Last Revised: December 19, 2017
You may contact DES by e-mail at firstname.lastname@example.org with questions about these TOU.
THESE TOU CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, disclaimers regarding Content and Functionalities, and LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU.
THESE TOU ARE effective through YOUR ACCESS TO OR use of THE Website (E.G. BY USING OR BROWSING).
IF YOU DO NOT AGREE TO BE BOUND BY ANY PART OF THESE TOU, YOU MUST NOT USE THE WEBSITE AND MUST CEASE ANY USE OF THE WEBSITE IMMEDIATELY.
Content and Functionalities: any Content and Functionalities available on the Website or used to create and operate the Website, as well as the selection and arrangement of such Content and Functionalities, including, without limitation, any DES blog posts, text, information, materials, data, video, graphics, pictures, music, logos, marks, designs, software, hyperlinks, URLs, and other types of content, as well as any platforms, software, digital services, tools, features and functionalities made available on or through the Website.
User: means any user of the Website.
1. YOUR AGE AND ELIGIBILITY TO USE THE WEBSITE
• Children under 13 years of age may not use the Website.
• Children under 18 years of age but older than 13 years of age may use the Website, subject to the below paragraph.
3. LIMITED USE; RESERVATION OF RIGHTS
• Subject to the terms and conditions of this Agreement, You may use the Website only for your personal use and only in accordance with this Agreement. You may print copies of any portion of the Website only for your own personal use.
• DES expressly reserves all rights not expressly granted in these TOU.
4. ACCEPTABLE USE; COMPLIANCE WITH LAWS
• You represent, warrant and covenant to DES that you will abide by and not violate the Acceptable Use Policy, which can be found at Appendix A below.
• If You breach the Acceptable Use Policy, or any other provision of these TOU, DES may take whatever steps it deems necessary to protect the Website, DES, DES’s business, DES’s and its supplier’s infrastructure.
• You agree that You are solely responsible for compliance with any and all laws, rules, and regulations that may apply to Your use of the Website.
• If You submit ideas, suggestions, commentary or feedback to DES regarding the Website (or any other product or service offered by DES) (collectively, "Feedback"), through any means whatsoever, then You agree that DES may use the Feedback freely and for any purpose.
• You represent, warrant and covenant to DES that Your Feedback will not violate the Acceptable Use Policy, which can be found at Appendix A below.
• You hereby grant DES a worldwide, perpetual, irrevocable, transferrable, sublicenseable, royalty-free, non-exclusive right and license to use any of Your Feedback in the manner in and for the purposes for which the Website and DES from time to time use Feedback, including, without limitation, for providing services and for developing and improving the Website, without any obligation to You or third parties. DES is under no obligation to provide You with any credit, notice, approval or compensation for any such use.
• You waive any and all of Your moral rights in the Feedback.
• DES does not endorse any Feedback.
6. USE IS AT YOUR SOLE RISK; DISCLAIMERS
• USE OF THE WEBSITE AND CONTENT IS SOLELY AT YOUR OWN RISK.
• THE WEBSITE AND CONTENT ARE MADE AVAILABLE AND PROVIDED "AS IS" WITH NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND.
• NO advice or information, whether ORAL OR WRITTEN, GIVEN BY DES or obtained from or accessed on the website WILL CREATE ANY REPRESENTATION, WARRANTY OR CONDITION.
• TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DES HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS IN RESPECT OF THE WEBSITE, CONTENT, AND YOUR CONTENT, WHETHER STATUTORY, COLLATERAL, IMPLIED, EXPRESS OR ARISING THROUGH A COURSE OF DEALING OR TRADE, INCLUDING ANY WARRANTY OR CONDITION OF completeness, currency, TIMELINESS, truthfulness, accuracy, reliability, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, MERCHANTABILITY, MERCHANTABLE QUALITY, QUIET ENJOYMENT, AVAILABILITY, ACCESSIBILITY, SECURITY, UNINTERRUPTED USE, NON-INFRINGEMENT, OR THAT THE WEBSITE CONTENT ARE OR WILL BE ERROR-FREE OR VIRUS-FREE.
7. EXCLUSIONS OF LIABILITY
• DES’s LIABILITY WITH RESPECT TO THIS AGREEMENT IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
• DES WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES (INCLUDING DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER TYPES OF DAMAGES) OR FOR ANY LOSSES (INCLUDING LOSS OF SAVINGS, PROFITS, REVENUES, DATA, CONTENT, BUSINESS OR GOODWILL, in alL cases, whether direct, indirect, special, incidental or consequential) WHATSOEVER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.
• THIS SECTION “EXCLUSIONS OF LIABILITY” WILL APPLY TO ALL CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FUNDAMENTAL BREACH, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND EVEN IF DES HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES, OR IF ANY REMEDY YOU HAVE FAILS OF ITS ESSENTIAL PURPOSE, AND WILL APPLY WHETHER OR NOT ANY DAMAGES COULD HAVE BEEN FORESEEN OR PREVENTED.
8. INTELLECTUAL PROPERTY OWNERSHIP
• Except for the rights granted to You expressly herein, as between DES and You, DES reserves all right, title and interest (including all intellectual property rights) in and to the Website and any Content and Functionalities.
• You do not and will not acquire any rights or licenses in any copyrights, trademarks, patents or other intellectual property on or in the Website or Content and Functionalities.
• The Website and Content and Functionalities are: (i) protected by copyright, both individually and as a collective work or compilation, and by trademark law, patent law and any other applicable laws; and (ii) not Your property, but the property of their respective owners, whether DES or otherwise.
• All trademarks and other indicia of origin appearing on or in the Website or Content and Functionalities are the property of DES or DES’s service providers, suppliers or licensors, or the trademark’s property owners, unless otherwise indicated. You may not use any trademark or other indicia of origin appearing on on or in the Website or Content and Functionalities.
• DES, or owners of any other intellectual property rights, may enforce its or their intellectual property rights to the fullest extent permitted by law, including against You personally.
• DES is not responsible for information on any third party website or service that is referred in, or accessible or connected by hyperlink to, the Website. If You access any third party website or service through the Website, then You do so at Your own risk. Hyperlinks do not constitute third party endorsement of, sponsorship or endorsement by, or affiliation with, DES.
10. UPDATES; TOU AMENDMENTS
• DES may, in DES’s sole discretion, release fixes, patches or updated versions of the Website or otherwise add or remove Content and Functionalities or features (including modifications to the features, availability or functionality of the Website and/or Content and Functionalities or any part of any of the foregoing) at any time without notice (each, an “Update”). Upon release, each Update will be deemed to become part of the Website and will be subject to the terms and conditions of these TOU.
• DES may amend these TOU, or any provision thereof, with immediate effect at any time and without notice. Your use of the Website following any such amendment (including those implemented as part of the release of an Update) will constitute Your agreement to the terms and conditions of these TOU in effect at the time of such use.
11. TERMINATION; SUSPENSION AND AFTER TERMINATION
• DES reserves the right to suspend or terminate the Website, or Your use of all or any portion of the Website at any time and for any reason, in DES’s sole discretion. DES has no obligation to provide you with any notice of your breach of these TOU, but DES may choose to provide notice, and an opportunity to cure such breach, in DES’s sole discretion should we so choose.
• The terms and conditions in these TOU will continue to apply to Your past use of the Website, in the form in which it or they then-existed at the time of the subject use. Furthermore, termination, rejection and/or suspension shall not relieve You of any obligations arising or accruing prior to such termination, rejection or suspension, or otherwise limit any liability that You otherwise may have to DES.
• DES does not have an obligation to delete or return to You any of Your Feedback.
• Upon termination of these TOU, any provision hereof that by its nature is intended to survive the termination of these TOU will survive such termination.
• You agree to indemnify, defend and hold harmless DES and its affiliates, and their shareholders, directors, officers, employees, agents, and third party sources from and against any and all suits, losses, claims, demands, liabilities, damages, costs and expenses (including reasonable lawyers' fees) that arise from or relate to Your breach of these TOU, or Your Use of the Website or any Content and Functionalities. • DES has the right but not the obligation to participate in any defense or settlement.
• If DES chooses to participate, then each party must pay for its own lawyers' fees.
13. INDEPENDENT CONTRACTORS
For all purposes, DES and You are independent contractors and neither of us will represent that we have authority to assume or create obligations on behalf of the other party.
14. APPLICABLE LAW & VENUE
All matters relating to these TOU will be governed by the statutes and laws of the Province of Ontario or the federal laws of Canada applicable therein, as applicable, without regard to the conflicts of laws principles thereof. You and DES also agree and hereby submit to the exclusive personal jurisdiction and venue of the courts of the Province of Ontario or the federal courts of Canada, as applicable, located within the City of Toronto, with respect to any and all matters arising in connection with these TOU. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these TOU.
DES may assign or transfer these TOU in whole or in part at any time without Your consent. You may not assign these TOU or assign, transfer or delegate Your Account or any of Your rights or obligations under these TOU. Any purported assignment, transfer or delegation in violation of this provision is void from the outset.
16. WAIVER OF CLASS ACTIONS
To the fullest extent permitted by applicable law, all parties to any action arising out of or in connection with the Website or these TOU must be individually named. You hereby waive any right you may have for any dispute pertaining to the Website or these TOU to be arbitrated or litigated on a class action or consolidated basis, or on bases involving disputes brought in a purported representative capacity on behalf of the general public.
17. SEVERABILITY; ENTIRE AGREEMENT; WAIVER
If any provision of these TOU are found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of these TOU shall remain in full force and effect. These TOU constitutes the entire understanding, and supersedes all other understandings, between You and DES concerning the subject matter hereof. No waiver of a right of a party under these TOU will be effective unless it is in writing and signed by the party waiving its right. A waiver of a right by a party (or failure by a party to enforce a provision of these TOU) will be effective only in the specific instance and for the specific purpose for which it is provided. No waiver will be deemed a waiver of any prior or subsequent default hereunder.
Headings are inserted for convenience of reference only and will not affect the construction or interpretation of the Agreement. Where the word “including” or “includes” is used herein, it means “including without limitation” or “includes without limitation”, respectively. The language used in these TOU are the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
19. LANGUAGE OF THIS AGREEMENT
It is the express wish of the parties that these TOU and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
APPENDIX A – ACCEPTABLE USE POLICY
• YOU MAY NOT do, or attempt to do, any of the following in connection with any of the Website:
o use DES’s name, any DES trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without DES’s express written consent;
o violate, remove, modify or obscure any copyright notices, trademark notices, or other proprietary notices or legends that are on or in any of the Website;
o use the Website for anything other than Your own personal purposes;
o use the Website for any purpose that is illegal or fraudulent;
o exploit, use, make available, rent, lend, sell, frame, mirror, perform, display, broadcast, publish, exhibit, transmit, distribute, license, modify, delete, copy, download, post, create adaptations or derivative works of any of the Website;
o operate a server in connection with the Website;
o take any action that imposes, or may impose (in DES’s discretion) an unreasonable or disproportionately large load on, or otherwise disrupts, restricts, inhibits or impedes DES’s or the Website’ infrastructure;
o interfere or attempt to interfere with the proper working of, or any activities conducted on or in the Website;
o forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content and Functionalities;
o replicate the “look and feel” of the Website;
o use any of the Website to build a product or service which competes the Website;
o decompose, decompile, reverse engineer, disassemble, or otherwise attempt to gain access to the source code of the Website;
o upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter any computer, communication network, device, data, or the Website, or any other system, device or property;
o violate, or attempt to violate, the security of the Website in any way through any means or device; or o systematically retrieve data or other content from the Website to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.
• NONE OF Your Feedback WILL (i) infringe, misappropriate or violate any third party’s patent, copyright, trademark, trade secret, moral right or other intellectual property or proprietary right, or right of publicity, privacy or confidentiality; (ii) violate, or encourages any conduct that would violate, any applicable law, rule or regulation or would give rise to civil or statutory liability; (iii) promote or contain illegal or harmful activities or substances, such as hazardous substances; (iv) be fraudulent, false, misleading or deceptive; (v) be defamatory, libelous, obscene, pornographic, vulgar or offensive; (vi) be violent or threatening or promote discrimination, bigotry, racism, hatred, abuse, offense, violence, harassment or harm against any individual or actions that are any of the foregoing; or contain notices (commercial or otherwise) or chain letters.