreement you have with us. You will use your best efforts to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, you will take at least those measures that you take to protect your own most highly confidential information. You will reproduce our proprietary rights notices on all copies made containing any Confidential Information or as directed by Company. You will immediately notify us in the event of any unauthorized use or disclosure of the Confidential Information.

 

ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” WE MAKE NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF THE CONFIDENTIAL INFORMATION.

 

All documents and other tangible objects containing or representing Confidential Information and all copies of them will be and remain the property of Company. Upon our request, you will (a) promptly deliver to us all Confidential Information, without retaining any copies, and (b) promptly destroy analyses, studies, and other documents prepared based on the Confidential Information, without retaining copies. Nothing in this Agreement is intended to grant any rights to you under any patent, copyright, or other intellectual property right of Company, nor will this Agreement grant you any rights in or to the Confidential Information, except as expressly set forth in this Agreement.

Your obligations regarding Confidential Information will survive until all Confidential Information becomes publicly known and made generally available through no action or inaction of you. You acknowledge that any breach or threatened breach of these Terms regarding Confidential Information would cause irreparable harm to us, and in addition to any other remedies at law or in equity that we may have, we are entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. You agree to indemnify and hold us harmless from any damage, loss, cost, or liability (including reasonable attorney fees) arising or resulting from any unauthorized use or disclosure of the Confidential Information by you or any of your employees.

 

You may disclose Confidential Information to the extent compelled by law to do so, provided you give us prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the our cost, if we wish to contest the disclosure.

 

Please refer to our Privacy Policy, which also applies to your access to and use of the Site, and describes our practices and policies related to the collection, use, and storage of information about users of the Site. You acknowledge and agree that you are solely responsible for the accuracy and content of your personal information. You expressly consent to the use and disclosure of your personal information and other data and information as may be defined and described in the Kickass Transformations Privacy Policy.

 

Company may collect, extract, compile, synthesize, and analyze non-personal and/or aggregate information (information that does not identify a natural person) resulting from your access to and use of the Site in connection with our Privacy Policy. To the extent any such non-personal and/or aggregate information is collected or generated by Company it will be solely owned by Company and may be used by Company for any lawful business purpose without a duty of accounting.

 

  1. Legal Indemnification

You agree, at your sole expense, to defend, indemnify, and hold us, our independent contractors, service providers, and consultants, and their respective directors, employees, and agents, harmless from and against any and all actual or threatened suits, actions, legal proceedings, judgments, and any other legal claims, damage awards, or other compulsory payment or performance of any kind arising out of, resulting from, attributable to or in any way incidental to: (a) your access to or use of the Site and/or the Site Materials; (b) your conduct; (c) your violation of these Terms; (d) your violation of the rights of any third party; and (e) any User Content posted by you. Company is not liable for any loss or damage that results from your failure to comply with your obligations in these Terms or from unauthorized access to or use of your User Account or subscription.

 

We will, at our election and expense, either defend you from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against you alleging that your use of the portion of the Site provided by us infringe or misappropriate any patent, copyright, trade secret, or trademark, right of any third party, and indemnify you from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim, subject to the following limitations: Our obligation under this section is contingent on your giving us prompt written notice of the Claim; your granting us full and complete control over the defense and settlement of the Claim; and your providing assistance in connection with the defense and settlement of the Claim as we may reasonably request, at our cost. You will not defend or settle any Claim eligible for indemnification under this section without our prior written consent. Our obligation to indemnify, defend, or settle under this section is obviated should you alter the Site or any Site Materials, or use such contrary to these Terms or the terms of your Subscription Agreement, if you use a version of such that has been superseded, if the Claim could have been avoided by using an unaltered current version of the Site or Site Materials provided to you, or if you continue to use relevant portions of the Site or Site Materials after the end of your license. Further, Company shall not indemnify you to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by us, for any portion of a Claim that is based upon the combination of the Site or Site Materials with any products or services not provided by Company, for infringement or a Claim caused by your actions against any third party if the Site or Site Materials as delivered to you and used in accordance with the Terms or your Program Agreement would not otherwise infringe or violate any third party rights, or for any Claims known to you at the time licensed rights are obtained.

 

If you are enjoined or otherwise prohibited from using the Site or a portion thereof based on an allegation that the Site violate any third party intellectual property right (including a Claim), or if we reasonably determine that such prohibition is likely, then we will, at our sole expense and option: (a) obtain for you the right to use the allegedly infringing portions of the Site; (b) modify the allegedly infringing portions of the Site so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Site with non- infringing items of substantially similar functionality. If we determine that the foregoing remedies are not commercially reasonable, then we may terminate the impacted Subscription Agreement, or portion thereof, and will promptly provide a prorated refund to you for any prepaid fees received by us for any services properly engaged that have not yet been performed at the time of termination. However, we will have no obligation for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; any aspects of the Site that are provided to comply with designs, requirements, or specifications required by or provided by you, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Site by you for purposes not intended or outside the scope of the license granted to you; your failure to use the Site in accordance with written instructions provided by us, if the infringement or misappropriation would not have occurred but for such failure; or any modification of the Site not made or authorized in writing by us where such infringement or misappropriation would not have occurred absent such modification.

This section states Company’s sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Site.

 

 

  1. Warranties Disclaimed

THE SITE, THE SITE MATERIALS, AND ALL USER CONTENT, OTHER SUBMISSIONS, AND OTHER MATERIALS, INFORMATION, PRODUCTS, AND SERVICES INCLUDED IN OR MADE AVAILABLE IN CONNECTION WITH THE SITE AND THE SITE MATERIALS ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. COMPANY AND OUR LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. COMPANY AND OUR LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE ACCURACY, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY, COMPATIBILITY, AND PERFORMANCE OF THE SITE, THE SITE MATERIALS, AND THE USER CONTENT. COMPANY AND OUR LICENSORS DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR IN CONNECTION WITH THE SITE OR RECEIVED THROUGH ANY LINKS DISPLAYED ON THE SITE OR ANY USER CONTENT, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS DISPLAYED ON THE SITE OR ANY USER CONTENT.

 

YOU AGREE THAT YOUR ACCESS TO OR USE OF THE SITE, THE SITE MATERIALS, AND ALL USER CONTENT SHALL BE AT YOUR SOLE RISK.

YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE ACCESS TO OR USE OF THE SITE, INCLUDING BUT NOT LIMITED TO ANY USER CONTENT, AT YOUR OWN DISCRETION AND RISK. COMPANY DOES NOT WARRANT THAT THE SITE, THE SITE MATERIALS, OR ANY USER CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT DATA WILL NOT BE LOST OR THAT THE SITE OR THE SERVER THAT MAKES SUCH CONTENT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN SUCH EVENT, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE ACCESS TO OR USE OR THE RESULTS OF THE ACCESS TO OR USE OF THE SITE, THE SITE MATERIALS, OR ANY USER CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST COMPANY, ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WITH RESPECT TO THE SITE, GOODS OR SERVICES PROVDED BY US, THE SITE MATERIALS, AND THE USER CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTIES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).

 

  1. Limitation of Liability

COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS ASSUME NO LIABILITY OR RESPONSIBILITY FOR, AND IN NO EVENT, INCLUDING NEGLIGENCE, SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM, ANY:

Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.

 

EXCEPT FOR LIABILITY ARISING OUT OF COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR ANY APPLICABLE SUBSCRIPTION AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO COMPANY UNDER THE APPLICABLE SUBSCRIPTION AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

 

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN YOU AND COMPANY. THIS ALLOCATION IS REFLECTED IN PRICING OFFERED BY COMPANY TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

Except for actions for nonpayment or breach of proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either you or Company more than one (1) year after the cause of action has accrued.

 

  1. Enforcement

You agree that we may, without any limitation whatsoever: (a) investigate any suspected breaches of the security of the Site or our information technology or other systems or networks; (b) investigate any suspected breaches of the Terms; (c) involve and cooperate with law enforcement authorities in investigating any such matters; (d) prosecute violators of the Terms to the full extent of the law; (e) delete or modify any materials on or available via the Site, including any materials you may submit; and (f) discontinue the Site or terminate your access to it at any time, without notice, for any reason and without any obligation to you whatsoever.

 

  1. Governing Law and Applicable Venue

These Terms and your use of the Site will be governed by and construed in accordance with the laws of the Province of Ontario, Canada, applicable to agreements made and to be entirely performed within the Province of Ontario, Canada, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms or your access to or use of the Site will be filed only in the provincial or federal courts located in Ontario, Canada and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms and/or your access to or use of the Site.

 

The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.

 

Recognizing the global nature of the internet and the rapid changes around online privacy, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from Canada or in the country in which you operate or reside and to comply with any other local laws affecting the Site.

 

  1. Copyright Issues

In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, access to the Site for users who we have deemed, in our sole discretion, to be repeat infringers. We may also, at our sole discretion, limit and/or terminate access to the Site for any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. Additionally, we reserve the right to limit access to the Site for any users for reasons of our own discretion, that we are not obligated to reveal, at any time.

 

If you believe that anything on our Site infringes upon any copyright you own or control you may file a notification of such infringement with our Designated Agent as set forth below.

You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages including but not limited to costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

 

  1. Additional Terms and Provisions

Relationship of the Parties. The relationship between Company and you is not one of a legal partnership relationship, but is one of independent contractors. No agency, partnership, joint venture, employment, or franchise relationship is intended or created by this Agreement. Nothing in these Terms, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

 

Arrangements necessary for you to have access to the Site (e.g., providing your own equipment and Internet connection and paying any Internet access fees) and (b) ensuring that all persons who access the Site through your Internet connection are aware of the provisions of these Terms and comply with them.

 

Local Laws. Company makes no representation that content or materials in the Site are appropriate or available for use in jurisdictions outside Canada. Access to the Site from jurisdictions where such access is illegal is prohibited. If you choose to access the Site from other jurisdictions, you do so on your own initiative and are responsible for compliance with applicable local laws. Company is not responsible for any violation of law. You agree that the Site, any Subscription Agreement, and these Terms shall be interpreted and governed in accordance with federal law and, to the extent not preempted by federal law, with the laws of the state where Company maintains your User Account, or, if Company transfers your User Account to another location, where Company currently maintains your User Account. The Site shall be deemed a passive website and service that does not give rise to personal jurisdiction over Company, either specific or general, in jurisdictions other than the states covered by the preceding sentence. You agree and hereby submit to the exclusive personal jurisdiction of the state and federal courts located where Company maintains your User Account, or, if Company transfers your User Account to another location, where Company currently maintains your User Account. You further agree to comply with all applicable laws regarding the transmission of technical data exported from Canada and the country in which you reside (if different from Canada).

 

Cross Border Data Transmission. Company is headquartered in Canada and all of its primary data storage and processing facilities are in Canada. If you are accessing the Site from another country, please note that all data collected will be transmitted outside of your country and into Canada, where it will reside and be processed. In addition, your data may pass through or be temporarily stored or processed in countries beyond your country and Canada. By continuing to access the Site, you explicitly consent to have your data so transmitted and stored. Please review our Privacy Policy to see what types of data we collect, transmit, process, and store.

 

Compliance with Laws. We will strive to comply with all Canadian provincial and federal laws in our provision of the Services. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request. You will comply with all laws in your use of the Site, including any applicable export laws.

 

Headings. The headings of the sections contained in these Terms are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of these Terms. Survival. In addition to those provisions identified in the Terms to survive termination, all provisions of the Agreement which, by their nature, are intended to survive its termination or expiration, shall survive its termination or expiration.

 

Waiver. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

 

Notice. Any notice required or permitted to be given in accordance with these Terms will be effective if it is in writing and sent by fax, e-mail, mail, or insured courier, return receipt requested, to the appropriate party using the contact information noted in these Terms or in the Subscription Agreement between the parties. Either you or we may change its address for receipt of notice by notice to the other in accordance with these Terms. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier or sending an email or fax.

 

Force Majeure. A party will not be liable to the other should its performance under these Terms or any Subscription Agreement be prevented, restricted, or interfered with by circumstances or events beyond its reasonable control (“Force Majeure Event”), provided that the affected party uses its best efforts to resume performance promptly at the end of the Force Majeure Event.

 

Assignment. You will not assign or transfer any of your rights hereto or your Subscription Agreement without our prior written consent. We may assign our rights or obligations to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control, or operation of law, or to any third party we choose without your consent.

 

Entire Agreement. These Terms, including all Policies, constitute the entire agreement between Company and you concerning the Site. These Terms supersede any and all prior agreements or communications between Company and you concerning the subject matter of these Terms.

 

Authority. Each party represents and warrants to the other that it has full power and authority to enter into these Terms and any applicable Subscription Agreement and that such are binding upon such party and enforceable in accordance with its terms.

 

  1. Questions and Contact Information

Questions, comments, and any other correspondence regarding our site may be directed to us at the email address [email protected].

Name: Compliance Officer