PLEASE READ THIS AGREEMENT CAREFULLY. YOU MUST READ UNDERSTAND, ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (“AGREEMENT”) BEFORE USING THE SERVICES, AS DESCRIBED BELOW. BY CLICKING ON THE DOWNLOAD BUTTON BELOW, YOU ENTER INTO A BINDING CONTRACT AND LEGAL AGREEMENT WITH THE ITGENERATIONS INC(“COMPANY”) AND YOU PROVIDE YOUR EXPRESS CONSENT TO RECEIVE THE SERVICES AND ACCESS TO ANY CONTENT (DEFINED BELOW). IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT, DO NOT CLICK ON THE DOWNLOAD BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO ACCESS OR USE THE SERVICES. COMPANY’S ACCEPTANCE OF THIS AGREEMENT AND PROVISION OF THE SERVICES IS EXPRESSLY CONDITIONAL UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS AND CONDITIONS. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY COMPANY, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
The “Site” means and includes a number of web sites available at or through various domains used, owned and operated by The ITGenerations Inc(“Company”) from time to time (and subject to change, addition, deletion or substitution from time to time in Company’s sole discretion), including but not limited to theITGenerations.com, together with any and all sub-domains, directories, sub-directories, files, folders and related URL’s, and may only be accessed and utilized by you under this Agreement as follows:
1. ACCESS TO SERVICES Subject to the terms and conditions of this Agreement, Company may offer to provide certain services, as described more fully on the Site, and which may be utilized by you through the processes provided on the Site or through the use of a phone or other communication device (collectively, the “Services”), solely for your own personal, non-commercial use, and not for the use or benefit of any third party. The Services shall include any and all materials, information or data displayed, distributed or performed on the Site or through the use of the Services (including, but not limited to text, software, scripts, graphics, photos, sounds, music, videos, logos, interactive features and other materials (collectively, “Content”). The Services, access to the Services, and any other services or products made available by Company are licensed, not sold, and you receive only a limited, personal, revocable and non-exclusive license to access, use and receive the Services as made available and permitted by Company from time to time. You will not sell, copy, transfer, make available, rent, lease, license, sub-license or lend the Services to any third party and you will not use the Services as a service bureau or application service provider providing services, information or Content to third parties. The Services shall include, but may not be limited to, local search applications that are intended to provide a rich mobile user experience, together with any other products or services Company makes available or agrees to perform for or on behalf of you, as well as the offering of any Content on the Site or through the use of the Services. Company may change, suspend or discontinue the Services at any time, including the availability of any feature, service, or Content, or terminate this Agreement at any time without notice and without liability. Company may also impose limits on certain features and services or restrict your access to any one or more parts or all of the Services without notice or liability. Company shall have the right, at its discretion, to modify this Agreement at any time by posting a notice on the Site, or by sending you a notice via email or other form of written notice. You agree to maintain and regularly access a valid and active email account. You shall in all cases be responsible for reviewing and becoming familiar with any such modifications by Company. Use of the Services by you following such posting of a notice on the Site or sending email notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
You warrant, represent and certify to Company that you are an individual and not a corporation or other legal entity, you are of full legal age and have full capacity in your jurisdiction of residence, location or domicile to form a binding contract, you are legally permitted to use the Services and access the Site, and you take full responsibility for your selection and use of the Services and access to the Site. This Agreement is void where prohibited by law, and the license granted to you to use the Services and access the Site is revoked in such jurisdictions. You consent to any collection, use or disclosure of personal information or personally identifiable data required to provide access to and deliver the Services or the Site and further to such collection, use or disclosure pursuant to any “opt in” arrangement or agreement between you and Company.
You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Site or otherwise use the Services, including, without limitation, hardware devices, software, and other internet, wireless, broadband, phone or other mobile communication device connection services. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services and you shall be responsible for all charges incurred in connection with use of the Services in connection with all such equipment and ancillary services.
2. SITE CONTENT The Site and the Services (for greater certainty, including the Content) are intended and made available solely for the permitted use of Company’s users and may only be used in accordance with the terms and conditions of this Agreement. The Content is protected by copyright, trademark, and other intellectual property rights under the laws of the United States of America, Canada and other countries, and international conventions and treaties. Except as expressly permitted herein, you shall abide by all copyright notices and trademark information, and all other restrictions contained in any Content accessed on the Site or through the Services. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided herein), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. You may not utilize the Content in any way other than as expressly provided in this Agreement. You shall not retain or store any significant portion of any Content in any form. Copying, retention or storing of any Content for other than personal, non-commercial use as permitted in this Agreement is expressly prohibited without prior written permission from Company, or from the copyright holder identified in such Content’s copyright notice. The Site and Services provided are protected by copyright as a work, collective work and/or compilation, pursuant to U.S. copyright laws, Canadian copyright and moral rights laws, international conventions, and other intellectual property laws.
3. RESTRICTIONS You are responsible for all of your activity in connection with the use of Services, and accessing the Site. You agree to fully comply with all applicable local, provincial, state, national and foreign laws, treaties and regulations in connection with the Services. Any fraudulent, vulgar, offensive, harassing, objectionable, abusive, tortuous, criminal or otherwise illegal activity will be grounds for immediate suspension or termination by Company, without notice or liability of any kind to you, of your license to the Services or to access the Site. Without limitation, you will not post or transmit, or cause to be posted or transmitted, any communication or solicitation or other “phishing” or “whaling” message designed or intended to obtain password, account, or private information from any user of the Company’s Services. Use of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including material that is threatening or obscene, or that constitutes or contains viruses, worms, trojan’s, malware, spyware, or to engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Site or through use of the Services, or any processes that run or are activated while you are not logged in. You will not run any automated calling robot or system or otherwise misuse the Services to violate any third party rights, including, without limitation, engaging in “spoofing.” Company has the right to report any and all suspicious or illegal activity to the appropriate legal or police authorities without notice to you.
Company does not promote, recommend or condone use of the Services during certain activities, such as automobile driving, where there is risk of accident, personal injury, property damage or death. You agree not to use the Services during such activities, and warrant, represent and certify that you will not do so.
4. COMPANY COMMUNICATIONS By downloading any of Company’s mobile applications on the Site and/or registering for the Services, you consent and opt-in to receive communications from Company by electronic means, which may include electronic mail, SMS text messages or other means selected and used by Company from time to time. You agree that any notice, agreement, disclosure or other communications that Company sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You agree to contract electronically. You may also opt out from receiving further Company electronic mail messages by unsubscribing through the Site.
5. DISCLAIMER OF WARRANTIES AND CONDITIONS THE SERVICES AND THE CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT MAKE, AND YOU DO NOT RECEIVE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE CONTENT. YOU ACKNOWLEDGE AND AGREE THAT COMPANY DOES NOT REPRESENT OR WARRANT, OR GIVE ANY CONDITION THAT: (I) THE USE OF THE SERVICES OR THE CONTENT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, DEVICE, PHONE, COMPUTER, SYSTEM OR DATA, (II) THE SERVICES OR THE CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) ANY DATA WILL BE ACCURATE OR RELIABLE, (IV) ERRORS OR DEFECTS WILL BE CORRECTED, OR, (V) THE SERVICES OR THE CONTENT, OR THE COMPUTERS AND SYSTEMS THAT MAKE THE SERVICES OR CONTENT AVAILABLE, ARE FREE OF VIRUSES, WORMS, TROJANS, MALICIOUS CODE, SPYWARE, MALWARE OR OTHER HARMFUL COMPONENTS OF ANY KIND. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM A COURSE OF CUSTOM OR TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OR CONDITION OF COMPLIANCE WITH ANY DESCRIPTION, OR IMPLIED WARRANTY OR CONDITION OF NON-INFRINGEMENT, VIOLATION AND/OR NON-MISSAPROPRIATION OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY COMPANY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
6. LIMITATION OF LIABILITY NEITHER COMPANY NOR ITS SUPPLIERS, LICENSORS, CONTRACTORS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR THE CONTENT SHALL BE LIABLE TO YOU OR ANYONE CLAIMING THROUGH YOU FOR ANY LOSS OF PROFITS OR REVENUE, LOSS OR INACCURACY OF DATA, FAILURE TO REALIZE EXPECTED RESULTS, REVENUES OR SAVINGS, ECONOMIC LOSS, OR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), RESULTING FROM YOUR ACCESS TO, RELIANCE ON, OR USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES AND/OR THE CONTENT, WHETHER BASED ON OR IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT COMPANY KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR HAS BEEN ADVISED OF SUCH POSSIBILITY, OR SUCH POSSIBILITY IS REASONABLY FORESEEABLE. COMPANY SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS IN THE SERVICES GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN OR SUPPLIED SUBSEQUENTLY BY AGREEMENT BETWEEN YOU AND COMPANY. YOU AGREE THAT, IN ALL CASES, ANY CLAIM BY YOU FOR DAMAGES AGAINST COMPANY ARISING FROM ANY ACCESS TO, USE OF OR RELIANCE ON THE SERVICES, THE SITE OR THE CONTENT, OR OTHERWISE ARISING UNDER THIS AGREEMENT, SHALL BE LIMITED TO YOUR PROVABLE DIRECT DAMAGES IN THE MAXIMUM AGGREGATE SUM OF ONE HUNDRED DOLLARS ($100.00) IN LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
7. INDEMNIFICATION OF COMPANYYOU SHALL INDEMNIFY, DEFEND AND FOREVER HOLD COMPANY, AND COMPANY’S LICENSORS, SUPPLIERS, CONTRACTORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, SUITS AND EXPENSES (INCLUDING LAWYERS’ FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SERVICES OR TO THE CONTENT, OR ANY BREACH OF THIS AGREEMENT BY YOU. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
8. GOVERNING LAW This Agreement shall in all cases be deemed an Agreement made in the province of Ontario, Canada. All questions concerning the validity, construction and operation of this Agreement and the performance of the obligations of the Parties hereunder shall be governed by the laws of the Province of Ontario and the laws of Canada applicable in Ontario. You attorn to the non-exclusive jurisdiction of the Court of Queen’s Bench of the Province of Ontario, or its successor, without regard to its conflicts of laws rules, and promise and undertake to bring no action or proceedings in any other court whatsoever. You agree that you will not commence any action as a class action, or seek to have any action to which you are a party certified as a class action, or join in any class action as a party. You agree that any Judgment or Order of a court of competent jurisdiction shall be fully registrable and enforceable against you in your jurisdiction of residence, location or domicile. Notwithstanding the foregoing, in the event of breach of this Agreement by you requiring Company to seek injunctive or other equitable relief, Company shall be entitled to seek such injunctive relief in any court of competent jurisdiction without the necessity or requirement of posting bond or undertaking as to damages or showing that money damages are not an adequate remedy.
9. GENERAL PROVISIONS If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, and then such provision(s) shall be severed from this Agreement, with all other provisions remaining in full force and effect. The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing. This Agreement comprises the entire agreement between Company and you with respect to the Services, the Site, the Content and its entire subject matter and supersedes repeals or modifies any other agreement between you and Company.