DIGITAL MAIN STREET
PLEASE REVIEW THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
1. Ownership and Copyright of Site
- 1.1. Ownership – Save and except for the access license granted pursuant to Article 2 (Access License), the content of the Site and the expression, organization, gathering, compilation, magnetic translation, digital conversion, electronic transmission thereof are protected under applicable law relating to copyrights, trademarks and other proprietary rights (including but not limited to intellectual property) and are strictly reserved in favour of TABIA. Except as permitted by Section 1.3 (User Content) below, the User does not acquire ownership rights to any content or document obtained through the Site
- 1.2. No Copying etc. – The copying, redistribution, use or publication by a User of any content or other part of the Site, except User Content (as defined in Section 1.3), is strictly prohibited.
- 1.3. User Content – Notwithstanding this Article 1 (Ownership and Copyright of Site), TABIA will not acquire any ownership, or proprietary rights in any form (including copyright, trademark or other intellectual property right), to any data, document or other information uploaded to the Site by the User when the User is using the Site in accordance with this Agreement (“User Content”). By allowing a User to upload User Content, use the Site’s connection or messaging features, or use any features on the Site, TABIA in no way waives any of its proprietary rights to the Site information and materials as contemplated in this Section 1.1 (Ownership) and 1.2 (No Copying etc.) above.
- 1.4. License in User Content – The User is deemed to grant TABIA a free, perpetual, non-exclusive, unrestricted, worldwide licence to:
- use, copy, adapt, publicly transmit, perform or display any such User Content,
- sub-licence any or all of these rights to third parties;
- exploit any proprietary rights that the User may have in such User Content for its own use so that any right, title or interest in any new content based on User Content shall vest in TABIA including (without restriction) any copyright, trademark or otherwise in any jurisdiction.
2. Access License
- 2.1. General Review – Without creating a login or password, the User may access the Site for the purpose of reviewing the profiles of suppliers, vendors and other organizations that participate in Digital Main Street, connect with those participants and purchase products or services from them.
- 2.2. Businesses – A User that is a business (as determined by TABIA based on criteria set up on the Site), who sets up an account on the Site, is hereby granted a non-exclusive non-transferable royalty-free license to access the Site for the purpose of:
- Creating a profile to enable the User to interact with other suppliers, vendors and other organizations that use the Site;
- Accessing such data, metrics, charts and graphs on the User’s electronic commerce activities as TABIA makes available on the Site;
- Accessing training and networking services provided by TABIA to users of the Site from time to time at any time, on such terms and conditions as TABIA may set out on the Site;
- Accessing any other upgrades, improvements or features that TABIA may include on the Site and make available to the User in the ordinary course of TABIA’s operation. TABIA explicitly reserves the right to add, amend or remove such other upgrades, improvements or features as it determines in its sole and absolute, but reasonably exercised, discretion
- 2.3. Vendors – A User that is a vendor (as determined by TABIA based on criteria set up on the Site), who sets up an account on the Site, is hereby granted a non-exclusive non-transferable royalty-free license to access the Site for the purpose of:
- Creating a profile to enable the User to interact with businesses that use the Site;
- Accessing such data, profile information, and product listings as TABIA makes available on the Site;
- Accessing training and networking services provided by TABIA to users of the Site from time to time at any time, on such terms and conditions as TABIA may set out on the Site;
- Accessing any other upgrades, improvements or features that TABIA may include on the Site and make available to the User in the ordinary course of TABIA’s operation. TABIA explicitly reserves the right to add, amend or remove such other upgrades, improvements or features as it determines in its sole and absolute, but reasonably exercised, discretion.
- 2.4. Age – By using the Site, you represent and warrant that you are the legal age of majority under applicable law to form a binding contract with TABIA and meet all of the foregoing eligibility requirements. Users who do not meet these requirements, may not access or use the Site.
3.General License Limitations
- 3.1. Account Password and Security – A User who sets up an account on the Site will be required to set up a login and password that is acceptable to TABIA. The User is entirely responsible for keeping account information confidential and are required to notify TABIA immediately in the event of any unauthorized use or other breach of security. An account login and password may only be used by a single User, or a single individual who represents the User where applicable, and are non-transferable without TABIA’s consent. A User may be liable, in accordance with Article 7 (Indemnification), for any losses incurred by TABIA as a result of failing to comply with this paragraph.
- 3.2. Account Changes – In addition to any other rights hereby reserved, TABIA reserves the right to allow users (including the User) to establish different kinds or categories of accounts for Site-access with different levels of security, safeguards and access depending on how TABIA structures the Site. TABIA also reserves the right to remove any existing category of accounts or change the nature, characteristics and rights associated with any of the existing accounts.
- 3.3. License Revocation – In addition to any other rights hereby reserved, where a User violates the terms of this Agreement, TABIA reserves the right to deny such User access to the Site, and revoke such User’s license by cancelling that User’s access account at any time.
In addition to any other disclaimer provided herein, TABIA in no way represents, warrants or guarantees that the Site will be available within any deadline or time period. Furthermore, for greater clarity, TABIA in no way assumes any obligation on the part of any User to provide access to the Site within any prescribed deadline, and hereby disclaims any liability for any User who fails to act for any reason because such User relied solely on the Site. IF THE SITE IS UNAVAILABLE IT IS THE USER’S SOLE RESPONSIBILITY TO ACCESS THE INFORMATION CONTAINED THEREIN BY SOME OTHER MEANS OR COMPLETE ANY TRANSACTIONS USING ALTERNATIVE METHODS.
5.Disclaimer and Limitation of Liability
- 5.1. Disclaimer – The content, pages, forms, documents, messaging platforms and other features of the Site are made available on an “as is” “where is” basis. All representations warranties, express or implied, are disclaimed including (without limiting the generality of the foregoing) any of the following:
- Accuracy – TABIA makes no representations or warranties about the accuracy of the information contained in any profiles set up on the Site by any person or organization that operates a business. It is the User’s sole responsibility verify any information it receives about any person or organization on the Site;
- Endorsements – TABIA makes the Site available solely as a directory of businesses. TABIA is not recommending or endorsing any product or service set out on the Site, and hereby disclaims all liability in connection therewith. Any ratings or reviews attesting to the merit of any product or service on the Site is for information purposes only and is not to be construed as a recommendation or endorsement by TABIA;
- Professional Advice – Nothing on the Site should be construed as legal, accounting or other professional advice. The information on the Site is for training and educational purposes only. Where the User requires professional advice in connection with any matter on the Site, the User is encouraged to hire a lawyer, accountant or other professional;
- Fitness – TABIA makes no representation or warranty as to merchantability for any product or service on the Site, or the fitness of any product or service on the Site for a particular purpose.
The User assumes all responsibilities and obligations with respect to any decision to upload or download content from the Site, or when deciding to select and/or rely on any other document or any other Site material, to achieve the User’s intended result.
- 5.2. Particular Situations – The information within the Site, or available through the Site, may not be appropriate under the circumstances for any particular transaction and does not substitute for appropriate professional advice. The specifics of a given situation may require provisions not contemplated in the documents or content of the Site. No representations, warranties or guarantees whatsoever are made as to the accuracy, currency, completeness, adequacy, reliability, suitability, quality or applicability of any information contained herein, including any information uploaded by a User for use in a particular situation.
- 5.3. Site Accessibility and Viruses – The Site may be unavailable or inaccessible from time to time, at any time, due to routine maintenance, errors, problems or other unforeseeable causes. Moreover, the information on the Site may contain bugs, errors, problems or other limitations. All responsibility or liability for any damages caused by viruses contained within the electronic file containing the form or document is hereby disclaimed.
- 5.4. Servers in Foreign Jurisdictions – The User hereby acknowledges that TABIA may host the Site but, in so doing, may utilize servers and hosting services based outside of Ontario or Canada. Any documents or materials uploaded to, or downloaded from, the Site may be stored in servers located in, and subject to, the laws of a foreign jurisdiction. Such laws can include (without limiting the generality of foregoing) criminal and administrative legal requirements relating to investigation, search and seizure. Additionally, any information stored on servers located in the United States of America may be subject to search and seizure by United States Federal authorities under the U.S.A Patriot Act and other laws of the United States relating to national security. TABIA hereby disclaims any and all liability with respect to the enforcement of foreign laws, including the Patriot Act.
- 5.5. Limitation of Liability – TABIA and its, shareholders, directors, officers, employees and affiliates have no liability whatsoever for a User’s reliance on the Site or use of any information contained on the Site. In particular, but not as a limitation thereof, TABIA and its affiliates are not liable for any INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING NEGLIGENCE ARISING FROM PRODUCT LIABILITY AND NEGLIGENT MISREPRESENTATION), ANY LEGAL COSTS ARISING THEREFROM, OR ANY OTHER COSTS OR EXPENSES ARISING OTHERWISE. Even if advised of the possibility of such damages, the disclaimer of liability for damages set forth above is a fundamental element of this Agreement for the use of the Site. This Site and the information contained herein would not be provided without such limitations. The User’s sole remedies in respect of any damages suffered as a result of their use of the Site shall to immediately discontinue his or her use of it, and recover from TABIA damages equal to, and not any greater than, $500.00 CAD. However, TABIA explicitly reserves the right to set-off such damages against any amounts that the User owes to TABIA.
6.Payment of Access Fees (Where Applicable)
If applicable, the User shall pay any fees required by TABIA for access to the Site as TABIA may post on the Site from time to time, including any fees charged on a “per download”, “per upload” or “per access” basis. TABIA may require that such fees are to be paid by credit card, PayPal or other electronic payment mechanism prior to the User accessing or using the Site. Alternatively, TABIA may allow the User to access the Site and send him/her/it an invoice at a later date. Any such invoice shall be paid strictly in accordance with the payments terms therein. If no payment terms are contained in said invoice, then the User shall pay within thirty (30) days of receipt, and interest shall accrue on any unpaid invoices at a rate of 10% per annum, calculated daily without deduction or set-off.
User agrees to indemnify, save and hold TABIA and its directors, officers, employees, partners, and affiliates harmless from any liability for expenses, losses, costs (including any legal fees on a substantial indemnity basis) as a result of any damages arising out of any demand, claim, action, cause of action, mediation, arbitration or other legal proceeding against TABIA that occurs as a result of accessing or using the Site and/or the User violating this Agreement, including (without restricting the generality of the foregoing) any claims brought against TABIA by any third person not party to the Agreement where such claims is brought in connection with the User’s use of the Site.
- 8.1. Prohibited Material – In uploading any materials or content or sending any requests with the Site, the User shall not, under any circumstances, supply, upload or send messages that:
- are unlawful, harmful, threatening, abusive, harassing, defamatory (either libellous or slanderous), invasive of another's privacy, pornographic, or is harmful to minors in any way;
- is false, deceptive or misleading;
- infringes any patent, trademark, copyright, industrial design, or other form of intellectual property right of TABIA or any other person;
- contains personal information except as permitted by the Personal Information Protection and Electronic Documents Act (Canada);
- constitutes unsolicited e-mail, junk mail, spam, or any form of advertising or solicitation for commercial purposes;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- is designed to disrupt the ability of other Users to use the Site or makes disproportionately high use of network resources or infrastructure, or otherwise negatively affect the ability of others to use the Site;
- is in violation of any Canadian or Ontario law, including any statute, regulation, or common law requirement (including such requirements in law and equity);
- constitutes content or material that is deemed prohibited by TABIA in its sole and absolute, but reasonably exercised, discretion.
- 8.2. Moving, Deleting or Editing Documents – The User acknowledges that TABIA shall have the right (but not the obligation), in its sole and absolute discretion, to edit, delete or move any documents uploaded to the Site at any time. The User understands that all documents on, transmitted through, or linked from the Site, are the sole responsibility of the person from whom such documents originated and TABIA shall not be liable for any damages arising from such documents as contemplated by Article 5 (Disclaimer and Limitation of Liability).
- 9.1. Hacking, etc. – Users shall not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any TABIA server, or to any of the services offered on or through the Site including those of TABIA’s affiliates or subsidiaries by hacking, password “mining” or any other illegitimate means.
- 9.2. Monitoring and Circumventing Site – Users shall not use any “deep-link”, “page-scrape”, “robot”, “spider”, “agent” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. TABIA reserves the right to bar any such activity.
- 9.3. Probing, etc. – Users shall not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. Users will not reverse look-up, trace or seek to trace any information on any other User of or visitor to the Site, or any other customer of TABIA, including any TABIA account not owned by the User, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than the User’s own information, as provided for by the Site.
- 9.4. Overloading Site – The User will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure (including the bandwidth capacity) of the Site or TABIA’s systems or networks, or any systems or networks connected to the Site or to TABIA.
- 9.5. Interference – Users shall not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.
- 9.6. Harassing and Stalking – User also hereby agrees that they shall not use the Site to:
- contact anyone against their will or “stalk” or otherwise harass anyone in any manner;
- collect personal data about anyone for commercial purposes unrelated to the purpose set out in Article 2 (Access License) if any, or for unlawful purposes.
- 9.7. Disguising Messages and Identity – Users shall not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal the User sends to TABIA or another User on or through the Site, or disguise the origin of any service offered on or through the Site. No User may impersonate any other individual or entity, and no User may fraudulently hold him/herself out as representing another person or entity.
- 9.8. Unlawful Activity – Users shall not use the Site or any content or other document therein for any purpose that is contrary any statute, regulation, by-law, rule, common law principal (whether in law or equity) or other requirement of Ontario law or the laws of Canada, or any purpose prohibited by this Agreement, or to solicit the performance of any such illegal activity or other activity which infringes the rights of TABIA or others.
- 9.9. Code of Conduct – In addition to the requirements set out in this Article 9 (Prohibited Activity), the User also agrees to comply with any codes of conduct or other rules that TABIA may set out on the Site at any time from time to time.
11.Links to Other Sites
- 11.1. Links to Merchant Sites – The User acknowledges that, as an inherent part of Digital Main Street’s operational model, TABIA is providing links on the Site that allow access to third party merchant (“Merchants”) sites from which the User may obtain information and possibly purchase certain goods or services. The User understands that when using those links to visit a site operated by Merchants:
- neither TABIA nor its affiliates operates or control the products or services offered by Merchants, and such Merchants are responsible for all aspects of order processing, fulfillment, billing and customer service;
- neither TABIA nor its affiliates is or will be a party to the transactions entered into between Users and Merchants;
- information about and purchase and use of the products or services offered by the Merchants is at the sole risk of User and is without warranties of any kind by TABIA, express, implied or otherwise including warranties of title, fitness for purpose, merchantability or non-infringement;
- all rules, policies (including privacy policies) and operating procedures of Merchants will apply to Users while on the Merchants’ sites. TABIA is not responsible for information provided by Users to Merchants. Merchant and TABIA are independent contractors and neither party has authority to make any representations or commitments on behalf of the other;
- Under no circumstances is TABIA or its affiliates liable for any damages arising from the transactions between Users and Merchants or for any information appearing on merchant sites or any other site linked to the Site. As contemplated in Article 5 (Disclaimer and Limitation of Liability), TABIA will not be liable to Users for any incidental, special or consequential damages of any kind that may result from access to merchant sites or the use of any products or services offered by merchants.
- 11.2. Links to Other Sites – This Site may contain links to other websites other than Merchant Sites. TABIA is not responsible for the content, accuracy, or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by TABIA. Inclusion of any linked website does not imply approval or endorsement of the linked website by TABIA. If a User decides to leave Site and access these third party sites, he/she does so at his/her own risk.
12.Governing Law and Jurisdictional Issues
- 12.1. Governing Law – This Agreement shall be treated as though it were executed and performed in Toronto, Ontario, Canada and governed by the laws of Ontario and the laws of Canada as may be applicable herein.
- 12.2. Forum – All disputes, controversies or claims arising out of in connection with or in relation to this Agreement, including any question regarding its existence or validity shall be submitted to and be subject to the jurisdiction of the courts of the Province of Ontario (including the Supreme Court of Canada), which shall have exclusive jurisdiction in the event of any dispute hereunder. The parties hereby irrevocably submit and attorn to the exclusive jurisdiction of such courts to finally adjudicate or determine any suit, action, or proceedings arising out of or in connection with this Agreement.
- 12.3. Judicial District – TABIA reserves the right to select the judicial district in Ontario where any disputes, controversies, claims shall be adjudicated by way of notice in writing to the User. The notice shall contain such language and be in such form as TABIA determines (including any postings on the Site). Where TABIA does not send such notice, the judicial district shall be deemed to be the City of Toronto.
- 12.4. Compliance with Ontario Law – In using the Site, the User hereby agrees to comply with all legislation, regulations, common law requirements (including such requirements in law and equity) as may be applicable and in force pursuant to the laws of Ontario and Canada. Any monies payable pursuant to the terms hereof shall be in Canadian currency.
- 12.5. Actions Subject To Disclaimer – All actions, applications and other legal proceedings shall be subject to the disclaimers and limitations set forth in Article 5 (Disclaimer and Limitation of Liability).
- 12.6. Severability and Waiver – Should any part of this Agreement be held invalid, unenforceable or inconsistent with the law applicable to this Agreement, that portion shall be severed from this Agreement and the remaining portions shall remain in full force and effect. Failure of TABIA to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
- 12.7. Users Outside Ontario – This site is controlled and operated by TABIA from its offices within the Province of Ontario. TABIA makes no representation that documents, or other materials from the Site are appropriate or available for use outside of Ontario. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
13.Interpretation of Agreement
- 13.1. Entire Agreement – This Agreement constitutes the entire and only agreement between TABIA and a User, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.
- 13.2. Electronic Form – The electronic form of this Agreement presented to the User when they access the Site shall be the sole true and correct version. TABIA hereby reserves the right to update and amend this Agreement from time to time. TABIA will post the latest version of this Agreement on the Site in electronic form.
- 13.3. Assignment – TABIA may assign its rights and obligations under this Agreement to any person without notice to the User. No part of this Agreement may be assigned by the User without TABIA’s written consent.
- 13.4. Independent Contractor – Each of the parties acknowledge and agree that the relationship created hereby is one of independent contractors and no other, including without limiting the generality of the foregoing, that of partnership or employment. None of the parties shall have the authority to bind the other parties to any contractual or other legal obligations, whether as agent, partner, employee, representative, authorized signing officer or otherwise. None of the parties shall hold themselves out as being an agent, employee or other representative of the other party so as to make said other party vicariously liable for any tort against any other person.