Terms of Use
Don't be evil
This is the legal bit. Please don't steal or break our stuff. Do pay your bills on time. Don't break the law. And don't spread viruses to our systems or share your passwords. If you're okay with all that, we're good. If you really don't want to be bound by these terms, inform us in writing and we will terminate you your services.
Parties
Your IP address (38.107.191.103) has been recorded to confirm that you have been presented with the opportunity to read this Agreement.
"BWI" means BirksWorks Inc., a company registered in Alberta, Canada.
"Services" means all BWI web sites (including but not limited to www.birksworks.ca), content, information, software and services, including any goods or services provided to You.
"You" means You, the user of BWI's Services.
"Terms" means the Terms of Use set out in this document.
Acceptance of Terms
By using or visiting this or any other BWI website (the "Website"), including any website designed, developed, maintained, hosted or in any other way made available to You, You agree to these terms and conditions (the "Agreement). BWI may, in its sole discretion, revise this Agreement at any time without advance notice to you. You are bound by such revisions by continuing to use the Services or visit the Website after they are posted online.
Duration
This agreement is effective 1st December 2008 and will be in force throughout the period You use our Services and for a period of two (2) years thereafter.
Scope
BWI provides graphic design, software development, domain registration, email marketing, website development, consulting, and other services as may be added or removed from time to time. BWI reserves the right to discontinue any services provided to you by giving 30 days written notice or with immediate effect if You are in breach of this Agreement.
Ownership
BWI owns all intellectual property rights, including without limitation copyright and trade-mark rights, in all materials on or comprising the Websites, including, without limitation, all written, audio visual or other materials and graphical elements on the Websites. If You commission BWI to provide graphic or web design service, any mockups, representations, artist's impressions of logos, logo devices, type marks or any other brand element remain the sole property of BWI. In the event that a logo, logo device, type mark or brand element ("Logo") is chosen by You to form part of a website or other project, you are entitled to use the Logo only for the application for which the Logo was provided. For the avoidance of doubt, Logos provided for website applications may not be used on other websites, print applications or any other media without the express written consent of BWI. BWI at its sole discretion may transfer ownership of the Logo to you for your unlimited use upon payment of a Royalty Fee which will be detailed on a case by case basis.
Miscellaneous
1. You affirm that you are either more than 18 years of age, or possess parental or guardian consent to agree to this Agreement and access and use the Website or Services, and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
2. This Agreement will be governed by and construed in accordance with the laws of the Province of Alberta, Canada, without giving effect to its conflict of laws provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located in the Province of Alberta, Canada.
3. You may not assign this Agreement or assign any rights or delegate any obligations under this Agreement, in whole or in part, whether voluntarily or by operation of law, without our prior written consent.
4. This Agreement constitutes the entire agreement between you and BWI with respect to the subject matter and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remaining provisions of this Agreement will continue in full force and effect.
Your Obligations
1. You agree to do each of the following: (i) comply with applicable law and with this Agreement (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with BWI's reasonable investigation of outages, security problems, and any suspected breach of this Agreement, (v) keep your billing contact and other account information up to date; and (vi) immediately notify BWI of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or this Agreement, BWI's reasonable determination shall control.
Suspension
We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of this Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don't cooperate with our reasonable investigation of any suspected violation of this Agreement; (iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect BWI or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under this Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $2500) upon reinstatement of the Services.
Termination
We may terminate this Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into this Agreement at the time you submitted the order for Services, or if you are an entity or fiduciary, the individual submitting the order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment away from BWI in an orderly fashion, subject to a reasonable administration charge (not to exceed $2500), (v) you use your Service in violation of this Agreement and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate this Agreement more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of this Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
Unauthorized Access
BWI is not responsible to you for unauthorized access to your data or the unauthorized use of the Services. You are responsible for the Website's security and use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
Confidential Information
Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under thIS Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms and Conditions.
to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable criminal law as required by law; or
in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
Force Majeure
Neither of us will be in violation of thIS Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
Domain Registration
If you register, renew, or transfer a domain name through BWI, BWI will submit the request to its domain name services provider (the "Registrar") on your behalf. BWI'S sole responsibility is to submit the request to the Registrar. BWI is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the applicable legal terms of the Registrar. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
Disclaimer
YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. THE WEBSITE AND SERVICES AND CONTENT IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. BWI DOES NOT WARRANT THAT THE SERVICES, THE WEBSITE OR CONTENT CONTAINED IN THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Limitation of Liability
BWI, ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, OR DAMAGES RESULTING FROM ANY (I) ERRORS OR OMISSIONS IN CONTENT, (II) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE OR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE OR SERVICES BY ANY THIRD PARTY, OR (V) FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR SERVICES. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE LEGAL THEORY GIVING RISE TO THE DAMAGES, AND EVEN IF BWI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT BWI, ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
Indemnity
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS BWI, ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, JUDGMENTS, LOSSES, LIABILITIES, COSTS OR DEBT, ATTORNEY'S FEES AND OTHER EXPENSES ARISING FROM: (I) YOUR USE OF AND ACCESS TO THE WEBSITE OR SERVICES; (II) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT; OR (III) ANY CLAIM THAT YOU DID NOT HAVE THE RIGHT TO PROVIDE ANY USER CONTENT OR THAT YOUR USER CONTENT CAUSED DAMAGE TO A THIRD PARTY. THIS DEFENSE AND INDEMNIFICATION OBLIGATION WILL SURVIVE THESE TERMS AND YOUR USE OF THE WEBSITE. IN SUCH A CASE, BWI WILL PROVIDE YOU WITH WRITTEN NOTICE OF SUCH CLAIM, SUIT OR ACTION.
Last updated April 2010