END USER TERMS AND CONDITIONS
for COME together Web-based strataLINKs™ Service
These Terms and Conditions are between COME TOGETHER SYSTEMS INC., a British Columbia, Canada corporation (the “Company”, “Come Together”, or “we) and the individual End User agreeing to these terms (“you”).
Updated on March 2, 2011.
These Terms and Conditions are effective as of the date you complete the electronic acceptance process and click the “I Accept” button below. You represent and warrant that (i) you have read and understand these Terms and Conditions; and (ii) you agree to all of these Terms and Conditions. These Terms and Conditions, including the Warranty Disclaimers, Limitations of Liability and termination Provisions below, govern your access to and use of the Service.
If you do not agree with any version of these Terms and Conditions in effect at the time, you will have the right to terminate the agreement constituted by your initial acceptance to be bound by these Terms and Conditions.
BY ACCESSING OR USING OUR WEB SITE, THE SOFTWARE OR THE SERVICE (OTHER THAN MERELY BROWSING OUR WEB SITE), AND OTHER VALUE RECEIVED, YOU AGREE TO COMPLY WITH AND BE BOUND BY THESE TERMS AND CONDITIONS.
1. Definitions. When used in this Agreement, the capitalized terms listed below will have the following meanings:
"Account" refers to an account provided under the Service for the purpose of using, accessing or otherwise benefitting from the functionality of the Service that Come Together may provide from time to time.
“Agreement” means these Terms and Conditions and any materials available on the Web Site specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Come Together from time to time in its sole discretion.
“Content” means any data, packets, information, communication or other material that is transmitted, copied, uploaded, transferred, controlled, downloaded, recorded (whether or not recorded with Come Together’s functionality or any other installed or stand-alone device or medium) or otherwise made available through the Web Site, the Software or the Service whether or not using your Log-In Information, including without limitation any and all documents, articles, transcripts, computer programs, 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 User" refers to the individual who has directly or indirectly paid the appropriate subscription fee to a registered customer of Come Together for, or otherwise received authorization to use, the Service and is thereby a registered authorized user of the Service.
“Log-In Information” has the meaning ascribed to it set forth in Subparagraph 8(a)(ii).
“Person” means any individual, partnership, corporation, trust, or legal entity.
“Service” means the Web-based application referred to by Come Together as Stratalinks™ and described in these Terms and Conditions, that provides you with an Account or access to the functionality and feature set for Stratalinks™, whether the trial version, basic version, or premium version or any other version available from time to time from Come Together and any other functions utilized by you or made available to you in conjunction with accessing the Web Site and the Software.
“Software” means the proprietary software and all associated documentation and other materials utilized by you or made available to you by the Company for use in accessing the Web Site and using the Service.
“Term” has the meaning ascribed to it set forth in Subparagraph 9(a)(i).
“Web Site” means www.stratasphere.net, any subdomains thereof, and any successor websites.
2. Grant of License. Subject to your continued compliance with these Terms and Conditions, Come Together hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license, during the Term to access and use the Service for personal purposes (the “License”). Upon the expiration or other termination of this Agreement or your subscription to continue using the Service, the License will immediately and automatically cease.
3. Ownership of Site, Software and Service. The Web Site, the Software and the Service are licensed, not sold, to you pursuant to, and solely for your use under, these Terms and Conditions and the License granted herein. Come Together retains all right, title, and interest relating to or embodied in the Web Site, the Software and the Service, including without limitation all intellectual property rights, technology, software and copies relating thereto.
4. Ownership of Marks. All graphics, logos, service names, domain names, trademarks and trade names relating to the Web Site, the Software and the Service (collectively, the “Marks”) are the property of Come Together. Come Together 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.
5. License of Content. You hereby grant to Come Together, solely for the purpose of providing the Web Site, the Software and the Service, a non-exclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, display, transmit, upload, transfer, store, control, download, record and distribute Content generated or submitted by you in connection with your use of the Web Site, the Software and the Service. 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 Come Together pursuant to our data storage policies.
6. Disclaimers Regarding Content. Come Together does not verify or endorse any Content submitted by you. You are solely responsible for all Content you generate or submit. You are also responsible for making, retaining, or printing back-up copies of any or all Content generated or submitted by you. Come Together 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 Software or the Service), or the security, privacy, storage or transmission of other communications originating from or otherwise involving use of the Web Site, the Software or the Service.
7. Restrictions on Use of Site, Software and Service. You agree not to decompile, disassemble, reverse engineer, translate or otherwise attempt to learn the source code of the Software or the Service. 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 Software or the Service, 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 Software or the Service. You are prohibited from reselling or acting as a service bureau for the Web Site, the Software or the Service or any component thereof, except by prior written agreement with the Company. You may not access the Service if you are a direct competitor of the Company or a principal employed by a direct competitor of the Company, except with the Company’s prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
8. User Representations, Warranties and Covenants. You hereby represent, warrant, and covenant, with the knowledge and understanding that the Company will rely on these representations, warranties, and covenants, as follows:
(a) Use of Site, Software and Service.
(i) You have all necessary capacity 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 Software or the Service.
(ii) To gain access to and use the Web Site, the Software and the Service (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”). You are solely responsible for all activity occurring under your Log-In Information. You must keep your Log-In Information confidential. Come Together has no obligation or responsibility with regard to your use, distribution, disclosure or management of Log-In Information. You agree that Come Together 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 Software and the Service and, accordingly, all transactions made by any Person using your Log-In Information are hereby authorized and approved by you, and you hereby agree to indemnify, defend and hold Come Together harmless from any claims or damages arising from or relating to any such transactions.
(i) You are the owner, authorized licensee or authorized user of all Content generated or submitted by you to the Web Site, the Software or Service.
(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 Come Together 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, 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 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 Software or the Service;
(F) advocates, assists, incites, instructs, promotes or otherwise encourages violence or any illegal activity;
(G) attempts to mislead others about your affiliation with Come Together; or
(H) contains information for which you do not have the right to permit Come Together to collect, store and process.
(c) Legal Compliance.
(i) You are authorized, and have all of the rights, to grant all licenses and other rights granted by you to Come Together 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 Software or the Service, or that may limit or regulate such participation or use.
(iii) You agree not to use the Web Site, the Software or the Service 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 Come Together requires Come Together to exercise any right or remedy in order to benefit or protect anyone, although Come Together 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 Software or the Service is expressly prohibited without the prior written consent of Come Together 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 Software or the Service, or to other accounts, computer systems or networks connected to the Web Site, the Software and the Service, whether through hacking, password mining 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 Software and the Service;
(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 Software or the Service;
(vi) violate the rights of Come Together 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 Come Together or any third party;
(vii) use any Come Together domain name as a false or pseudonymous return e-mail address;
(viii) use the Come Together name to market or sell any goods or services (including advertising and making offers to buy or sell goods or services or implying that Come Together in any manner endorses or is associated with such goods and services), unless Come Together has given its prior written consent for such activity;
(ix) use the Web Site, the Software or the Service to sell, market, or promote, anything that is false, deceptive, misleading, deceitful, misinformative, or constitutes "bait and switch”;
(x) use the Web Site, the Software or the Service in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Web Site, the Software or the Service or any networks connected to the Web Site, the Software and the Service; or
(xi) access or use the Web Site, the Software or the Service in any manner that could damage, disable, overburden or impair any Come Together server or the networks connected to any Come Together server.
9. Term, Renewal and Termination
(a) Term. The period of this Agreement (the “Term”) shall be as follows:
(i) Free Version. If you have subscribed to the Web Site, the Software and the Service using the free trial version (“Free Use”), the Term will commence on 12:00 a.m. on the day following the day that Come Together accepts your subscription request for such Free Use. Subject to the terms of this Agreement, Free Use will continue for a period of 60 calendar days and then terminate, unless an alternative agreement is made with Stratalinks.
(ii) Paid Use. If you have acquired the right to use the Service due to your membership in a strata corporation, strata council, employer, or by or on behalf of any other Person (each, a “Subscriber”), the Software and the Service using any paid version made available from time to time by Come Together (“Paid Use”), the Term will commence on 12:00 a.m. on the day following the day that Come Together accepts the Subscriber’s subscription request and continue until the last day of the month or year, depending on the monthly or annual subscription period the Subscriber has selected. In each case, the Term shall continue until the date designated in the applicable subscription request the Subscriber has 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, the Subscriber will have the option to renew this Agreement on a paid basis. If the Subscriber chooses not to renew on this basis, this Agreement will terminate at 11:59 p.m. on the last day of the Term.
(b) Methods of Termination.
(i) If you fail to accept an update or amendment of this Agreement as described in Section 30, this Agreement shall automatically terminate.
(ii) Come Together 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 Come Together), or by other means permitted in Paragraph 21(a), terminate this Agreement, the License, and your access to the Web Site, the Software and the Service, if:
(A) You breach one or more provisions of Section 2 (Grant of License), Section 3 (Ownership of Site, Software and Service), 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 Come Together describing the breach in reasonable detail; or
(C) Come Together determines, in its sole and absolute judgment, that terminating your access to the Web Site, the Software or the Service is advisable for security reasons, to protect Come Together from liability, or to maintain the continued normal and efficient operation, and a consistent quality, of the Web Site, the Software or the Service.
(iii) You may terminate this Agreement at any time, for any reason or no reason, by providing electronic notice to Come Together via the Web Site at least 24 hours prior to your Renewal Date or by sending a hard copy notice to Come Together that is received by Come Together 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 Software and the Service. 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) Come Together 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 Software or the Service, including without limitation any data files associated with your Content or your Personal Information.
(iii) No refund shall be due to you from Come Together 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.
10. Electronic Communications. The Web Site, the Software and the Service are conducted and provided by Come Together electronically. You agree that Come Together may communicate electronically with you with respect to any and all matters relating to the Web Site, the Software and the Service. The security of communications sent over the Internet (including by email) is subject to many factors outside of the control of Come Together. 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.
11. Downtime. While we strive to keep downtime to a minimum, from time to time the Web Site, the Software or the Service may be unavailable, whether due to periodic maintenance or otherwise.
12. No Endorsement. Come Together 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 Come Together.
13. 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 Come Together to you as a convenience and the inclusion of such links does not imply any endorsement by Come Together of any Linked Site. Come Together has no control over the Linked Sites. Under no circumstances will Come Together 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 Come Together 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 Come Together is not responsible for any form of transmission (e.g. webcasting) received from any Linked Site.
14. Investigations. Come Together does not generally monitor user activity occurring in connection with the Web Site, the Software or the Service. However, if Come Together becomes aware of any actual or possible violations by you of any provision of this Agreement, including without limitation Section 8 (User Representations and Warranties), Come Together reserves the right to investigate such actual or possible violations and Come Together 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.
15. Indemnification of Come Together. You hereby agree to defend, indemnify and hold Come Together harmless from and against any and all claims, liabilities, damages 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 Software or the Service 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 Software or the Service;
(e) any claims or allegations for product liability, unsuitability or lack of fitness for a particular purpose;
(f) any disputes between you and any other user of the Web Site, the Software or the Service; or
(g) the negligence or wilful misconduct of yourself.
16. DISCLAIMER OF WARRANTIES. THE WEB SITE, THE SOFTWARE AND THE SERVICE, ARE PROVIDED “AS IS”, ON AN “AS AVAILABLE” BASIS, “WITH ALL FAULTS”, AND WITHOUT ANY WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMMUNITY BUILD HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS AND DUTIES OF ANY KIND (IF ANY), WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE WEB SITE, THE SOFTWARE, OR THE SERVICE, 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. THE WEB SITE, THE SOFTWARE AND THE SERVICE ARE BUSINESS SERVICES, NOT PRODUCTS, THE APPLICATION OF WHICH IS COMMERCIAL RATHER THAN CONSUMER-ORIENTED IN NATURE. IN ACCEPTING THIS AGREEMENT, YOU RECOGNIZE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT CONSUMER PROTECTION LAWS DO NOT APPLY TO YOUR USE OF THE WEB SITE, THE SOFTWARE AND THE SERVICE NOR TO ANY OF THE TRANSACTIONS CONTEMPLATED BY AND CONSUMMATED PURSUANT TO THIS AGREEMENT.
17. 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 THE COMPANY’S AGGREGATE LIABILITY to you (including liability to person or persons whose claim or claims are based on or derived from a right or rights claimed by you), with respect to any and all Claims at any and all times arising from or related to the USE OF THE WEB SITE, THE SOFTWARE OR THE service, in contract, tort (INCLUDING NEGLIGENCE OR BREACH OF ANY DUTY), strict liability, statutory liability or otherwise exceed the consideration paid by you to the COMPANY under this Agreement DURING THE THREE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. In no event will the COMPANY be liable to you 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 THE COMPANY 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.
18. No Liability for Use or Content. You agree that Come Together will not be liable for any Content or the access, reproduction, storage or other use by Come Together thereof, including without limitation:
(a) any Content that is sent, received, held, released or otherwise connected in any respect to the Web Site, the Software or the Service;
(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 Software or the Service;
(e) any defamatory, illegal, obscene, offensive or threatening Content;
(f) the conduct of you or anyone else in using the Web Site, the Software or the Service; or
(g) any infringement of another Person’s rights, including without limitation rights of privacy, intellectual property or data protection.
Come Together 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 Software and the Service and any third-party services. You agree that you will not hold Come Together responsible or liable with respect to any third-party services.
19. No Liability for Errors. The Web Site, the Software and the Service may include technical or other mistakes, inaccuracies or typographical errors. Come Together may make changes to the Web Site, the Software and the Service, including the prices and descriptions of any services listed therein, at any time in its sole discretion and without notice to you or any other Person. Come Together disclaims all liability with respect to the misuse, loss, modification or unavailability of any of your Content, information or materials.
20. Use at Your Own Risk. The use of the Web Site, the Software and the Service, 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. Come Together 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. Come Together shall have no responsibility if the Software 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 Software and the Service 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, Software or Service due to problems related to your computer hardware, software, network, network setup or security, or your internet service provider or any other similar problem.
21. Notice. You and Come Together 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 Come Together, or (ii) by hard copy regular mail to the address contained in your Log-In Information and shall be deemed delivered seven calendar days after mailing, or (iii) by facsimile to the number provided in your Log-In Information and shall be deemed delivered upon transmission.
(b) Notice to Come Together. Notice shall be sent to Come Together 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 President, or (iii) by facsimile to the Company’s facsimile number indicated on the Web Site, to the attention of the President. Any notice sent by you shall be deemed delivered when actually received and, if applicable, signed for by an authorized representative of Come Together.
22. Survival. Paragraph 9(c) and Sections 3, 4, 5, 6, 8, 11, 15, 16, 17, 18, 19, 20, 22, 24, 25, 26, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38 and 39 will survive any cancellation, termination, expiration, or suspension of this Agreement.
23. Reservation of Rights. Come Together reserves all rights not expressly granted in this Agreement.
24. 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..
25. 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 Come Together in a non-electronic writing manually signed by a duly authorized officer of Come Together.
26. Force Majeure. Come Together will not be liable for any non-performance or delay in performance caused by any event reasonably beyond the control of Come Together including without limitation accidents, acts of God, the activities of hackers, civil commotion, earthquake, embargo, epidemics, explosion, fire, flood, extreme weather condition, force of nature, hostilities, act of terrorism, health pandemic, malicious conduct, national emergency, revolutions, riots or 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).
27. 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 Come Together. This Agreement may be assigned by Come Together without notice to or consent from you.
28. Entire Agreement. This Agreement constitutes the entire agreement and understanding between Come Together and you with respect to the Web Site, the Software and the Service and supersedes all other prior or contemporaneous communications, agreements, understandings and proposals, whether written, oral, electronic or non-electronic, between Come Together and you regarding its subject matter.
29. 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.
30. Modification to Terms. Come Together 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. You are responsible for regularly reviewing this Agreement. Your continued use of the Service after any such changes will constitute consent to such changes.
31. 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.
32. Exclusion of CISG. The application of the United Nations Convention on Contracts for the International Sale of Goods will not apply to any part of the transactions contemplated by this Agreement and the same is hereby strictly excluded. For greater certainty, this Agreement will be interpreted as a contract for services.
33. Construction. In this Agreement, except as otherwise expressly provided or as the context otherwise requires:
(a) the word “or” is not exclusive, and 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; and
(h) any reference in this Agreement to “days” will, unless otherwise specified, refer to calendar days.
34. 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.
35. 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.
36. Arbitration. If Come Together and you are unable to resolve the Dispute by the mediation procedures contemplated under Section 35 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.
37. Appointment of Mediator and Arbitrator. Any mediator or arbitrator will be appointed, pursuant to Sections 35 and 36, by agreement between the parties or, in default of agreement, such mediator or arbitrator will be appointed by a Judge of the Supreme Court of British Columbia sitting in the Courts of Vancouver, upon the application of either party.
38. Procedure. In any arbitration proceeding contemplated by these terms and conditions, the parties agree that they 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.
39. Dispute Resolution. The parties agree that, unless otherwise required in order to comply with deadlines under the law, they will not file any action 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 39(c) failed to occur within 30 days after such request or the meeting did not produce a mutually satisfactory resolution of the matter.