Last Update: April 3, 2019
We are delighted that you have come to our web site, operated by Jugaad Ventures Inc. in Vancouver, British Columbia, Canada.
Simbi™ is our online software application learning platform (“Simbi™” and the “Application”) designed for use with grade schools and children between the ages of 5 to 17. Simbi™ is part of a curriculum program which we believe helps improve learning outcomes in literacy through a reading app we developed.
BY REGISTERING FOR, ACCESSING, BROWSING, OR USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEEMNT.
Likewise, educators, schools, or educational organizations intending to use our Services with children will need to obtain the written consent of parents or guardians by using the Parent/Guardian Consent https://simbi.io/consent/ to enable registration for an Account.
This Agreement, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, TERMINATION PROVISIONS, and a MEDIATION/ARBITRATION PROCESS FOR RESOLVING ANY DISPUTE, all noted below, governs your access to and use of the Services.
- Definitions. When used in this Agreement, the capitalized terms listed below will have the following meanings:
“Account” refers to an account we establish for you following the registration process for the purpose of using, accessing, or otherwise benefitting from the functionality of the Application and other services available at the Web Site that we may provide from time to time during the period you use any part of the Services.
“Content” means any data, packets, information, communication or other material that is submitted, transmitted, copied, uploaded, transferred, controlled, downloaded, recorded (whether or not recorded with any the Application’s functionality or any other installed or stand-alone device or medium), or otherwise made available by you through the Services whether or not using your Log-In Information, including without limitation any and all documents, articles, transcripts, designs, icons, illustrations, images, logos, multimedia, photographs, sounds, text, trademarks, video clips, Personal Information, identities and likeness of Persons, recordings, and any other spoken, written or electronic expressions or works.
“End Users” refers to the individuals for whom an educational or other institution has subscribed for the Services, including school administrators, educators, and students, and are thereby registered authorized Users of the Services.
“Log-In Information” has the meaning ascribed to it set forth in Subparagraph 8(a)(ii).
“Person” means any individual, partnership, corporation, organization, trust, or legal entity.
“Services” includes all versions of the Web-based software application referred to by us as Simbi™, whether the trial version, basic version, or premium version or any other version available from time to time from us and any other functions utilized by you or made available to you in conjunction with accessing the Web Site.
“Subscription” or “Subscription Form” means the subscription order form submitted to us for paid use of the Application and any subsequent subscription order form submitted to us, specifying, among other things, the Term, the applicable Subscription fee, the billing period (monthly or annual), the number and category of End Users (ie., administrators, educators, or students) and other charges as agreed to between us, each such Subscription Form to be incorporated into and to become a part of this Agreement (and in the event of any conflict between the terms of this Agreement and the terms of any such Subscription Form, the terms of this Agreement shall prevail).
“Term” has the meaning ascribed to it set forth in Subparagraph 9(a)(i).
“Users” includes all End Users, and all Persons who Subscribe for or use any part of the Services, whether registered or unregistered.
“Web Site” means www.simbi.io, any subdomains thereof, and any successor websites.
- Grant of License. Subject to your continued compliance with the terms and conditions of this Agreement, Jugaad hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license, during the Term to access and use the Services for personal or educational but non-commercial purposes (the “License”). Upon the expiration or other termination of this Agreement, your Subscription, or your Account, the License will immediately and automatically cease.
- Ownership of Site, Application, and Services. The Web Site, the Application, and the Services are licensed, not sold, to you pursuant to, and solely for your use under, the terms and conditions of this Agreement and the License granted herein. Jugaad retains all right, title, and interest relating to or embodied in the Web Site, the Application, and the Services, including without limitation all intellectual property rights, technology, software, audio recordings, video recordings, and copies relating thereto. You do not acquire any ownership interest in the Web Site, Application or Services under this Agreement, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions and restrictions under this Agreement.
- Ownership of Marks. All graphics, logos, service names, domain names, trademarks, and trade names relating to the Web Site, the Application, and the Services (collectively, the “Marks”) are the property of Jugaad. Jugaad retains all right, title and interest, including all intellectual property rights, in and to the Marks. You are prohibited from using any of the Marks.
- License of Content. We do not own the Content you provide to us through your use of the Service. However, in order to provide our Services to you, we need certain limited rights to your Content. For example, when you upload your content, we need the rights to store it and serve it back to you. To allow this to happen, you hereby grant to Jugaad, solely for the purpose of providing the Web Site, the Application, and the Services, a non-exclusive, worldwide, royalty-free, fully-paid, transferable, assignable, perpetual, irrevocable right and license to host, cache, copy, display, perform, prepare derivative works of, use, make, have made, sell, offer for sale, import, transmit, upload, transfer, store, control, download, record, distribute, and otherwise exploit Content generated or submitted by you in connection with your use of the Web Site, the Application, and the Services, only within the context of the Services. Upon the expiration or other termination of this Agreement, this license will immediately and automatically cease except to the extent that Content is stored or otherwise retained by Jugaad pursuant to our data storage policies.
- Disclaimers Regarding Content. Jugaad does not verify or endorse any Content submitted by you. Users are solely responsible for all Content generated or submitted to us using the Services.
If a Subscriber is an educational institution or organization, then such Subscriber will be responsible for all Content generated or submitted by its End Users to us using the Services.
If you are a parent or guardian of a minor using the Services, your responsibility extends to the Content generated or submitted by your child to us using the Services.
All Users are responsible for making, retaining, or printing back-up copies of any or all Content generated or submitted to us. Jugaad has no responsibility or liability for the deletion or accuracy of Content, the failure to store, transmit, or receive transmission of Content (whether or not processed by the Web Site, the Application, or the Services), or the security, privacy, storage, or transmission of other communications originating from or otherwise involving use of the Web Site, the Application, or the Services.
- Restrictions on Use of Site, Application, and Services. You agree not to decompile, disassemble, reverse engineer, translate, or otherwise attempt to learn the source code of the Application or the Services. Unless expressly set forth in this Agreement, you may not create, assign, copy, create derivative works of, deliver, distribute (including by any frame protocol), lease, loan, modify, pledge, rent, sell, sublicense, timeshare, use (including by any mirror), or otherwise transfer, directly or indirectly, the Web Site, the Application, or the Services, any portion thereof or any rights thereto. You may not remove any Marks, copyright notices, or other proprietary rights or markings from, or alter or add to any Marks, copyright notices, or other proprietary rights or markings contained within, the Web Site, the Application, or the Services. You are prohibited from reselling or acting as a service bureau for the Web Site, the Application, or the Services, or any component thereof, except by prior written agreement with Jugaad. You may not access the Services if you are a direct competitor of Jugaad, except with Jugaad’s prior written consent. In addition, you may not access the Services for purposes of monitoring its availability, performance, or functionality, or for any other comparative or competitive purposes.
- User Representations, Warranties, and Covenants. Every User (including the parent or guardian of every non-adult User who has completed a Parent/Guardian Consent and registered an Account on behalf of each child who is a User) hereby represents, warrants, and covenants, with the knowledge and understanding that Jugaad will rely on these representations, warranties, and covenants, as follows:
(a) Use of Site, Application, and Services.
(i) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of you hereunder including having (A) a valid license to use the software applications, third party or otherwise, that generate Content, and (B) the unrestricted right to submit and use the Content. Unless you have all requisite rights to submit and use Personal Information and other information (whether belonging to you, or any third party), you are not permitted to submit such Content or information to the Web Site or to otherwise use your Content in any manner that involves the Web Site, the Application, or the Services. Your registration and use of the Services is in compliance with any and all applicable laws.
(ii) To gain access to and use the Web Site, the Application, and the Services (other than to merely browse publicly-accessible areas of the Web Site), you will be required to provide an e-mail address and to create a log-in ID or password (collectively, “Log-In Information”). If the Subscriber is an educational institution or other corporate Person, it will be solely responsible for all activity occurring under that Subscriber’s Log-In Information and any Log-In Information of its End Users. All Log-In Information must be kept confidential. Jugaad has no obligation or responsibility with regard to your use, distribution, disclosure, or management of Log-In Information. You agree that Jugaad may act in reliance, without investigation, upon any Log-In Information provided by you. We will not be required to inquire into the truth or evaluate the merits of any of your Log-In Information or any statement or representation contained in any notice or document presented by you. Any Person using your Log-In Information is conclusively deemed to have actual authority to engage in transactions using the Web Site, the Application, and the Services and, accordingly, all transactions made by any Person using a User’s Log-In Information are hereby authorized and approved by you, and you hereby agree to indemnify, defend, and hold Jugaad harmless from any and all claims, liabilities, losses, damages, expenses, or costs arising from or relating to any such transactions. If you have reason to believe that your Account is no longer secure (for example, in the event of unauthorized disclosure or use of your Log-In Information), then you agree to immediately notify Jugaad at [email protected] . You may be liable for the losses incurred by us or others due to any unauthorized use of your Account.
(iii) If you are a user of any Services and are under the age of 19 (a “Minor”), you may not register an Account without the consent and approval from your legal parent or guardian. A Minor beginning the registration process for himself or herself without our receipt of a Parent/Guardian Consent may have the registration process restricted until the parent or guardian approves or assumes responsibility for the Minor’s Account. Additionally, a Minor may use the Services if registered through certain educational organizations if that educational organization or the parent or guardian of such Minor has consented to use of the Services or part thereof.
(i) You are the owner, authorized licensee, or authorized user of all Content generated or submitted by you to the Web Site, the Application, or Services.
(ii) You will not publish, post, upload, record, publicly display, link to, or otherwise distribute or transmit any Content that:
(A) infringes, or may reasonably be expected to infringe, any copyright, patent, trademark, service mark, trade name, trade secret, domain name, or other intellectual property or proprietary right of Jugaad or any other Person, or any rights of publicity or privacy of any Person;
(B) violates any applicable law, statute, ordinance, or regulation (including without limitation applicable laws and regulations concerning anti-discrimination, false advertising, or unfair competition);
(C) promotes, solicits, comprises, or contains inappropriate, objectionable, or unlawful material, including material which is hateful, threatening, racist, or pornographic, incites violence, or contains nudity or graphic or gratuitous violence;
(D) is harmful to minors;
(E) contains cancelbots, corrupted files, time bombs, Trojan horses, viruses, worms, or any other similar data, programs, or software that may damage, expropriate, intercept, block, or interfere with any data, information, property, or system of another Person or that may damage or interfere with the normal functioning of the Web Site, the Application, or the Services;
(F) advocates, assists, incites, instructs, promotes, or otherwise encourages violence or any illegal activity;
(G) attempts to mislead others about your affiliation with Jugaad; or
(H) contains information for which you do not have the right to permit Jugaad to collect, store, and process.
(iii) You agree that the registration information provided to us to establish an Account is and will be true, accurate, and up-to-date at all times.
(c) Legal Compliance.
(i) You are authorized, and have all of the rights, to grant all licenses and other rights granted by you to Jugaad pursuant to this Agreement.
(ii) You are solely responsible for your familiarity and compliance with any and all laws that may prohibit you from accessing or using any part or all of the Web Site, the Application, or the Services, or that may limit or regulate such participation or use.
(iii) You agree not to use the Web Site, the Application, or the Services for any illegal purpose.
(iv) You agree to comply with all applicable local, state, national, and international laws and regulations, including without limitation laws relating to intercepting, monitoring, or recording communications, privacy, and data protection, and public displays or performances. You further agree that neither this Agreement nor any other right or remedy of Jugaad requires Jugaad to exercise any right or remedy in order to benefit or protect anyone, although Jugaad reserves the right to do so in its sole discretion.
(d) Use Restrictions. You acknowledge and agree that any unauthorized use, copying, or distribution of the Web Site, the Application, or the Services is expressly prohibited without the prior written consent of Jugaad in any instance. Without limitation, you agree not to do any of the following, each of which constitutes an unauthorized use:
(i) attempt to gain unauthorized access to the Web Site, the Application, or the Services, or to other accounts, computer systems, or networks connected to the Web Site, the Application, and the Services, whether through hacking, password mining, phishing, or any other means;
(ii) falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations, or labels of the origin or source of software or other material contained in a file that is uploaded;
(iii) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Web Site, the Application, and the Services;
(iv) engage in any systematic extraction of data or data fields, including without limitation e-mail addresses;
(v) disrupt, interfere with, or inhibit any other Person’s use and enjoyment of the Web Site, the Application, or the Services;
(vi) violate the rights of Jugaad or any third party, including without limitation, abuse, defame, defraud, harass, intimidate, bully, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of Jugaad or any third party;
(vii) use any Jugaad domain name as a false or pseudonymous return e-mail address;
(viii) use the Jugaad name to market or sell any goods or services (including advertising and making offers to buy or sell goods or services or implying that Jugaad in any manner endorses or is associated with such goods and services), unless Jugaad has given its prior written consent for such activity;
(ix) use the Web Site, the Application, or the Services to sell, market, or promote, anything that is false, deceptive, misleading, deceitful, misinformative, or constitutes “bait and switch”;
(x) use the Web Site, the Application, or the Services in any manner that could damage, disable, overburden, impair, or otherwise interfere with or disrupt the Web Site, the Application, or the Services or any networks connected to the Web Site, the Application, and the Services; or
(xi) access or use the Web Site, the Application, or the Services in any manner that could damage, disable, overburden, or impair any Jugaad server or the networks connected to any Jugaad server.
- Term, Renewal and Termination
(a) Term. The period of this Agreement (the “Term”) shall be as follows:
(i) Not Registered. If you have not registered for an Account, you will have the right to access the Web Site, the Application, and the Services on a limited basis which will preclude your right to benefit from the functionality of the Application for more than three sessions or instances of use (“Free Use”).
(ii) Paid Use. If you are a Subscriber using any paid version of the Application or Services made available from time to time by Jugaad (“Paid Use”), the Term will commence on 12:00 a.m. on the day following the day that Jugaad accepts your subscription request and continue until the last day of the month or year, depending on the monthly or annual subscription period you have selected. In each case, the Term shall continue until the date designated in the applicable subscription request you have completed, subject to automatic renewal in accordance with Subparagraph 9(a)(iii) or earlier termination in accordance with Paragraph 9(b).
(iii) Automatic Renewal. At the end of a Term of Paid Use, you will have the option to renew this Agreement on a paid basis. If you choose not to renew on this basis, this Agreement will terminate at 11:59 p.m. on the last day of the Term.
On the last day of each paid Term (which means any Term other than for Free Use), this Agreement shall automatically renew for another Term of the same length to begin at 12:00 a.m. on the following day (the “Renewal Date”),and you will be charged (to your Payment Account, as defined below) for another Term, until and unless this Agreement is terminated prior to the Renewal Date pursuant to Paragraph 9(b). YOU WILL BE RESPONSIBLE FOR ALL SUBSCRIPTION FEES AND OTHER CHARGES INCURRED DURING EACH RENEWAL TERM. IT IS YOUR RESPONSIBILITY TO CANCEL THIS AGREEMENT IF YOU DO NOT WISH TO RENEW ANY TERM.
(b) Methods of Termination.
(i) If you fail to accept an update or amendment of this Agreement as described in Section 32, this Agreement shall automatically terminate.
(ii) Jugaad may at any time prior to the end of the Term, by sending you a notice of termination to the email address included with your Log-In Information (which notice will be effective upon being sent by Jugaad), or by other means permitted in Paragraph 22(a), terminate this Agreement, the License, and your access to the Web Site, the Application, and the Services, if:
(A) You breach one or more provisions of Section 2 (Grant of License), Section 3 (Ownership of Site, Application, and Services), Section 7 (Restrictions on Use of Site, Application, and Services), Section 4 (Ownership of Marks), or Section 8 (User Representations, Warranties, and Covenants); or
(B) You breach any other provision of this Agreement, and you do not cure such breach within seven calendar days of notice from Jugaad describing the breach in reasonable detail; or
(C) Jugaad determines, in its sole and absolute judgment, that terminating your access to the Web Site, the Application, or the Services is advisable for security reasons, to protect Jugaad from liability, or to maintain the continued normal and efficient operation, and a consistent quality, of the Web Site, the Application, or the Services.
(iii) You may terminate this Agreement at any time, for any reason or no reason, by providing electronic notice to Jugaad via the Web Site at least 24 hours prior to your Renewal Date or by sending a hard copy notice to Jugaad that is received by Jugaad at least two calendar days prior to your Renewal Date.
(c) Effect of Termination.
(i) Upon termination of this Agreement, You must immediately cease using the Web Site (except for browsing publicly-accessible areas), the Application, and the Services. Your rights to access any and all Content submitted to your Account and processed by the Services shall terminate immediately upon termination of this Agreement.
(ii) Jugaad reserves the right, exercisable at any time following 90 calendar days after the effective date of any termination of this Agreement, to delete any Content associated with your use of the Web Site, the Application, or the Services, including without limitation any data files associated with your Content or your Personal Information.
(iii) No refund shall be due to you from Jugaad in the event of termination of this Agreement, for any reason, that occurs prior to the end of any Term except for any instance where you do not agree with any amended version of this Agreement then in effect, in which case, you will receive a proportional refund of the paid Subscription fee for the unused monthly or annual portion of the remaining period of the Term.
- Payment Authorization. Payment for Subscription to any of the Services via the Web Site is via PayPal or credit card, or another payment method authorized by Jugaad from time to time (your “Payment Account”). If this Agreement has not been validly terminated within 24 hours after any Renewal Date, your Payment Account will automatically be charged for another Term that is the same length as the Term just ended. Refunds, if any, will be credited to your Payment Account. Throughout the Term and until all amounts due from you have been paid in full, you hereby authorize Jugaad to charge to your Payment Account all amounts due under this Agreement to you, including without limitation all payments, taxes and additional fees. If we do not receive payment from your Payment Account for any reason, your access to the Web Site, the Application, and the Services may be deferred, suspended, or cancelled by Jugaad without notice. Questions regarding charges must be brought to the attention of our billing department in a notice sent in accordance with Paragraph 22(b) within 90 days after the end of the questioned billing period. All fees and other charges must be paid in the same currency as noted on the invoice and exclude applicable provincial and federal taxes, duties, tariffs, and similar charges, which will be charged to and payable separately by you.
- Electronic Communications. The Web Site, the Application, and the Services are conducted and provided by Jugaad electronically. You agree that Jugaad may communicate electronically with you with respect to any and all matters relating to the Web Site, the Application, and the Services. The security of communications sent over the Internet (including by email) is subject to many factors outside of the control of Jugaad. We do not guarantee the security or privacy of any such communications and shall bear no liability for any damages to you or any third party as a result of any such communications.
- Downtime. While we strive to keep downtime to a minimum, from time to time the Web Site, the Application, or the Services may be unavailable, whether due to periodic maintenance or otherwise. In the case of downtime longer than 48 hours, Jugaad will issue a credit for amounts previously paid for the Term during which the downtime occurs by extending the Term for twice the number of days equal to the downtime.
Any credit for downtime pursuant to the foregoing will be applied concurrent with the end of the Term in which the downtime occurs. Downtime credit pursuant to this Section 12 will not be issued for downtime caused by any of the following: (a) periodic maintenance (notice of which will be posted in advance on the Web Site at the point of User log-in or emailed to the email address contained in your primary Log-In Information), (b) any reason described in Section 27 (Force Majeure), or (c) your inability to connect to or to access the Web Site, Application, or Services due to problems related to your computer hardware, software, network, network setup, or security, or your internet service provider or any other similar problem.
- No Endorsement. Jugaad does not represent or endorse the accuracy or reliability of any Content you may generate or submit. You acknowledge that any reliance by you upon any Content (whether yours or others) shall be at your sole risk. Any Content placed on the Web Site by any User represents solely the views of the User posting the Content and does not represent the views of Jugaad.
- Links to Third Party Sites. The Web Site may include links that will take you to other websites outside of the Web Site (collectively, the “Linked Sites”). The Linked Sites are provided by Jugaad as a convenience and the inclusion of such links does not imply any endorsement by Jugaad of any Linked Site. Jugaad has no control over the Linked Sites. Under no circumstances will Jugaad be responsible for any content, product, or service of any Linked Site. You acknowledge and agree that your visits to any of the Linked Sites shall be made solely at your own risk. You acknowledge and agree that Jugaad is not responsible for the contents of any Linked Site, any link contained in a Linked Site, or any changes or updates to a Linked Site. You further acknowledge and agree that Jugaad is not responsible for any form of transmission (e.g. webcasting) received from any Linked Site.
- Investigations. Jugaad does not generally monitor User activity occurring in connection with the Web Site, the Application, or the Services. However, if Jugaad becomes aware of any actual or possible violations by you of any provision of this Agreement, including without limitation Section 8 (User Representations, Warranties, and Covenants), Jugaad reserves the right to investigate such actual or possible violations and Jugaad may, at its sole discretion, immediately terminate this Agreement (including the License granted herein), or may change, alter or remove Content, in whole or in part, without prior notice to you.
- Indemnification of Jugaad. You hereby agree to defend, indemnify, and hold Jugaad, its contractors, employees, agents, third party suppliers, and third party licensors harmless from and against any and all claims, liabilities, losses, damages, expenses, or costs (including without limitation actual reasonable fees, costs and other expenses of lawyers and expert witnesses) arising out of or related to:
(a) use of or access to the Web Site, the Application, or the Services by you or by any Person using your Log-In Information (whether or not such use is authorized by you);
(b) any actual or alleged violation by you or by any Person using your Log-In Information (whether or not such use is authorized by you) of this Agreement or applicable law;
(c) any actual or alleged infringement or violation by you or by any Person using your Log-In Information (whether or not such use is authorized by you) of any intellectual property, proprietary, privacy, or other right of any Person;
(d) any reproduction made by you of the communications, name, or other Personal Information of any other Users of the Web Site, the Application, or the Services;
(e) any claims or allegations for product liability, unsuitability or lack of fitness for a particular purpose;
(f) any disputes between you, any End Users, or other User of the Web Site, the Application, or the Services;
(g) any payments to Jugaad that are not honoured (through or from your Payment Account, and whether by PayPal, Stripe, a credit card company, a financial institution, or otherwise) in the first instance; or
(h) your negligent or willful misconduct.
In addition, the Person purchasing a Subscription or opening an Account in order to access and use the Web Site, the Application, and the Services pursuant to this Agreement: (i) agrees to pay all amounts due under this Agreement and to be responsible for all activity in such Person’s Account with Jugaad, whether such activity is conducted by such Person or by third parties, including without limitation, payment of fees incurred at the direction of any Users of the Web Site, the Application, or the Services, and (ii) shall defend, indemnify and hold Jugaad harmless from and against any and all claims, liabilities, losses, damages, expenses, or costs (including without limitation fees, actual reasonable costs and other expenses of lawyers and expert witnesses) arising out of or related to any such use by such other Persons.
- DISCLAIMER OF WARRANTIES. THE WEB SITE, THE APPLICATION, AND THE SERVICES, ARE PROVIDED “AS IS”, ON AN “AS AVAILABLE” BASIS, “WITH ALL FAULTS”, AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, JUGAAD HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE WEB SITE, THE APPLICATION, OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF AVAILABILITY OR COMPATIBILITY, OF WORKMANLIKE EFFORT, OR OF NON-NEGLIGENT PERFORMANCE.
- LIMITATION ON LIABILITY. INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT, IN NO EVENT WILL JUGAAD’S AGGREGATE LIABILITY TO ANY SUBSCRIBER OR USER (INCLUDING LIABILITY TO PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY A SUBSCRIBER OR USER), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE USE OF THE WEB SITE, THE APPLICATION, OR THE SERVICES, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF ANY DUTY), STRICT LIABILITY, STATUTORY LIABILITY, OR OTHERWISE EXCEED THE GREATER OF THE CONSIDERATION PAID BY SAID SUBSCRIBER OR USER TO JUGAAD UNDER THIS AGREEMENT DURING THE THREE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR CDN $100.00. IN NO EVENT WILL JUGAAD BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, LOSS OF GOODWILL OR BUSINESS PROFITS, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT AND EVEN IF JUGAAD HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
- No Liability for Use or Content. You agree that Jugaad will not be liable for any Content or the access, reproduction, storage, or other use by Jugaad thereof, including without limitation:
(a) any Content that is sent, received, held, released, or otherwise connected in any respect to the Web Site, the Application, or the Services;
(b) any Content that is sent but not received;
(c) any access to or alteration of Content by you or any other Person;
(d) any Content sent using, or included in, the Web Site, the Application, or the Services;
(e) any defamatory, illegal, obscene, offensive, or threatening Content;
(f) the conduct of you or anyone else in using the Web Site, the Application, or the Services; or
(g) any infringement of another Person’s rights, including without limitation, rights of privacy, intellectual property, or data protection.
Jugaad offers no guarantees and assumes no responsibility or liability of any type with respect to the third-party services, including without limitation any liability resulting from incompatibility between the Web Site, the Application, and the Services and any third-party services. You agree that you will not hold Jugaad responsible or liable with respect to any third-party services.
- No Liability for Errors. The Web Site, the Application, and the Services may include technical or other mistakes, inaccuracies or typographical errors. Jugaad may make changes to the Web Site, the Application, and the Services, including the prices and descriptions of any services listed therein, at any time in its sole discretion and without notice. Jugaad disclaims all liability with respect to the misuse, loss, modification, or unavailability of any User information or User Content.
- Use at Your Own Risk. The use of the Web Site, the Application, and the Services, and the downloading, access, or other use of any information or materials therefrom, shall be done solely at your own discretion and risk and with your understanding that you will be solely responsible for any damage to your computer system or any loss of data or any other harm that results from such activities. Jugaad will not be liable for any loss that you may incur as a result of someone else using your Log-In Information, either with or without your knowledge. Jugaad shall have no responsibility if the Application has been altered in any way, whether by you or by a third party, or for any failure that arises out of your use of the Web Site, the Application, and the Services with any hardware configuration, platform, or operating system, including without limitation any failure related to or arising from your inability to connect to or to access the Web Site, Application, or Services due to problems related to your computer hardware, software, network, network setup, or digital security, or your internet service provider, or any other similar problem.
- Notice. You and Jugaad will provide any required communication under this Agreement to each other as follows:
(a) Notice to You. Notice shall be sent to you either (i) via electronic means to the email address associated with your Account and shall be deemed delivered when sent by Jugaad, or (ii) by hard copy regular mail to the address contained in your Log-In Information (if a delivery address is provided) and shall be deemed delivered seven calendar days after mailing, or (iii) by facsimile to the number provided in your Log-In Information (if a facsimile number is provided) and shall be deemed delivered upon transmission.
(b) Notice to Jugaad. Notice shall be sent to Jugaad either (i) via regular mail, registered, signature required and return receipt requested, or (ii) via overnight courier with delivery signature required, in either case addressed to the principal place of business indicated on the Web Site, to the attention of the Chief Executive Officer. Any notice sent by you shall be deemed delivered when actually received and, if applicable, signed for by an authorized representative of Jugaad.
- Survival. Paragraph 9(c) and Sections 3, 4, 5, 6, 8, 11, 16, 17, 18, 19, 20, 21, 23, 25, 26, 27, 29, 30, 31, 33, 35, 36, 37, 38, 39, 40, and 41 will survive any cancellation, termination, expiration, or suspension of this Agreement.
- Reservation of Rights. Jugaad reserves all rights not expressly granted in this Agreement.
- Invalidity. Each provision of this Agreement is declared to be a separate and distinct promise and to be separable from all other such separate and distinct promises. If any promise, provision or part thereof is determined by a court of competent jurisdiction or other constituted legal authority to be void, unenforceable, or unreasonable in whole or in part, it will not be deemed to affect or impair the enforceability or validity of any other promise or provision in this Agreement or any part thereof and the said court or other constituted legal authority will have the authority to limit such promise or provision as it deems proper to most closely match the intent of the original provision and the remainder of the Agreement will continue in full force and effect..
- No Waiver. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless expressly agreed to by Jugaad in a non-electronic writing manually signed by a duly authorized officer of Jugaad.
- Force Majeure. Jugaad will not be liable for any non-performance or delay in performance caused by any event reasonably beyond the control of Jugaad including without limitation any or all accidents, acts of God, acts of any government, the activities of hackers, civil commotion, earthquakes, embargos, epidemics, explosions, fires, floods, extreme weather conditions, forces of nature, hostilities, acts of terrorism, health pandemic, malicious conduct, national emergency, revolutions, riots, wars, service outages resulting from equipment or software or telecommunications failures, power failures, network failures, or failures of third party service providers (including providers of internet services and telecommunications).
- Assignment. You may not assign this Agreement, or any rights or obligations hereunder, whether by contract, operation of law, or otherwise, without the prior written consent of Jugaad. This Agreement may be assigned by Jugaad without notice to or consent from You.
- Entire Agreement. This Agreement constitutes the entire agreement and understanding between Jugaad and you with respect to the Web Site, the Application, and the Services and supersedes all other prior or contemporaneous communications, agreements, understandings, and proposals, whether written, oral, electronic or non-electronic, between Jugaad and you regarding its subject matter.
- Admissibility. A printed version of this Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- Modification to Terms. Jugaad reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Web Site. Each User is responsible for regularly reviewing this Agreement. Any User’s continued use of the Services after any such changes will constitute consent to such changes.
- Authority. If you are an individual and are entering into this Agreement on behalf of a Person, you represent and warrant that you have due authorization from the governing body of such Person to enter into this Agreement and to bind such Person to all of the terms and conditions of this Agreement.
- Headings. The headings to, and the division of this Agreement into Sections, Subsections, Paragraphs, and Subparagraphs are for ease of reference only and will not in any way affect or be used in interpreting any of the provisions of this Agreement. Unless the context otherwise requires, a reference to a Section, Subsection, Paragraph, Subparagraph, or Schedule by number or letter is a reference to the appropriate Section, Subsection, Paragraph, Subparagraph, or Schedule in this Agreement.
- Construction. In this Agreement, except as otherwise expressly provided or as the context otherwise requires:
(a) the words “include” or “including” when following any general term of statement are not to be interpreted as limiting the general term or statement to the specific items or matters set forth or to similar terms or matters but rather as permitting it to refer to all other items or matters that could reasonably fall within its broadest possible scope;
(b) unless otherwise expressly noted herein, all references to money in this Agreement shall be to lawful currency of Canada;
(c) a reference to a statute includes every regulation made pursuant thereto, all amendments to the statute or to any such regulation in force from time to time and any statute or regulations that may be passed which have the effect of supplementing or superseding such statute or such regulations;
(d) a reference to a time or date is to the local time or date in Vancouver, British Columbia, Canada, unless specifically indicated otherwise;
(e) the words “herein”, “hereof”, “hereby”, and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection, Paragraph, Subparagraph or other subdivision or Schedule;
(f) a capitalized cognate of a defined term has a meaning corresponding to that of the defined term;
(g) the singular of any term includes the plural and vice versa and the use of any term is equally applicable to any gender and where applicable to a corporate entity;
(h) any reference in this Agreement to “days” will, unless otherwise specified, refer to calendar days;
(i) the conjunction “or” shall be understood in its inclusive sense (and/or).
- Governing Law. This Agreement will be governed by and interpreted in accordance with the laws (procedural and substantive) of the Province of British Columbia and Canada as if made and performed by and between parties situate in such province and without regard to any conflict of laws doctrine.
- Mediation and Arbitration. Any and all disputes, controversy, or claims arising out of or in connection with or in relation to this Agreement or the breach thereof, including any question regarding its existence, validity, performance, or termination and any tort or other common law or statutory claim arising out of or relating to its negotiation, execution, or performance (collectively, the “Dispute”), will be first subject to non-binding mediation in an effort to resolve any such Dispute by participating in a structured negotiation conference with a mediator under the Commercial Mediation Rules of the British Columbia International Commercial Arbitration Centre. The mediation will be held in Vancouver, British Columbia, Canada. The parties agree to use best efforts to conduct any dispute resolution procedures herein as efficiently and cost effectively as possible. All aspects of the mediation will be treated as confidential. The costs of the Mediator will be shared equally between the parties. The mediation may, at the option of either party, occur by videoconference transmission. The party electing to participate in the mediation by videoconference will be responsible for paying the costs of one Mediator who must attend and participate in the mediation at the videoconference facility selected by the party engaging such person.
- Arbitration. If Jugaad and a User are unable to resolve the Dispute by the mediation procedures contemplated under Section 37 within 15 days of the appointment of a Mediator, or such longer period of time which we may both agree to, all Disputes will be referred to and finally resolved by arbitration under the Domestic Commercial Arbitration Rules of the British Columbia International Commercial Arbitration Centre with the losing party paying all costs of arbitration (including reasonable legal fees and expenses). The place of arbitration will be Vancouver, British Columbia. The appointing authority will be the British Columbia International Commercial Arbitration Centre. The case will be administered by the British Columbia International Commercial Arbitration Centre and the determination of such arbitrator will be final and binding upon the parties hereto. Judgment on the award of an arbitrator may be entered into any court having jurisdiction over the person or property of the person against whom enforcement of the judgment is sought and each of the parties agrees to and hereby waives any defences against the enforceability and execution of any such judgment awarded by the arbitrator as hereby contemplated. You hereby waive (a) any right to object to venue or jurisdiction based on inconvenient forum or for any other reason; and (b) any statutory or other right pursuant to the laws of the jurisdiction in which You are ordinarily resident to have a case or hearing relating to this Agreement adjudicated or resolved in that jurisdiction.
- Appointment of Mediator and Arbitrator. Any mediator or arbitrator will be appointed, pursuant to Sections 37 and 38, by agreement between the us or, in default of agreement, such mediator or arbitrator will be appointed by a Justice of the Supreme Court of British Columbia sitting in the Courts of Vancouver, upon the application of either Jugaad or You.
- Procedure. In any arbitration proceeding contemplated by these terms and conditions, Jugaad and You agree that each party will be entitled to discovery to the same extent permitted by the Supreme Court of British Columbia as if the matter were being adjudicated in such Court.
- Dispute Resolution. Jugaad and You agree that, unless otherwise required in order to comply with deadlines under the law, neither party will file any claim or institute legal proceedings with respect to any Dispute until:
(a) notice has been given to the other party of its grievance;
(b) the other party has failed to provide a prompt and effective remedy;
(c) the party with the grievance has requested that representatives for both parties meet and discuss the matter in order to consider informal and amicable means of resolution; and
(d) either such meeting as contemplated by Paragraph 41(c) failed to occur within 30 days after such request or the meeting did not produce a mutually satisfactory resolution of the matter.