PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING THE CMSI-TYMBREL WEBSITE MANAGEMENT SYSTEM SOFTWARE.
This Delta4 Digital Inc. (also Operating as Tymbrel) (“CMSI-TYMBREL”) License Agreement (the "Agreement) is a legal agreement between you, individually if you are agreeing to it in Your own capacity, or if you are authorized to use the CMSI-TYMBREL Website Management System Software (the “Software”) on behalf of Your company or another entity, between the entity for whose benefit you act (in either case, "You"), and CMSI-TYMBREL whose registered office is at 243 Church Street, St. Catharines, ON L2R 3E8 (together the "Parties" and individually a "Party"). With respect to the license of the Software (as defined below) CMSI-TYMBREL is a direct licensor.
BY INDICATING ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY ACTIVATING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CMSI-TYMBREL reserves the right to change or modify any of the terms and conditions contained in this Agreement, or any policy or guideline applicable to the Software, at any time and in its sole discretion, and in such case, we will notify You via an announcement viewable at the time of login when You login in to Your CMSI-TYMBREL account the next time after the change has been posted. You may also view the current Agreement on the CMSI-TYMBREL website and You should from time to time review the Agreement and any policies and documents contained on the CMSI-TYMBREL website to understand the terms and conditions that apply to Your use of the Software, where the Agreement will always show the ‘last updated’ date at the top. If you do not agree to any amended Terms, you must stop using the Services. If you have any questions about the Terms, please email us at support@Delta4 Digital.com. If You do not agree with the changes, You can cancel Your account with CMSI-TYMBREL without further obligation, except for the amount due for the balance of the billing period in which You cancel Your account. Unless otherwise specified, any changes or modifications will be effective immediately upon posting of the revisions on Company’s Websites, and Your continued use of the Software after such time will constitute acceptance of such changes or modifications.
BY INDICATING YOUR ACCEPTANCE TO THE TERMS OF THIS AGREEMENT IN THE MANNER SET OUT ABOVE, YOU ARE ALSO AGREEING THAT THIS AGREEMENT REPLACES AND SUPERSEDES ANY PREVIOUSLY EXISTING CMSI-TYMBREL SOFTWARE LICENSE AGREEMENT, TO THE EXTENT SUCH AGREEMENTS ARE OTHERWISE APPLICABLE, AS OF THE DATE OF ACCEPTANCE OF THIS AGREEMENT.
IF, PRIOR TO ACTIVATING OR USING THE SOFTWARE, YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THIS SOFTWARE.
If, in the circumstances set out above, You have pre-paid for the monthly Software licensing fee and are unable to usefully use the Software as a result of this Agreement, You may provide CMSI-TYMBREL with proof of purchase within ninety (90) days from the date or pre-payment and CMSI-TYMBREL will refund the fees (if any) and turn off Your website on the CMSI-TYMBREL server.
THIS AGREEMENT DOES NOT AFFECT YOUR MANDATORY STATUTORY RIGHTS APPLICABLE IN YOUR JURISDICTION, TO THE EXTENT THAT YOU MAY BE ENTITLED TO SUCH MANDATORY STATUTORY RIGHTS.
1. Definitions. Unless the context requires otherwise, the defined terms in this Agreement shall have the meanings set out below (and where the context so admits the singular shall include the plural and vice versa).
"Website" means a set of related web pages containing content such as text, images, video, audio, etc., hosted on a server and available via a network such as the internet or a private local network through an internet address known as a Uniform Resource Locator (URL).
“Company’s Websites” means any of the websites used to represent the CMSI-TYMBREL business. For example: www.delta4digital.com or www.tymbrel.com
"CMSI-TYMBREL Website Management Solution" means a combined hosting and content management software product/service offering that delivers website content management benefits as described by on any of the Company’s Websites. An example of a CMSI-TYMBREL Website Management Solution is the “Monthly SaaS & Hosting Package”.
"CMSI-TYMBREL Server" means the hardware infrastructure that helps to deliver the content of Your website via the internet. The primary function of the CMSI-TYMBREL server is to deliver the web pages from Your website on the request of readers/clients using the Hypertext Transfer Protocol (HTTP).
"Documentation" means the applicable standard end-user documentation prepared and supplied by CMSI-TYMBREL for the use of the Software. Documentation is also available on the Company’s Websites or by contacting CMSI-TYMBREL at legal@Delta4 Digital.com. For certainty, Documentation does not include any end-user documentation that is prepared by any person other than by CMSI-TYMBREL or any modifications made to documentation made by any person other than CMSI-TYMBREL.
"Authorized Users" means any of the following to whom You give permission to use the Software as part of Your CMSI-TYMBREL Website Management Solution: (a) any of Your or your company’s employees, consultants or independent contractors; (b) any friend or family member, or any person that resides in Your premises; and (c) any other person who You authorize in writing.
"CMSI-TYMBREL Website Management Software" means CMSI-TYMBREL proprietary software (comprised of CMSI-TYMBREL proprietary software, interfaces, content and other data, whether or not technically considered software code), or any portion thereof, designed for use as part of a CMSI-TYMBREL Website Management Solution. CMSI-TYMBREL Website Management software is designed and offered by CMSI-TYMBREL to be used by You to manage the content of a website hosted on the CMSI-TYMBREL Server without having to acquire or download such software to any computer or device.
"Computer or Device" means: (a) any Computer; or (b) a Third Party Handheld Device.
"Software" means any of the CMSI-TYMBREL Website Management System Software provided to You under this Agreement, in whatever form, medium or manner provided or subsequently used. If the CMSI-TYMBREL Website Management System Software has the capability to provision (i.e. activate) other CMSI-TYMBREL Software, then, the term "Software" includes any and all CMSI-TYMBREL Software (including any and all updates or upgrades thereto for which other terms and conditions are not provided) that is provisioned using the Software. The term "Software" shall not include any Third Party Software or Third Party Content, whether or not the Third Party Software or Third Party Content operates in conjunction with, the Software and/or any other portion of CMSI-TYMBREL Website Management Solution.
"Service(s)" means any CMSI-TYMBREL service provided to You by CMSI-TYMBREL as part of Your CMSI-TYMBREL Website Management Solution (including, without limitation, any CMSI-TYMBREL service for which You are licensed, and any new CMSI-TYMBREL service or modification to an existing CMSI-TYMBREL service that CMSI-TYMBREL provides, or otherwise makes available to You from time-to-time).
"Third Party Software" means software and interfaces incorporated by You into Your CMSI-TYMBREL Website Management Solution.
"Third Party Content" means content proprietary to a third party, including, without limitation, third party files, databases and websites.
"Third Party Items" means Third Party Hardware, Third Party Software, and Third Party Content.
"Third Party Software" means standalone software applications proprietary to a third party that are provided or otherwise made available by a third party.
2. Software and Documentation License. The Software is licensed and not sold under this Agreement. License to use the Software is conditional upon payment of the license fees, if any. Subject to the terms and conditions herein, this Agreement grants You a personal, revocable, non-exclusive, non-transferable license that permits You and Your Authorized Users, collectively to use the Software corresponding to the fees for the Software paid to CMSI-TYMBREL (and if no fees for the Software are payable to CMSI-TYMBREL, then to use the software as authorized in writing by CMSI-TYMBREL).
If You are acquiring the Software on a subscription basis or as part of a free trial, then the license rights set out above apply only for the time period for which you have paid the requisite subscription fees or for the time period authorized by CMSI-TYMBREL.
In all cases, the license(s) granted under this Agreement permit You and Your Authorized Users to use or allow the use of the Software or to access the Services only as part of Your CMSI-TYMBREL Website Management Solution. If an Authorized User also wishes to use the Software as part of another website management solution (i.e. an additional, new, or other website) then that use is not covered by this license agreement and You must require the Authorized User to enter into a separate license agreement with CMSI-TYMBREL entitling him or her to use the Software as part of the additional, new, or other website management solution.
This Agreement and the licenses granted herein, do not imply any rights or entitlement to: (a) future upgrades or updates of the Software; (b) the ability to access applications, other than those included in the Software; or (c) acquire any new or modified Services.
You may not print, distribute or modify the Software, in whole or in part. Except to the extent that CMSI-TYMBREL is expressly precluded by law from prohibiting these activities, You may not copy, reproduce or in any other manner duplicate the Software, in whole or in part, except as authorized in this Agreement or in a separate written agreement between You and CMSI-TYMBREL. For the purposes of this provision "copy" or "reproduce" shall not include copying of statements and instructions of the Software that naturally occurs during normal program execution when used in accordance with and for the purposes described in the Documentation, in accordance with industry standard business practices. You may not copy any Documentation or portion thereof unless specifically authorized in writing to do so by CMSI-TYMBREL. You may download a copy of the Documentation from the Company’s Websites solely for Your use under these terms and conditions and in conjunction with the use of the Software.
3. Registration Information. If You or Your Authorized Users register for a CMSI-TYMBREL Website Management Solution, You agree to (a) provide accurate, current and complete information as may be prompted by any registration forms on the Software “Registration Form(s)”); (b) maintain the security of your password; (c) maintain and promptly update the Registration Form(s), and any other information You provide to CMSI-TYMBREL, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Form and any other information you provide to CMSI-TYMBREL. You are responsible for all activity with your CMSI-TYMBREL Website Management Solution account, and for all charges incurred by your CMSI-TYMBREL account.
4. Fees and Taxes. Fees and any other charges for the use of the Software are described on Company’s Websites and/or outlined in the website design and services agreement you signed with CMSI-TYMBREL. These fees may change from time to time, and when this occurs, CMSI-TYMBREL will provide You a minimum of 30 days notice. Your continued use of the Software after any changes to fees indicates your agreement with the new fees and charges after the effective date of the change. Any change to fees and other charges will not be applicable to the billing period in which the change occurs. You are responsible for all taxes applicable to the fees and charges in any applicable jurisdiction.
5. Use of Your CMSI-TYMBREL Website Management Solution. You are responsible for all activities with respect to Your CMSI-TYMBREL Website Management Solution undertaken by You and Your Authorized Users and You will ensure that:
a. You and Your Authorized Users use CMSI-TYMBREL Website Management Solution, and any portion thereof, in accordance with this Agreement, all applicable laws and regulations, and the appropriate Documentation for Your CMSI-TYMBREL Website Management Solution or portion thereof;
b. You have the right and authority to enter into this Agreement, either on own behalf or on behalf of a company or other entity, or minor, and You are over the age of majority;
c. Any information that is provided to CMSI-TYMBREL pursuant to this Agreement is true, accurate, current and complete;
d. You and Your Authorized Users will not knowingly, after making such inquiries as a reasonable person in You or Your Authorized User's position would undertake, use or permit others to use Your CMSI-TYMBREL Website Management Solution or portion thereof in isolation or with any other software or data in a manner that in CMSI-TYMBREL’s judgment, has a detrimental effect upon CMSI-TYMBREL or any of their respective customers or products or services, and You will immediately cease any such activity upon CMSI-TYMBREL delivering notice of same to You. Failure to cease such activity will result in CMSI-TYMBREL turning off Your website hosting and terminating this Agreement;
e. You and Your Authorized Users will not transmit harassing, abusive, libellous, illegal or deceptive messages, content or information using Your CMSI-TYMBREL Website Management Solution or any portion thereof;
f. You and Your Authorized Users will not use Your CMSI-TYMBREL Website Management Solution, or any part thereof, to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any breach of privacy or infringement, violation or misappropriation of any intellectual property rights and/or other proprietary rights of any third party (including, without limitation, copying and sharing Third Party Content for which You and Your Authorized Users do not have the rights to copy and share, or unlawfully circumventing any digital rights management protections);
g. You and Your Authorized Users will not sell, rent, lease, sub-license, or transfer, or attempt to sell, rent, lease, sub-license, or transfer, the Software or any part thereof, or Your entitlement to use the Services or any part thereof, (including operating a service bureau or equivalent service using the Software) to any other person, without the prior express written permission of CMSI-TYMBREL;
h. You and Your Authorized Users will cooperate with CMSI-TYMBREL and provide information requested by CMSI-TYMBREL to assist CMSI-TYMBREL in investigating or determining whether there has been a breach of this Agreement and provide CMSI-TYMBREL or a CMSI-TYMBREL appointed independent auditor with access to the premises and computers where the CMSI-TYMBREL Services or Software are or have been used and any associated records. You hereby authorize CMSI-TYMBREL to cooperate with: (i) law enforcement authorities in the investigation of suspected criminal violations; (ii) third parties in investigating acts in violation of this Agreement; and (iii) system administrators at Internet service providers, networks or computing facilities in order to enforce this Agreement. Such cooperation may include CMSI-TYMBREL disclosing Your or Your Authorized Users' username, IP address, or other personal information.
6. Use of Interactive Areas and the Services. The Company’s Websites or Software may include discussion boards or public forums in which You or Your Authorized Users may post reviews or other content, messages, materials or other items on the Services (“Interactive Areas”). If CMSI-TYMBREL provides such Interactive Areas, You are solely responsible for Your use of such Interactive Areas and use them at Your own risk. User Content submitted to any public area of the Company’s Websites or Software will be considered non-confidential. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the CMSI-TYMBREL website or Software any of the following:
a. Any message, data, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
b. Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
c. Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
d. Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
e. Private information of any third party, including, without limitation, addresses, phone numbers, email addresses and credit card numbers, unless that third party has expressly consented to such use;
f. Viruses, corrupted data or other harmful, disruptive or destructive files;
g. SPAM – You may not use the Interactive Areas or the Software generally to send commercial or other messages to any third-party if those messages are not solicited, authorized or welcomed by the third-party, and in Your use of the Software You must comply with all applicable laws.
Any use of the Interactive Areas or other portions of the Software in violation of the foregoing violates this agreement and may result in, among other things, termination or suspension of your rights to use the Interactive Areas and/or the Software and Your CMSI-TYMBREL Website Management Solution.
7. Third Party Items and Third Party Services. Third party items consist of all other services that Your website may make use of that are not delivered via the CMSI-TYMBREL server infrastucture. Examples of third party services are: Facebook (Facebook likes), Google+, website tracking software (Google aAnalytics, etc), YouTube (embedded videos), etc.; anything that you are attaching to Your website but that is delivered by a third party provider.
8. Intellectual Property. Neither You nor Your Authorized Users acquire hereby any ownership right, title or interest in or to any intellectual property or other proprietary rights, including patents, designs, trademarks, copyright, database rights or rights in any confidential information or trade-secrets, in or relating to Your CMSI-TYMBREL Website Management Solution or any part thereof. You also do not acquire any license rights in or related to Your CMSI-TYMBREL Website Management Solution or any portion thereof, other than the rights expressly licensed to You under this Agreement or in another mutually agreed upon written agreement that You may have with CMSI-TYMBREL. No title and/or any right of possession to the CMSI-TYMBREL Service(s) or Software (if any) is granted by virtue of this Agreement. Any rights not expressly granted herein are expressly reserved. For clarity, notwithstanding anything else in this Agreement, in no event shall the licenses granted in the Software herein extend, or be construed to extend, to the use of any Third Party Services or Third Party Items either on a standalone basis or in conjunction with Your CMSI-TYMBREL Website Management Solution, and, without limiting the foregoing, in no event shall the licenses granted hereunder be construed such that any supplier of such Third Party Services or Third Party Items be able to successfully assert that use of such Third Party Services or Third Party Items either in conjunction with all or a part of the CMSI-TYMBREL Website Management Solution or on a standalone basis are licensed under CMSI-TYMBREL 's patents by virtue of the fact that the Software is licensed hereunder. The Software, including any copies You make of the Software, is only licensed, and not sold, to You, and the Software, all Documentation and any site(s) which allow You to access any Services are protected by Canadian, U.S. and international copyright and patent laws and international treaty provisions. There are severe penalties, both civil and criminal, for intellectual property infringement. You agree that nothing in this Agreement shall adversely affect any rights and recourse to any remedies, including, without limitation, to injunctive relief, that CMSI-TYMBREL may have under any applicable laws relating to the protection of CMSI-TYMBREL 's intellectual property or other proprietary rights.
9. Security. CMSI-TYMBREL puts a great deal of effort into ensuring that our services are running 24/7 and that Your data is safe. CMSI-TYMBREL uses best of class hosting services and security techniques to create the safest possible environment. CMSI-TYMBREL does not store any payment related billing data in our databases. This data is encrypted and passed over to the third party payment providers (ie. WePay, PayPal, etc.) that your website uses, which also stores this data encrypted for Your protection. However, no system is perfect, and the Internet is not always a safe place. When you use CMSI-TYMBREL Website Management Solution you accept these risks knowing that we do our best to protect you.
10. Confidentiality and No Reverse Engineering. You acknowledge and agree that the Software was: (a) developed at considerable time and expense by CMSI-TYMBREL; and (b) that the Software contains confidential information including the trade secrets of CMSI-TYMBREL. This Agreement gives You no right to obtain from CMSI-TYMBREL or its distributors any source code for the Software, and, except to the extent that CMSI-TYMBREL is expressly precluded by law from prohibiting these activities, You agree that neither You nor Your Authorized Users will alter, modify, adapt, create derivative works, translate, deface, or Reverse Engineer the Software, or attempt to do so, or permit, acquiesce, authorize or encourage any other party to do the same. For the purpose of this Agreement, "Reverse Engineer" includes any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.
11. Term. This Agreement shall be effective upon You agreeing to be bound by the terms of this Agreement (as described in the preamble above) and shall continue in effect unless terminated in accordance with the provisions set out herein.
12. Remedies and Termination for Default.
a. If You or Your Authorized Users breach this Agreement, CMSI-TYMBREL may, in addition to all other rights and remedies provided by this Agreement or by law, immediately terminate this Agreement and any other license agreement between You and CMSI-TYMBREL for any other portion of Your CMSI-TYMBREL Website Management Solution used by You or Your Authorized Users with the Software; and/or cease to provide any Service(s) to You or Your Authorized Users in relation to Your CMSI-TYMBREL Website Management Solution. Where You have provided CMSI-TYMBREL with accurate contact information, CMSI-TYMBREL shall provide You with notice of termination.
b. Without limiting the generality of the foregoing sentence, You will be deemed to be in breach of this Agreement and CMSI-TYMBREL will have the right to terminate this Agreement upon providing notice if:
(i) You or Your Authorized Users fail to comply with or perform a term or condition herein;
(ii) You materially contravene any other license agreement or terms of service that You may have with CMSI-TYMBREL for any portion of Your CMSI-TYMBREL Website Management Solution used by You or Your Authorized Users with the Software;
(iii) You or any of Your Authorized Users interfere with CMSI-TYMBREL’s customer service or business operations; or
(iv) Any monthly or other periodic fees or costs associated with Your use of Your CMSI-TYMBREL Website Management Solution are not paid within thirty (30) days of their becoming due.
c. Nothing herein shall be construed to require CMSI-TYMBREL to seek a waiver of any such law, rule, regulation, or restriction, or seek judicial review or appeal of any court order. CMSI-TYMBREL shall not have any liability to You or Your Authorized Users arising from or related to the termination of this Agreement in accordance with this Section.
13. Effect of Termination. Upon termination of this Agreement, however caused, or if Your subscription or a free trial for the Software expires: (a) You will immediately discontinue all use of the Software (or item of Software for which the license has expired); and (b) CMSI-TYMBREL shall have the right to block any use of such Software, without notice to You. Upon termination of any account You may have with CMSI-TYMBREL, You authorize CMSI-TYMBREL to delete any files associated with such account, without notice to You. In the event of the termination of this Agreement by CMSI-TYMBREL pursuant to provisions of this Agreement, You shall pay to CMSI-TYMBREL all fees (including reasonable lawyers' fees and costs) and related expenses expended or incurred by CMSI-TYMBREL in the enforcement of its rights hereunder.
14. Indemnity/Liability. You shall defend, indemnify, and hold harmless CMSI-TYMBREL, CMSI-TYMBREL 's affiliates, suppliers, successors, agents, authorized distributors and assigns and each of their directors, officers, employees and independent contractors (each a " CMSI-TYMBREL Indemnified Party") from any claims, damages, losses, costs or expenses (including, without limitation, reasonable lawyers' fees and costs) incurred by a CMSI-TYMBREL Indemnified Party arising from: (a) infringement of patents or other intellectual property or proprietary rights arising from use of a system or service in connection with CMSI-TYMBREL Website Management Solution or any portion thereof; (b) damages arising from breach of any of Sections of Agreement; (c) any injury, death or property damage arising from or Authorized Users' negligence or misconduct in connection with or Authorized Users' use of CMSI-TYMBREL Website Management Solution or any portion thereof; or (d) claims made by third parties against CMSI-TYMBREL arising from or related to or Authorized Users' use of the Software or CMSI-TYMBREL Website Management Solution or any portion thereof (other than such claims that arise solely from the use of the CMSI-TYMBREL Software and/or the Service contemplated by and strictly in accordance with the terms of this Agreement and the Documentation which specifically pertains to such version of the Software). No remedy herein conferred CMSI-TYMBREL is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative.
15. Limited Warranties. The Software, Your CMSI-TYMBREL Website Management Solution and Services are provided to You on an “as is” basis without warranties from CMSI-TYMBREL of any kind, either express or implied. CMSI-TYMBREL expressly disclaims all other warranties, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. CMSI-TYMBREL does not represent or warrant that Software, Your CMSI-TYMBREL Website Management Solution or Services are accurate, complete, reliable, current or error-free. While CMSI-TYMBREL attempts to make Your access to and use of the the Software, Your CMSI-TYMBREL Website Management Solution and Services safe, CMSI-TYMBREL does not represent or warrant that the Software, Your CMSI-TYMBREL Website Management Solution or Services are free of viruses or other harmful components.
16. Back-up of Data. CMSI-TYMBREL recommends that You make regular back-ups of all content on Your website, as CMSI-TYMBREL will not be liable for loss of content. Although CMSI-TYMBREL does it’s due diligence by backing up Your data on a daily basis, You are responsible for all of Your data in the case of catastrophic data loss.
17. Disclaimer. THE LAW OF SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OF LIABILITY OR THE EXCLUSION OF WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THESE EXCLUSIONS MAY NOT APPLY TO YOU.
a. General Warranties.
(i) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, ENDORSEMENTS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
(ii) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ANY IMPLIED WARRANTIES OR CONDITIONS RELATING TO THE SOFTWARE TO THE EXTENT THEY CANNOT BE EXCLUDED AS SET OUT ABOVE, BUT CAN BE LIMITED, ARE HEREBY LIMITED TO NINETY 990) DAYS FROM THE DATE YOU FIRST USED ANY PORTION OF CMSI-TYMBREL WEBSITE MANAGEMENT SOLUTION ON ANY COMPUTER.
(i) EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, EACH SERVICE IS PROVIDED OR MADE ACCESSIBLE "AS IS" AND "AS AVAILABLE", WITHOUT CONDITION, ENDORSEMENT, GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND BY CMSI-TYMBREL.
c. Third Party Items and Third Party Services, Linked Sites.
(i) EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, THE THIRD PARTY SERVICES AND THIRD PARTY ITEMS ARE NOT UNDER THE CONTROL OF CMSI-TYMBREL, CMSI-TYMBREL DOES NOT ENDORSE ANY PARTICULAR THIRD PARTY ITEMS OR THIRD PARTY SERVICES, AND CMSI-TYMBREL HAS NO RESPONSIBILITY WHATSOEVER FOR YOUR SELECTION, USE, ACCESS, OR IMPLEMENTATION OF THE THIRD PARTY SERVICES OR THIRD PARTY ITEMS.
(iii) WITHOUT LIMITING THE FOREGOING, EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, ALL THIRD PARTY ITEMS AND THIRD PARTY SERVICES ARE PROVIDED OR MADE ACCESSIBLE BY CMSI-TYMBREL, OR OTHERWISE USED BY YOU INCONJUNCTION WITH THE CMSI-TYMBREL WEBSITE MANAGEMENT SOLUTION, ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY CONDITION, ENDORSEMENT, GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, AND CMSI-TYMBREL SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY THIRD PARTY CLAIMING BY OR THROUGH YOU, FOR ANY ISSUE RELATING TO THE THIRD PARTY ITEMS, or THIRD PARTY SERVICES, INCLUDING, WITHOUT LIMITATION: (A) THE ACCURACY, OR CONTINUED AVAILABILITY OF SUCH THIRD PARTY ITEMS, OR THIRD PARTY SERVICES; (B) THE PERFORMANCE OR NON-PERFORMANCE OF THE THIRD PARTY ITEMS, OR THIRD PARTY SERVICES; OR (C) THE INTEROPERABILITY OF THE THIRD PARTY ITEMS, OR THE THIRD PARTY SERVICES.
(iv) WITHOUT LIMITING THE FOREGOING, EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, YOU SPECIFICALLY AGREE THAT CMSI-TYMBREL IS NOT RESPONSIBLE OR LIABLE FOR, ANY VIRUSES, OR ANY THREATENING, DEFAMATORY, OBSCENE, TORTIOUS, OFFENSIVE OR ILLEGAL THIRD PARTY SERVICES, THIRD PARTY ITEMS OR FOR ANY THIRD PARTY ITEMS OR THIRD PARTY SERVICES OR THE TRANSMISSION THEREOF, THAT INFRINGE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY THIRD PARTY ITEMS, OR THIRD PARTY SERVICES, SHALL BE SOLELY AGAINST THE RELEVANT THIRD PARTIES.
18. Limitation of Liability. SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THE LIMITATIONS OR EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE SPECIFIC REMEDIES SET OUT IN THIS AGREEMENT, IN NO EVENT SHALL CMSI-TYMBREL BE LIABLE FOR ANY OF THE FOLLOWING TYPES OF DAMAGES: CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR AGGRAVATED DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, FAILURE TO REALIZE ANY EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY, OR CORRUPTION OR LOSS OF DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH CMSI-TYMBREL WEBSITE MANAGEMENT SOLUTION, DOWNTIME COSTS, LOSS OF THE USE OF CMSI-TYMBREL WEBSITE MANAGEMENT SOLUTION OR ANY PORTION THEREOF OR OF ANY THIRD PARTY SERVICES OR THIRD PARTY ITEMS, COST OF SUBSTITUTE GOODS, COSTS OF COVER, FACILITIES OR SERVICES, COST OF CAPITAL, OR OTHER SIMILAR PECUNIARY LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CMSI-TYMBREL WEBSITE MANAGEMENT SOLUTION INCLUDING THE USE OR INABILITY TO USE, PERFORMANCE OR NON-PERFORMANCE OF CMSI-TYMBREL WEBSITE MANAGEMENT SOLUTION, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND EVEN IF CMSI-TYMBREL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CMSI-TYMBREL EXCEED THE GREATER OF: (i) THE AMOUNT PAID BY YOU FOR THE CMSI-TYMBREL WEBSITE MANAGEMENT SOLUTION AND/OR FOR THAT PORTION OF THE SOFTWARE THAT GAVE RISE TO THE CLAIM; AND (ii) TEN (10) CANADIAN DOLLARS.
c. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE EXTENT CMSI-TYMBREL IS LIABLE TO YOU, CMSI-TYMBREL SHALL ONLY BE LIABLE FOR DAMAGES INCURRED DURING THE PERIOD OF SUCH FAILURE, DELY OR NON-PERFORMANCE OF YOUR CMSI-TYMBREL WEBSITE MANAGEMENT SOLUTION.
d. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY SHALL BE LIABLE TO THE OTHER ONLY AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER WHETHER IN CONTRACT, TORT, OR OTHERWISE.
e. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS AGREEMENT SHALL: (i) APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR ACTION BY YOU INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, TORT, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY; (ii) SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN; (iii) NOT APPLY TO THE INDEMNITY OBLIGATIONS SET OUT HEREIN OR MISAPPROPRIATION OR INFRINGEMENT BY EITHER PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY OR A BREACH OF THE SECTIONS OF THIS AGREEMENT AND (iv) APPLY IN THE AGGREGATE, TO CMSI-TYMBREL IT’S SUCCESSORS, ASSIGNS, AND AUTHORISED CMSI-TYMBREL RESELLERS.
f. IN NO EVENT SHALL ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, DISTRIBUTOR, SUPPLIER, INDEPENDENT CONTRACTOR, OR ANY SERVICE PROVIDER (EXCEPT AS SET OUT ABOVE) OF CMSI-TYMBREL HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT.
g. YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS: (i) THE FEES AND OTHER TERMS IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT; AND (ii) CMSI-TYMBREL'S ABILITY TO OFFER AND YOUR ABILITY TO LICENSE SOFTWARE UNDER THIS AGREEMENT AND/OR CMSI-TYMBREL'S ABILITY TO MAKE THIRD PARTY ITEMS AND THIRD PARTY SERVICES ACCESSIBLE THROUGH CMSI-TYMBREL WEBSITE MANAGEMENT WOULD BE IMPACTED.
NOTHING IN THIS AGREEMENT IS INTENDED TO SUPERSEDE ANY EXPRESS WRITTEN AGREEMENTS OR WARRANTIES PROVIDED BY CMSI FOR PORTIONS OF YOUR CMSI-TYMBREL WEBSITE MANAGEMENT SOLUTION OTHER THAN THE SOFTWARE AND SERVICES.
19. Consent to Collection of Information.
20. Assignment and Delegation. You shall not assign this Agreement in whole or in part without the prior written consent of CMSI-TYMBREL (such consent may be withheld or conditioned at CMSI-TYMBREL 's discretion) and any assignment without CMSI-TYMBREL s prior written consent shall be null and void and of no effect. CMSI-TYMBREL may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractor or subcontractors.
21. Notices. Except as otherwise provided in this Agreement, all notices or other communications hereunder shall be deemed to have been duly given when made in writing and delivered in person, by courier or deposited in the mail, postage prepaid, registered mail or its equivalent, return receipt requested, and addressed to You at the billing address supplied to CMSI-TYMBREL by You, and addressed to Delta4 Digital Inc., PO Box 472, Welland, ON L3B 5R2. In addition to the foregoing, CMSI-TYMBREL may, at its option, give You any notice under this Agreement electronically. Electronic notice to You shall be deemed to have been duly given when transmitted to an email address furnished by You to CMSI-TYMBREL and if You have provided CMSI-TYMBREL with no such address, notice may be duly given when prominently posted on the Company’s Websites.
22. Force Majeure. Notwithstanding any other provision of this Agreement, neither Party shall be deemed in default of this Agreement for failure to fulfill its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing non-performance of any obligation by either Party to make payment to the other Party under this Agreement.
a. Third Party Beneficiaries. CMSI-TYMBREL 's affiliates and CMSI-TYMBREL and its affiliates' directors, officers and employees thereof are intended third party beneficiaries for the purpose of the Sections of this Agreement entitled "Disclaimer" (Section 14) and "Limitation of Liability" (Section 15). Except as otherwise specifically stated in this Section, the provisions herein are for the benefit of the Parties and not for any other person or entity.
b. Waivers of Default. No Party is to be deemed to have waived or forfeited any right under this Agreement, whether on the basis of failure, delay or any other legal or equitable doctrine, unless such waiver is made in writing signed by an authorized signatory of the Party against whom the waiver is sought to be enforced. Waiver of any provision, or any breach of any provision, of this Agreement in one instance shall not constitute a waiver as to any other instance.
c. Survival. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof shall so survive the completion of performance, cancellation or termination of this Agreement.
d. Governing Law and Dispute Resolution. This Agreement is to be governed by and construed under the laws of the Province of Ontario, excluding any body of law governing conflicts of law. Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, which the Parties are unable to resolve after good faith negotiations, shall be submitted first to the upper management level of the Parties. The Parties, through their upper management level representatives, which if You are an individual, is You, shall meet within thirty (30) days of the dispute being referred to them and if the Parties are unable to resolve such disagreement or dispute within thirty (30) days of meeting, except to the extent specifically prohibited by applicable law in Your jurisdiction, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in Ontario, Canada in accordance with the rules of arbitration of the Arbitration Act, 1991 (Ontario) (the "Ontario Rules") and shall be heard by one arbitrator appointed in accordance with the Ontario Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If the provisions of the foregoing are prohibited by law in the Province of Québec, the arbitration shall be: (i) held in the Province of Québec; (ii) except to the extent prohibited by law, settled by arbitration in accordance with the Québec Civil Code; and (iii) heard by one arbitrator appointed in accordance with the Québec Civil Code and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each Party shall bear one half of the costs associated with the arbitration proceedings. No dispute between the Parties, or involving any person but You, may be joined or combined together, without the prior written consent of CMSI-TYMBREL. Judgment upon the award rendered by the arbitrator may be entered in any Court having jurisdiction thereof. Notwithstanding the foregoing, CMSI-TYMBREL has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding: (i) amounts owed by You to CMSI-TYMBREL in connection with Your acquisition of Your CMSI-TYMBREL Website Management Solution or any portion thereof, if applicable; and (ii) violation or threatened violation of the Sections of this Agreement. You irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent, submit and attorn to the jurisdiction of the courts located in the Province of Ontario for any such claims arising from or related to this Agreement. The Parties specifically agree that, in the event that there is a dispute under this Agreement and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. The Parties hereby waive all rights to a trial by jury in any matter related to or arising from this Agreement.
e. Severability. To the extent any section, clause, provision or sentence or part thereof ("Part") of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that Part will not affect: (i) the legality, validity or enforceability of the remaining Parts of this Agreement; or (ii) the legality, validity or enforceability of that Part in any other jurisdiction, and that Part will be limited if possible and only thereafter severed, if necessary, to the extent required to render the Agreement valid and enforceable.
f. Language. It is the express will of the Parties that this Agreement and all related documents be drawn up in English. If this Agreement is translated into a language other than English, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof. Unless, and only to the extent, prohibited by law in Your jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including, without limitation, any correspondence, discovery, submissions, filings, pleadings, oral pleadings, arguments, oral arguments and orders or judgments.
g. Inconsistency. If there is any inconsistency between this Agreement and any software license or end user agreement (other than this Agreement) provided in the packaging or accompanying materials of any portion of Your CMSI-TYMBREL Website Management Solution, the provisions of this Agreement shall apply to the extent of the inconsistency. If there is any inconsistency between this Agreement and any software license or end user agreement provided in connection with any upgrades or updates to the Software, the provisions of such other license or end user agreements shall apply to the extent of the inconsistency. In the event of any inconsistency between any documentation provided in the packaging of any portion of Your Website Management Solution, and the Documentation for any item of Software, the provisions of the Documentation shall apply to the extent of the inconsistency.
h. Entire Agreement. This Agreement (which for the purposes of any Addenda hereto, shall in relation to the subject matter of that Addenda, include the terms of the Addenda), constitute(s) the entire agreement of the Parties with respect to the subject matter hereof and there are no provisions, understandings, communications, representations, warranties, undertakings, collateral agreements or agreements between the Parties relating to the Software other than as set out in this Agreement. Notwithstanding the foregoing, other agreements between the Parties may govern the use of other portions of Your CMSI-TYMBREL Website Management Solution. This Agreement supersedes any prior or contemporaneous provisions, understandings, communications, representations, warranties, undertakings, collateral agreements and agreements between the Parties, whether oral or written, with respect to the subject matter hereof, and You acknowledge that You have not relied on any of the foregoing in agreeing to enter into this Agreement. Except to the extent that CMSI-TYMBREL is expressly precluded by applicable law, CMSI-TYMBREL further reserves the right to make changes to this Agreement on a prospective basis, either to reflect changes in or required by law (including without limitation changes to ensure the enforceability of this Agreement) or changes in business practices, by providing You with reasonable notice of the change either electronically (as contemplated by the Notice provision above) or by posting notice of the change on the Company’s Websites and You should regularly review that site for changes. If You continue to use the Software and/or the Service more than sixty (60) days after notice of the change has been given, then You shall be deemed to have accepted this change. If You have a concern about the change(s) please contact support@Delta4 Digital.com within sixty (60) days after notice of the change(s) has been given to inquire as to options.
i. Compliance With Laws. You will, at Your expense, obtain and maintain all licenses, registrations and approvals required by the government authorities or applicable law in Your jurisdiction for the execution and performance of this Agreement or any related license agreements. In particular and for the avoidance of doubt, You will comply with all applicable laws and regulations and will obtain any necessary license, registration and approval from competent government authorities for the importation and use of any Software that contains commercial encryption or other security function required by applicable law. You will provide CMSI-TYMBREL with the assurances and official documents that CMSI-TYMBREL periodically may request to verify Your compliance with this obligation.
IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT CMSI-TYMBREL AT support@Delta4 Digital.com.
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