Red Cloud Klondike Strike Inc. (“Klondike Strike”) TERMS AND CONDITIONS
February 29, 2016
1. ACCEPTANCE: Your creating a User account, logging on or accessing the System, whether or not your access includes viewing or using material, making changes to records, creating new records or uploading or downloading material or information, constitutes your acceptance of, and is conditional upon your acceptance of and strict compliance with the provisions, terms and conditions of this Agreement, which constitutes an agreement between you and Klondike Strike. This Agreement may change from time to time and you accept responsibility to check for any such changes, which will be available on the System. Your use and/or access of the System and/or Data after such notice will constitute your agreement to the amended Agreement. Notwithstanding the fact that you may be employed with or contracted to a company or other entity, you confirm by checking “I accept the terms in the Terms and Conditions” that you are personally bound by this Agreement. If you do not accept the foregoing and this Agreement, you will not be granted access to the System.
2. DEFINITIONS: The following terms shall have the following meanings in this Agreement:
(a) “Account Information” means the user account and private password information provided to you for use in connection with access to and use of the System and the Data, and shall include any supplementary or substitute password issued by Klondike Strike to you or on your behalf.
(b) “Company” means, as applicable, the entity or organization on whose behalf you are accessing the System.
(c) “Data” means and shall include, without limitation, Company’s records, documents, (including without limitation scanned and/or digitized documents) communications, data, text, statements, comments, correspondence, requests, responses, discussions, images, files, records, evidence of any sort, and any other materials that are, or are able to be perceived, downloaded, uploaded, authored, created, published, modified, edited, distributed or deleted via the System, regardless of computing device or software used, and whether or not with respect to or originating from you, or Company, or your employer or entity to which you are contracted, or otherwise.
(d) “System” means the proprietary and confidential Klondike Strike corporate system and application provider solution providing access to the Klondike Strike services and software and/or other software applications in order to permit a User authorized access via the Internet to the System and to access, process, use and deal with the Data, subject to any restrictions imposed on a User by Company. The “System” also includes Klondike Strike’s proprietary SingleSignOnService, which offers you the possibility, after a oneoff registration on the System, to log into 3rd party partner systems without having to create a new account, provide account opening information or go through the same registration process every time.
(e) “User” means any individual, person or entity (including any parents, subsidiaries or affiliates, as well as their heirs, executors, administrators, trustees and authorized assignees) authorized to access or use the System, including but not limited to you, conditional on your accepting this Agreement and conducting yourself in accordance with the terms and conditions contained herein.
3. REGISTRATION AND USER ACCOUNT: For the use of the SingleSignOnService, you must register and create a User account. Registration as a User is only allowed if you are at least the age of majority in the jurisdiction in which you reside. You can set up only one (1) User account. You must provide correct and complete information in order to register for the SingleSignOnService. The Account Information is intended solely for personal use by you and therefore always to be kept secret and safe. You must inform Klondike Strike immediately on becoming aware of and/or suspecting a case of any unauthorized use, disclosure and/or misuse of your Account Information.
4. ACCESS TO THE SYSTEM: You are granted a limited, personal, revocable and nonexclusive license and permission to access the System, and to access the Data subject to the provisions of this Agreement. Access to the System is a privilege and not a right and the license and permission granted by Klondike Strike may be terminated at any time without notice by Klondike Strike in its sole discretion with no liability to you whatsoever. Any use of the System not expressly permitted in this Agreement or otherwise by Klondike Strike is prohibited and will be unlawful.
5. MONITORING AND PRIVACY:
(b) You warrant and represent that you will not use the System to upload, send or receive personal information about any individual, including any personal information of another User, other than as permitted by applicable privacy laws and that you will adhere to all the terms and conditions of this Agreement
6. ACCEPTABLE USE: You agree and undertake to always conduct yourself in a reasonable, courteous and professional manner in accessing and/or using the System, having regard to the focused and limited commercial purposes of the System and the purposes for access thereto being granted to you. Without restricting the generality of the foregoing, you expressly agree as follows with respect to your use of the System:
(a) You will comply with all requirements, rules and regulations published or stated by Klondike Strike from time to time with respect to the System;
(b) You will promptly respond to requests from Klondike Strike for further information or verifications;
(c) You will comply with and observe all international, federal, provincial, state and local laws and regulations and other laws of applicable governmental authorities relating to your access to and/or use of the System;
(d) You will not engage in any direct or indirect activity which in Klondike Strike’s opinion is likely to or is designed to interfere, or may interfere, with the proper operation of the System, or is likely to or is designed to expose, or may expose, Klondike Strike to prosecution or to legal action of any kind and in any jurisdiction by any third party and/or User;
(e) You will not upload or transmit in any manner any material that constitutes, comprises or contains, in whole or in part, obscene, violent, pornographic, adult, illegal, unlawful, tortious, offensive, racist, sexist, humiliating (or tending to hold or holding to ridicule), or discriminatory material or content, or that constitutes hate literature, or that unlawfully discriminates against or contributes to unlawful discrimination against any individual or person, or that advocates and/or threatens terrorism or violence;
(f) You will not slander, libel or defame the character of any person or individual, whether directly or indirectly, nor contribute to or republish or distribute such defamation;
(g) You will not infringe the intellectual property rights or industrial property rights of any User, third party, or of Klondike Strike;
(h) You will not disclose your Account Information to anyone other than authorized individuals within your organization or Klondike Strike and you will not permit any individual to log in as you, or impersonate you;
(i) You will not transmit or send bulk unsolicited commercial email or “spam” to any User or to anyone via the System or in connection with the System;
(j) You will not engage in hacking, cracking, or any other kind of malicious conduct with respect to the System or the Data;
(k) You will not knowingly, recklessly or carelessly transmit, send or upload any virus, Trojan horse, spyware, malware or other malicious or harmful software or code and you will take commercially reasonable steps, including the use of regularly updated antivirus and antispyware software and similar technological measures to avoid doing any of the foregoing;
(l) You will not decompile, reverse engineer or disassemble the System or any software on or related to the System, and you will not attempt to do any of the foregoing, nor will you counsel, authorize or assist any other person or individual to do so;
(m) You will not attempt to learn or discover the Account Information of any other individual or User, whether by technological means, trickery, fraud, deception or otherwise; and
(n) You will not tamper with or wrongfully intercept, or attempt to tamper with or wrongfully intercept, the communications, email or messages of any other User, nor will you use any technique or technology to disguise the source of an email, communication or message or to “spoof” or otherwise make any email, communication or message appear to originate from any source other than you, or your organization or Internet Service Provider.
8. ORDERS: Any payments made by any credit card are subject to the approval of the financial institution that has issued the credit card.
9. REPRESENTATIONS AND WARRANTIES: In addition to, and not in substitution for any warranties or representations contained in any other agreement between you and Klondike Strike, you represent and warrant to Klondike Strike as follows:
(a) You have full legal capacity to enter into this Agreement and by doing so you will not be in breach of any agreement with, nor in breach of any legal duty to any third party or other User;
(b) Any and all materials transmitted or uploaded by you will comply with this Agreement;
(c) Any and all materials or messages transmitted or uploaded by you will not infringe the intellectual property or industrial property rights of any third party or User, including without limitation copyrights, moral rights, trademarks and patent rights, nor will such materials or messages constitute wrongful disclosure or misappropriation of confidential information, proprietary information or trade secrets of any third party or User; and
(d) You will comply in all respects with the provisions of this Agreement, including without limitation the provisions set forth herein regarding Acceptable Use.
10. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS:
(a) Klondike Strike and/or its licensors are and shall remain the owner of the System. You do not own the System.
(b)You acknowledge and agree that the System is proprietary, unique and valuable to Klondike Strike, and that the infrastructure platform, portal, arrangement, architecture, workflows, selection, design, improvements, modifications and enhancements related to the System and its features are protected by Canadian and international intellectual property rights, industrial property rights and treaties, including without limitation, copyright, trademarks and other proprietary rights.
11. DISCLAIMERS AND LIMITATIONS: by accepting or entering into this agreement, and/or by using or attempting to access and/or use the system, you expressly acknowledge and agree to the following:
(a) the system and the data are provided strictly on an “as is, where is” and “as available” basis. Klondike strike does not own and has no control over the nature or contents of the data.
(b) klondike strike disclaims any and all warranties or conditions, whether express, implied, or statutory, or arising from a course or custom of usage or trade, including, but not limited to, any warranty or condition of merchantability or fitness for a particular purpose or compliance with any description with respect to the system and/or the data.
(c) klondike strike makes no warranties, guarantees, conditions or representations regarding the system or the data, or that the system or the data will be available without errors, omissions or defects, or that errors, omissions or defects will be corrected, or that the system and the server or servers on which it is hosted will be free of viruses or other harmful content, or that the system will not infringe third party intellectual property rights or misappropriate third party confidential information or trade secrets.
(d) you acknowledge and agree that the system is software and computer based, that there is no such thing as error free systems or software, and that the data originates from and is subject to revision by many authors and sources not under the control of klondike strike. You therefore agree that the disclaimers and limitations set forth herein are reasonable and freely accepted.
(e) as a convenience to users of the system, and although it accepts no obligation to do so, klondike strike may, in its sole discretion, include links to other systems, computers, servers, web sites or resources under the control of third parties (“third party resources”) and over which you acknowledge and agree klondike strike has no control. Klondike strike provides no endorsement, warranty or representation of any kind regarding the products, services, content, accuracy or appropriateness of content of, or accessible through, such third party resources, or with respect to the data, and you use such third party resources and the data solely and entirely at your own risk and hereby irrevocably waive any claim against klondike strike with respect to such web sites or the data.
(f) except as specifically stated in this agreement, none of klondike strike or any of its affiliates, shareholders, directors, officers, agents, employees or other representatives will be liable for any damages, costs or loss whatsoever arising out of or in connection with the use or misuse of, or any defects, inaccuracies, errors or omissions in or to, the system, the data, or any linked third party resource, whether direct, indirect, consequential, compensatory, special, exemplary, punitive or otherwise, including, without limitation, damages for loss of profits, cost of procurement of substitute goods or services, loss of programs, applications, information or data, failure to realize expected revenues, profits, or savings, loss of or damage to property of any kind, harm to business, or any other economic or pecuniary loss of any kind, whether arising out tort, contract, breach of duty or otherwise, and without regard to form of action. The foregoing provisions shall all apply even if klondike strike has been advised by you or anyone else of the possibility of any loss or damage.
(g) in any jurisdiction where exclusion or limitation of liability for any time of damages is prohibited, klondike strike’s liability is limited to the maximum extent allowed by that jurisdiction.
(h) this agreement provides a license and access to certain content and is not a sale of goods.
12. LIMITATION OF LIABILITY: without derogating from any other limitation of liability contained in this agreement, you agree that the aggregate of all liability on the part of klondike strike for breach of any warranty, guarantee, term or condition contained in this agreement, whether express or implied herein, or of any other provision of this agreement or of any agreement contemplated by this agreement or any other breach giving rise to liability, including a breach of a condition or fundamental term or fundamental breach or breaches or in any other way arising out of or related to this agreement or any agreement contemplated by this agreement, for any and all causes of action whatsoever and, regardless of the form of action (including breach of contract, breach of duty, strict liability or tort, including but not limited to negligence, or any other legal or equitable theory), shall be limited to a maximum sum of one hundred dollars ($100.00) in Canadian currency. The foregoing provisions shall all apply notwithstanding the failure of the essential purpose of any limited remedy.
13. EQUITABLE REMEDIES: You acknowledge and agree that a breach of this Agreement may cause Klondike Strike irreparable harm for which no adequate remedy exists at law, and for which damages will not be an adequate remedy, and that upon any such breach or threatened breach Klondike Strike shall be entitled to injunctive relief without prejudice to any other right in law or equity and without the necessity of prior demand or proof of damage, and without the necessity of providing an undertaking as to damages or posting a bond or surety.
14. INDEMNITY OF KLONDIKE STRIKE BY YOU: You will be liable to and shall indemnify and save harmless Klondike Strike, its affiliates, and their respective officers, directors, shareholders, employees, agents, representatives, successors and assigns from and against any and all claims, actions, suits, proceedings, costs, expenses, damage and/or liabilities (including reasonable legal fees) whatsoever arising out of, connected with, or resulting from: (a) your access to and use of the System and/or the Data; (b) any breach by you of this Agreement, or any breach by you of any warranty given by you; and (c) your actions and omissions in connection with your use of the System and/or the Data.
15. SURVIVAL: Upon termination of this Agreement, howsoever caused, the following Sections, including all SubSections, paragraphs and subparagraphs thereto, will survive and continue in full force and effect: Section 9 (Representations and Warranties); Section 10 (Ownership and Intellectual Property Rights); Section 11 (Disclaimers and Limitations); Section 12 (Limitation of Liability); Section 13 (Equitable Remedies); Section 14 (Indemnity of Klondike Strike By You); Section 17 (Governing Law); and Section 18 (General Provisions).
16. RIGHTS CUMULATIVE: The rights of Klondike Strike under this Agreement shall be cumulative, and the election by Klondike Strike to pursue any remedy, whether legal or equitable, shall not be deemed to be a waiver of the rights of Klondike Strike to other remedies.
17. GOVERNING LAW: This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Subject to the rights of Klondike Strike to seek equitable relief in any court of competent jurisdiction for a breach of its rights as provided in this Agreement, you irrevocably submit and attorn to the jurisdiction of the courts of the Province of Ontario. Any litigation arising out of this Agreement shall be commenced and all proceedings, including examinations for discovery, and the trial shall be held in Toronto, Ontario.
18. GENERAL PROVISIONS:
(a) If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision of this agreement, and all such other provisions shall remain in full force and effect, and it is the intention of the parties hereto that if any provision of this agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning that renders it valid.
(b) No waiver of any right or of any breach of any provision of this Agreement by either party shall constitute a waiver of any other right or breach of any other provision, nor shall it be deemed to be a general waiver of such provision by such party or to sanction any subsequent breach thereof by the other party.
(c) This Agreement are meant by the parties to not only apply to initial access to or use of the System and/or the Data, but also on an ongoing and continuous basis to any and all access to or use of the System and/or the Data.
(d) This Agreement and everything herein contained shall enure to the benefit of and be binding upon the parties together with their personal representatives, heirs, successors and permitted assigns but, being personal to you, this Agreement shall not be assigned by you, by operation of law or otherwise, without the prior written consent of Klondike Strike, in its sole discretion, which consent may be unreasonably withheld. Klondike Strike may freely assign this Agreement.
(e) Unless expressly stated otherwise, nothing in this Agreement shall be construed so as to amend, limit, expand, modify or terminate any other agreement by you or any other party, including Company, with Klondike Strike, and any and all such agreements shall continue in full force and effect.