LICENSED APPLICATION TERMS AND CONDITIONS OF USE
This is a legally binding agreement (the “Agreement”) between You and Application Provider. As it contains important information regarding Your legal rights, remedies and obligations, including limitation and exclusion clauses, please review the following terms and conditions carefully before using this Licensed Application. By accessing, browsing, subscribing or otherwise using this Licensed Application, You agree to be unconditionally bound by and to follow the terms and conditions of this Agreement, as amended from time to time by Application Provider in its sole discretion without further notice. Any updates to this Agreement, along with the date on which it was last updated, will be accessible through the Licensed Application. For this reason, Application Provider encourages You to review the terms and conditions of this Agreement whenever You use this Licensed Application. You understand and agree that Your continued use of the Licensed Application after any such changes constitutes Your acceptance of the revised Agreement.
IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THIS LICENSED APPLICATION.
“Affiliate” means, with respect to an entity, any person or entity that directly or indirectly owns, is owned by, or is under common ownership with that entity. For purposes of this definition, ownership means control of more than a 50% interest in an entity.
“Agreement” means this Licensed Application Terms and Conditions of Use.
“Application Content” has the meaning set out in Section 4.
“Application Provider” means Flipp Operations Inc., the owner and operator of the Licensed Application and the licensor of this Licensed Application.
“Business Day” means every day except Saturdays, Sundays and statutory holidays in the Province of Ontario, during business hours between 9AM and 5PM Eastern Standard Time.
“Feedback” has the meaning set out in Section 3.
“License” has the meaning set out in Section 2.
“Licensed Application” means the website, and the service performed or provided by the Licensed Application, that is delivered to You hereunder, together with any update, when and if made available to You by Application Provider and licensed to You pursuant to this Agreement.
“Representatives” means an entity’s employee, director, officer, legal counsel, financial advisor (including accountants and auditors), agent, and contractor.
“Third Party Content” has the meaning set out in Section 4.
2. SCOPE OF LICENSE AND LICENSE RESTRICTIONS
Subject to the terms and conditions of this Agreement, You are granted a limited, non-exclusive, nontransferable, non-sublicensable license to use the Licensed Application for personal and non-commercial use provided that You keep all copyright, trademark, patent and other proprietary notice intact (“License”).
You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). You may not republish Application Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Application Content not expressly authorized under this Agreement is strictly prohibited.
Any use outside of the scope of the License is a violation of the rights of the Application Provider and its licensors. If You breach this restriction, Application Provider will terminate this License granted herein and You may be subject to prosecution and damages. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by implication or otherwise. The License is revocable at any time without notice and with or without cause.
The terms of this License will govern any upgrades provided by Application Provider that replace and/or supplement the Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
3. SUGGESTIONS, COMMENTS AND FEEDBACK
For any suggestions, comments, or other feedbacks (“Feedback”) disclosed, submitted or offered to Application Provider, You grant Application Provider a perpetual, royalty-free, irrevocable, transferable, unrestricted, and sub-licensable right and license to use the Feedback as Application Provider desires.
You agree that Application Provider shall be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback provided to it as it sees fit. You hereby waive all Your moral rights in the Feedback for the benefit of Application Provider and its Affiliates and the respective successors, assigns and licensees.
You represent and warrant that the Feedback You disclose, submit, or otherwise offer to Application Provider is entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise, and that the Feedback complies with this Agreement. You further represent and warrant that the Feedback will not cause injury to any person or entity and that it will not contain any harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable content.
Notwithstanding anything in this Section 3, Application Provider shall have no obligation: (i) to display, maintain or use the Feedback in any way; (ii) to keep Your Feedback confidential; and (iii) to notify You that Application Provider has resolved, used, licensed, sub-licensed, transferred, disclosed or otherwise used the Feedback.
If You do not agree with this Section 3, do not send us any Feedback.
4. APPLICATION CONTENT
This Licensed Application contains proprietary materials, including images, marks, links, texts, illustrations, pictures, designs, music clips, video clips, graphics, photographs, logos, page headers, buttons, icons, scripts, domain names, service names, and trade names, some of which may have been provided by one or more third parties (“Third Party Content”, and all materials collectively, “Application Content”). Such Application Content is provided “as-is” and You agree that Application Provider, or the creator/owner/licensor of the Third Party Content (the “Content Rightsholder”), is not responsible for examining, reviewing, evaluating or verifying the accuracy, validity or completeness of such content.
Objectionable Material: You acknowledge and agree that by using the Licensed Application, You may encounter Application Content that may be deemed offensive, indecent, violent, objectionable, or otherwise inappropriate, as judged by You or others. Nevertheless, You agree to use the Licensed Application at Your sole risk and that Application Provider or the Content Rightsholder shall have no liability to You for Application Content that may be found as such.
Content Rightsholder: You acknowledge and agree that Content Rightsholder and its Affiliates are third party beneficiaries of this Agreement, and that Your acceptance of this Agreement constitutes Your acceptance that Content Rightsholder and its subsidiaries will have the right to enforce the terms of this Agreement against You as a third party beneficiary thereof.
Survival: This Section 4 shall survive termination of this Agreement.
5. CONSENT TO USE OF DATA
You are prohibited from violating or attempting to violate the security of the Licensed Application, or engaging in any activity that interfere or attempt to interfere with the proper working of the Licensed Application, or any servers, network or equipments related to the provision of this Licensed Application.
Such activities may include, but are not limited to:
(a) modifying the Licensed Application in any manner or form, or using modified versions of the Licensed Application, including, without limitation, for the purpose of obtaining unauthorized access to the Licensed Application;
(b) testing, scanning, probing, or attempting to do the same, any vulnerability of the Licensed Application;
(c) interfering, or attempting to interfere, with the Licensed Application using any forms of attacks, such as Denial of Service attacks or submitting a virus;
(d) impersonating any person or entity, including but not limited to a person or entity affiliated with Application Provider, or falsely state or otherwise misrepresent Yourself, Your age or Your affiliation with any person or entity;
(e) using automated scripts to collect information, including any personal information, from the Licensed Application or for any other purpose;
(f) downloading any file that You know, or reasonably should know, cannot be legally obtained in such manner;
(g) interfering with or disrupting the Licensed Application, or any of Application Provider’s sites, servers, or networks, or disobeying any requirements, policies, or regulations of networks connected to the Licensed Application;
(h) forging headers or manipulating identifiers or other data in order to disguise the origin of any content transmitted through the Licensed Application or to manipulate Your presence on the Licensed Application;
(i) taking any action that imposes an unreasonably or disproportionately large load on Application Provider’s infrastructure;
(j) intentionally or unintentionally violating any applicable local, state, provincial, national or international law;
(k) uploading, transmitting, or otherwise making available any content that Application Provider deems to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable; and
(l) engaging in any other activities that Application Provider deems to violate, interfere, threaten, abuse or any way harm the Licensed Application, the users of this Licensed Application and the merchants associated with the Licensed Application.
Application Provider reserves the right to investigate any of Your activities at any time and for any reason to determine any violations.
ANY ATTEMPT TO DELIBERATELY DAMAGE THE SERVICE MAY BE A VIOLATION OF CRIMINAL AND/OR CIVIL LAWS. SHOULD SUCH AN ATTEMPT BE MADE, APPLICATION PROVIDER RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO CRIMINAL PROSECUTION.
8. OBJECTIONABLE CONTENT
You acknowledge and agree that by using the Licensed Application, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language or containing mature subject matter. Nevertheless, You agree to use the Licensed Application at Your sole risk and that Application Provider shall have no liability to You for content that may be found to be offensive, indecent, or objectionable.
9. TERMINATION AND MODIFICATION
The License is effective until terminated by You or Application Provider. Your rights under this License will terminate automatically without notice from the Application Provider if You fail to comply with any term(s) of this Agreement. Upon termination of the License, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application and any information downloaded or otherwise obtained from the Licensed Application, as well as any copies of such information.
Application Provider may in its sole discretion and at any time discontinue or modify the provision of the Licensed Application, or any part thereof, with or without notice. You agree that any termination of Your access to the Licensed Application under any provision of this Agreement may be effected without prior notice.
Upon termination of this Agreement, all provisions indicated herein as surviving termination of this Agreement shall remain in full force and effect.
10. PROPRIETARY RIGHTS
You acknowledge and agree that the Licensed Application contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Unless otherwise noted, Application Contents are subject to intellectual property rights, including, but not limited to, trade-marks and copyrights owned by or licensed to Application Provider or its Affiliates. Nothing in this Agreement shall be interpreted to confer to You any title or ownership to the Licensed Application or any intellectual property rights therein. Further, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of the Application Provider or its Affiliates. Unless expressly permitted in this Agreement, You may not modify, copy, capture, distribute, frame, reproduce, republish, download, display, post, transmit, or sell the Application Content in any form or by any means, in whole or in part, without prior written permission of the Application Provider. You agree not to use the Application Content in any manner that would infringe or violate the rights of any other party.
This Section 10 shall survive termination of this Agreement.
11. DISCLAIMER OF WARRANTIES
In this Section 11, the term “Application Provider” includes its Representatives, its Affiliates and its Affiliates’ Representatives.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE LICENSED APPLICATION WILL BE CORRECTED, OR THAT THE WEBSITE, SOFTWARE OR THE SERVER THAT MAKES THE LICENSED APPLICATION AVAILABLE AND/OR FUNCTION WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
APPLICATION PROVIDER ALSO DISCLAIMS ANY AND ALL RESPONSIBILITIES OR LIABILITIES FOR THE ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OR OPERABILITY OR AVAILABILITY OF INFORMATION OR MATERIAL DISPLAYED IN THE LICENSED APPLICATION. ALSO, APPLICATION PROVIDER DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. APPLICATION PROVIDER FURTHER DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL ON THE INTERNET THROUGH THE LICENSED APPLICATION.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE LICENSED APPLICATION AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
SOME STATES, PROVINCES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
This Section 11 shall survive termination of this Agreement.
12. LIMITATION OF LIABILITY
In this Section 12, the term “Application Provider” includes its Representatives, its Affiliates, and its Affiliates’ Representatives.
UNDER NO CIRCUMSTANCES, BUT TO THE EXTENT NOT PROHIBITED BY LAW, AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL APPLICATION PROVIDER AND CONTENT RIGHTSHOLDERS BE LIABLE TO YOU OR ANY USER OF THE LICENSED APPLICATION FOR ANY CLAIM ARISING OUT OF YOUR (OR ANY USER`S) USE OR MISUSE OF THE LICENSED APPLICATION, OR RELIANCE ON THE LICENSED APPLICATION FROM INABILITY TO USE THE LICENSED APPLICATION OR FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE LICENSED APPLICATION. SUCH LIMITATION OF LIABILITY FOR ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (EVEN IF APPLICATION PROVIDER OR CONTENT RIGHTSHOLDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
FURTHER, APPLICATION PROVIDER AND CONTENT RIGHTSHOLDERS SHALL NOT BE LIABLE FOR ANY ORAL OR WRITTEN INFORMATION OR ADVICE THAT MAY HAVE BEEN, OR DEEMED TO HAVE BEEN, PROVIDED THROUGH LICENSED APPLICATION OR BY ITS AUTHORIZED REPRESENTATIVE AND RELIED UPON BY YOU OR ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL APPLICATION PROVIDER AND CONTENT RIGHTSHOLDERS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOUR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.
IN NO EVENT SHALL APPLICATION PROVIDER’S AND CONTENT RIGHTSHOLDERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICATION LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
This Section 12 shall survive termination of this Agreement.
You agree to indemnify, defend and hold harmless Application Provider, its Representatives, its Affiliates, its Affiliates’ Representatives and Content Rightsholders from any damages, losses, costs and expenses (including legal fees), incurred in connection with any third party claim or demand alleging or based upon Your breach of this Agreement or Your violation of any law or the rights of such third party.
Application Provider reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You hereunder, and You shall cooperate fully as reasonably required by Application Provider.
This Section 13 shall survive termination of this Agreement.
14. GOVERNING LAW
This Agreement and Your use of the Licensed Application shall be governed and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein, excluding the application of any rule or principal of conflict of law that might otherwise refer construction, interpretation, or the resolution of any dispute to the laws of another jurisdiction. Where any dispute arises from this Agreement, including, without limitation, a breach of this Agreement, both parties agree not to bring any legal action against the other party in any jurisdiction except in the province of Ontario, in particular the courts located in Toronto, Ontario. With respect to matters that are exclusively the jurisdiction of the Federal Courts, both parties agree to adjudicate the matter in Toronto, Ontario.
This Section 14 shall survive termination of this Agreement.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Agreement will be effective only if in writing and signed by Application Provider. If any provision of this Agreement shall be deemed unlawful, invalid, or unenforceable by a court of law, then the impugned provision shall be deemed severed and shall not affect the validity and enforceability of any remaining provisions. Your use of the Licensed Application is not intended and shall not be deemed to create any agency, joint venture or other legal relationship of any kind between You and Application Provider other than that of independent contractors.
All notices required under this Agreement shall be given as follows: (a) in the case of notices to Application Provider, by e-mail to the following address to the attention of General Counsel: legal [at] flipp [dot] com, such notice shall be deemed effective the later of two (2) Business Days after sending such e-mail, or receipt of such e-mail by the General Counsel; and (b) in the case of notices to You, by email to the e-mail address that You provided to Application Provider prior to initiating the download of the Licensed Application, such notice deemed effective the earlier of one (1) day after sending such email, or receipt of such e-mail by You.
Last Updated: April 2, 2015