Terms of Service – Rubrix
Welcome to Rubrix and Rubrix.com, the mobile application, website and online ‘software as a service’ of Discovery Software Ltd. (collectively “Discovery”, “Our”, “We”).
This User Agreement and Terms of Service, collectively “Software Service Agreement” or “Agreement”, comes into effect as of January 1, 2010 and provides the basis and terms by which you may use the web site, feeds, or mobile device software applications, owned, controlled, or offered by Discovery (collectively the “Site”). We reserve the right to revise this Agreement and all linked information from time to time at our sole discretion by updating this posting or any linked information. We may make such revisions without prior notice to you, so please check back often for updates. Unless otherwise provided in such revision, the revised Agreement, or part thereof, will take effect when they are posted.
You, the User, are deemed to have read and understood this Agreement and by using the Site you agree to be bound by this Agreement.
DEFINITION OF TERMS
Users are people that use the service. All Users are required to provide their name and email address to register and hold an account with us. There are various types of Users:
- A Guest is a registered, non-paying user of the service who can download the mobile application and use Rubrics from the Site’s free Rubrix Public Library to conduct a review on their smart phone.
- A Member is a registered and currently paid up user of the Site. A Member can download the mobile application, create their own Rubric(s), use Rubrics in the Site’s free Rubrix Public Library or purchase Rubrics from the Site’s store. A member can conduct reviews from a smart phone or the website itself, store and print reviews on the website and view and print reports on reviews.
- Visitors are unregistered people that view the site. Visitors are not asked to provide any information to simply visit the site but may be required to provide their name and email address to visit protected areas of the site or to gain access to protected functions on the site. There are various special types of visitors:
- A Contributor is a temporary user invited by a Member to assist in conducting a Multiple Reviewer Review with that Member.
- A Nominee is a temporary user (usually a subject or delegate of a subject) invited by a Member to view the results of a review or evaluation conducted by that Member.
An Account means a Rubrix.com account that is opened when you register, either for your own purposes or on behalf of an organization or entity for whom you are acting, to become a User and use the Site. An Account must have at least one User designated as the Account Owner that is responsible for billing. An Account must also have one User designated as the AccountPrimary User who is responsible for managing, or sometimes delegating, that account’s administration; for example, its rubrics, subjects, members (if any) and other permission–oriented tasks. All Reviews and Evaluations belong to an Account. There are various types of Accounts:
- A Guest Account is a free account set up for use by a guest user.
- An Individual Account is a paid account set up for use by an individual member.
- An Organization Account is a paid account set up for use by one or more members of an organization or group. Within an organization account, members may be grouped into one or more Organizations.
An Organization can represent a legal entity, such as a school, school district, business, franchise or a loose association of persons such as book club. For the purposes of the site, an Organization is a self-administered sphere of activity with its own Members and an Organization Account provides access for one or more Organizations and their Members. Some Organization Accounts may be composed of a parent organization and several sub-entities for the purposes of managing their individual memberships; for example, a school district and its associated schools. In such situations, the Primary User is usually associated with the parent organization (eg district IT person), though the other organizations will usually be self administered by member Organization Administrators (e.g. school IT persons).
An Evaluation is a collection of Artifacts (one or more Reviews and supporting documents) relating to a Subject.
A Review is an assessment of a Subject by a User using a Rubric as a guide.
A Rubric is an evaluation guide with a clear set of standards and examples that allow a non-expert to accurately and consistently assess a subject. It encapsulates an expert’s knowledge of how to make an evaluation on a particular attribute or set of attributes as it pertains to the subject matter. We have further defined the components of a Rubric on the Site – see Rubric Definitions.
A Subject is a person, entity or object being reviewed by a Reviewer. A Subject person need not be a User.
Intellectual Property Rights means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Discovery makes the Site available as an online software service where registered and current Users manage, host and access their evaluations, reviews and rubrics, generate reports on their reviews and so on. The Site also facilitates the creation and sharing of Rubrics, the sale and purchase of Rubrics, and access to the free Rubrix Public Library. All Users will be able to download the Rubrix software for smart phones, download Rubrics from the free Rubrix Public Library and conduct reviews on smart phones. Only Members will be able to access Rubrics outside the free Rubrix Public Library upload their reviews to the Site, save and print their reviews as well as create, sell and purchase rubrics.
User Eligibility and Obligations
To access Site Services through our Site, you must be a legal entity or an individual who can form legally binding contract with Discovery. To register for an Account with Rubrix, you must accept all the terms and conditions in, and linked in, to this Agreement. By becoming a User, you agree to:
- Abide by this Agreement and the processes, procedures and guidelines described throughout the Site.
- Be financially responsible for your use of the Site
- Meet your obligations and use the Site responsibly and not bring Discovery or the Site into disrepute with any action whatsoever.
Discovery reserves the right in its sole discretion to refuse, suspend, or terminate service to anyone for any or no reason whatsoever at any time.
To become a User and access Site Services through our Site, you must register for an Account. You agree to provide true, accurate and complete information as prompted by the registration form and all forms you access on the Site, and to regularly update this information to maintain its accuracy and completeness.
As the Primary User of an Organization Account, you may add other Members and Organizations to your account by paying the applicable fees. You may create additional Organizations within the account, add Members to them, and grant certain account administration privileges to one or more of these Members – Organization Administrators. Only the Primary User or an Organization Administrator can add or delete Members to the Account. If for any reason the Primary User’s Account is terminated, all subordinate Members will also be terminated.
As the Primary User of an Organization Account, you hereby represent, warrant and agree to grant access to the Account and any related Organization(s) only to Members authorized to act on behalf of the Organization and only in accordance with this agreement. Additionally, the Primary User hereby represents, warrants and agrees to be fully responsible and liable for any action of any Member who uses the Account, including Organization Administrators.
As a User of the Site, you agree:
- Not to use any Account, username or password of another User of the Site that you are not authorized to use, and
- Not to allow others who are not authorized to do so to use any Account, username or password of any User at any time.
Your Account and username are not transferable and any transfer or attempted transfer to another party is null and void.
Usernames and Passwords
When a User registers an Account, the User will be asked to provide an email address to serve as a username and to create a password for the Account. The Primary User and subsequently appointed Organization Administrators will also be asked to choose the initial username and password for any other Members that are added to the Account (and can change the username and password for any Member at any time). As a User, you agree to be entirely responsible to safeguard and maintain the confidentiality of the username and password you use to access this Site. In addition, if you are a Primary User who holds an Organization Account, or if you are an Organization Administrator, you agree to safeguard and maintain the confidentiality of all your Organization’s Member Account passwords.
User further agrees to authorize Discovery to assume that any person using the Site with your username and password or your organization account passwords and the username of any Organization added by the Organization Administrator or Primary User is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of the Account or access to your password or that of any Member of your Organization(s).
Members are required to pay a Membership Fee to Discovery for creating, hosting, maintaining and providing the Site and for the services delivered by Discovery that are accessible through the Site.
Members can choose various membership programs to access different levels of participation as detailed from time to time on List of Membership Fees on the Site. Such fees are payable to Discovery on opening Accounts and on each anniversary thereafter at the current rate so listed on the Site, provided the Member wishes to retain their Account.
Unpaid membership fees will result in closure of the account and may be subject to a reactivation fee in addition to Membership fees.
Payment Processing Fees may be charged by Discovery to cover expenses and charges incurred for bank transfers, credit card charges, PayPal and other payment processors for the purchase and sale of Rubrics and Reports.
Discovery may choose to offer additional services and reserves the right to charge additional fees for these services as and when offered on the Site. The current fee rates for these additional fees and the cost of Rubrics will be listed on the Site.
RELATIONSHIP WITH DISCOVERY
Discovery has no control over and does not guarantee the quality, safety or legality of the Rubrics provided by Users on the Site, nor those that are created and owned by organizations for their own members use.
This Agreement and any registration for or subsequent use of this Site will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and Discovery, except and solely to the extent expressly stated.
Discovery has the right to take such actions with respect to User use of their Accounts, including without limitation, suspension, termination or legal actions as Discovery in its sole discretion deems necessary to protect the value, reputation and goodwill of the Site.
THIRD PARTY CONTENT
Library of Rubrics
The Site contains a Library of free Rubrics, created by other Members or available in the public domain. Discovery provides this library as a convenience to its Members and does not confirm or verify the information contained, methodology or approach undertaken, nor validate the results of review in the use of these Rubrics.
Verification and Monitoring
Discovery also does not validate the credentials nor the legal ownership of those Authored Rubrics. Any opinions, advice, statements, services, offers or other information or content expressed or made available by these third parties or any other Users are those of the respective author(s) or distributor(s) and not of Discovery.
Discovery neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information or statement made on the Site by anyone other than authorized Discovery employees acting in their official capacities.
This Site may contain links to other Web sites or resources and access and use of certain services offered by third parties. Your access and use of those Web sites, resources or services will be governed by the terms and policies of the Web site or resource or Provider. These services are owned and operated by the third-party Providers and their licensors. You acknowledge and agree that Discovery is not responsible or liable for: (i) the availability or accuracy of such sites or resources; or (ii) the content, advertising, or products on or available from such Sites or resources. The inclusion of any link on the Site does not imply that we endorse the linked site. You use the links and these services at your own risk.
LICENSES AND SITE ACCESS
Discovery’s Rubrix License to User
Subject to and conditioned on compliance with this Agreement, Discovery grants you a limited license to access and, if you are a User, to use this Site internally for the purpose of ordering and receiving the Site Services available and authorized from this Site. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost or otherwise use any content of this Site in any way for any public or commercial purpose without prior written consent of Discovery or the rights holder. You must not use any content of this Site on any other Web site or in a networked computer environment for any purpose except your own internal viewing. You will not attempt to reverse engineer or attempt to interfere with the operation of any part of this Site unless expressly permitted by law. This Site or any portion of this Site may not be reproduced, duplicated, copied, sold, resold or otherwise exploited for any commercial purpose that is not expressly permitted by Discovery.
Access and Interference
You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will not:
- Take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- Copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of Discovery and the appropriate third party, as applicable;
- Interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site;
- bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
- Transmit spam, chain letters, or other unsolicited communications;
- Attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
- Upload invalid data, viruses, worms, or other software agents through or to the Site;
- Collect or harvest any personally identifiable information, including account names, from the Site; or
- Access any content on the Service through any technology or means other than those provided or authorized by the Service.
Some areas of the Site may allow Users to post their rubrics for public use, feedback, comments, questions, and other information (“User Content”). You are solely responsible for your User Content that you upload, publish, display, link to or otherwise make available (hereinafter, “post”) through the Site, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand that whether or not such User Content is published, Discovery does not guarantee any confidentiality with respect to any User Content.
You further agree not to post User Content that:
- may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
- may create a risk of any other loss or damage to any person or property;
- seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
- may constitute or contribute to a crime or tort;
- contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libellous, threatening, profane, or otherwise objectionable;
- contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
- contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or
- contains any information or content that you know is not correct and current.
You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, rights of publicity and privacy. To the extent that your User Content contains music or video, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below.
Discovery reserves the right, but is not obligated, to reject and/or remove any User Content that Discovery believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Site is not a substitute for registering it with the appropriate Copyright Office or any other rights organization.
Discovery takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility. Discovery is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, objectionable, or inappropriate for children, and you agree that Discovery shall not be liable for any damages you allege to incur as a result of such User Content.
Furthermore, Discovery has no editorial control over User Content posted by Users on the Site and is not responsible for and does not monitor such content for accuracy or reliability. Discovery does not confirm or verify whether a Rubric Provider has the expertise, or is qualified or licensed to provide the Rubric.
User License to Discovery’s Rubrix Site
You retain all your ownership rights in your User Content. By posting any User Content on the Site, you expressly grant, and you represent and warrant that you have a right to grant, to Discovery a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Site and Discovery’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Site a non-exclusive license to access your User Content through the Site, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Site and under this Agreement.
The above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete your User Content from the Site. You understand and agree, however, that Discovery may retain, but not display, distribute, or perform, server copies of User Content that have been removed or deleted. The above licenses granted by you in User Content for which the Site does not provide you a means to delete or remove are perpetual and irrevocable. You may choose to or we may invite you to submit comments or ideas about the Site, including without limitation about how to improve the Site or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Discovery under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Discovery does not waive any rights to use similar or related ideas previously known to Discovery, or developed by its employees, or obtained from sources other than you.
Additional User Representations and Warranties
You shall be solely responsible for your own User Content and the consequences of posting or publishing it.
In connection with your User Content, you affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following:
- You are at least 18 years of age or a legal entity and are 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.
- You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Site and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
- Your User Content and Discovery’s use thereof as contemplated by this Agreement and the Site will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity.
Discovery and its licensors retain all of its right, title and interest in and to all patent rights, inventions, copyrights, know-how, and trade secrets relating to the Site. The Discovery and Rubrix logo and name are trademarks of Discovery Software Ltd, and may be registered in certain jurisdictions. All other product names, company names, marks, logos and symbols on the Site may be the trademarks of their respective owners. Except as expressly stated above, nothing in this Agreement confers any license under any of Discovery’s or any third party’s Intellectual Property Rights, whether by estoppels, implication or otherwise.
Resolution of Disputes between Member and Discovery
If a dispute arises between you and Discovery our goal is to resolve such dispute quickly and cost-effectively.
Accordingly, you and Discovery agree that we will resolve any claim or controversy at law or equity that arises between us out of this Agreement or the Site Services (a “Claim”) in accordance with this section of the Agreement. Before resorting to these alternatives, you agree to first contact Discovery directly to seek dispute assistance email@example.com.
Law and Forum for Disputes
This Agreement is governed in all respects by the laws of the Province of British Columbia without giving effect to any principle that may provide for the application of the law of another jurisdiction. You agree that any claim or dispute you may have against Discovery must be resolved by a court located in Vancouver, British Columbia, or as described in the Arbitration Option paragraph below. You hereby submit to the exclusive personal jurisdiction of the courts located within Vancouver, British Columbia for the purpose of litigating all such claims or disputes. Any cause of action you may have with respect to this Site must be commenced within 30 days after it arises, or the cause of action is barred.
For any claim arising between you and Discovery (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $5,000, the party requesting relief may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. A party electing arbitration must initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules:
- The ADR provider will specify whether the arbitration will be conducted by telephone, online, or solely based on written submissions;
- The arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
- if an arbitrator renders an award the party receiving the award has the right to enter any judgment on the award in any court of competent jurisdiction.
Improperly Filed Claims
Should you file a claim contrary to this section entitled “Resolution of Disputes between Member and Discovery,” Discovery will be entitled to recover attorneys’ fees and costs up to $2,000, provided that Discovery has notified you in accordance with this Agreement of the improperly filed claim, and you have failed to promptly withdraw the claim.
TERM; TERMINATION AND SUSPENSION
This Agreement shall become effective as your contractual agreement upon your acceptance or your use of the Site, and shall continue until your Account is terminated by Discovery or you as provided for under the terms of this Section. Unless otherwise agreed to in writing between the parties, either party may terminate the contractual agreement represented by this Agreement at any time upon notice to the other party. In such event, your
Account is automatically terminated and
- Discovery shall continue to perform those Services necessary to complete any open transaction between you and another User; and
- You shall continue to be obligated to pay any amounts accrued but unpaid as of the date of termination to Discovery for any Site Services and to any Providers for any Rubrics purchased.
Any termination of an Account will automatically lead to the termination of all related services, and any termination of an Organization Account gives Discovery the right to terminate services for any or all related Organizations and their Members.
Without limiting Discovery’s other remedies, we may issue a warning, or temporarily suspend, indefinitely suspend or terminate your Account, and refuse to provide any or all Site Services to you if:
- You breach the letter or spirit of any terms and conditions of this Agreement or the linked policies and information incorporated herein by reference, including our written policies and procedures posted on the Site or linked here;
- We suspect or become aware that you have provided false or misleading information to us; or
- We believe in our sole discretion that your actions may cause legal liability for you, our Users or for Discovery or are contrary to the interests of the Site or the Discovery user community. Once indefinitely suspended or terminated, you must not continue to use the Site under the same Account, a different Account, or reregister under a new Account. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. Without limiting Discovery’s other remedies, to the extent you engage in actions or activities which circumvent the Site or otherwise reduce fees owed Discovery under this Agreement, you must pay Discovery for all fees owed to Discovery and reimburse Discovery for all losses and costs (including any and all Discovery employee time) and reasonable expenses (including attorney fees) related to investigating such breach and collecting such fees.
Discovery reserves the right to terminate any User access or Account for any reason or no reason, at its sole discretion and to refuse to provide registration and membership to you in the future. We will notify you if we cancel your membership, unless in our judgment giving notice would cause a risk of further violation or damages. However, we will notify you that your Account will be cancelled if the law requires such notification.
When your Account is terminated for any reason, you may no longer have access to data, messages, files and other material you keep on the Site.
The sections entitled “DEFINITION OF TERMS”, “RELATIONSHIP WITH DISCOVERY,” “DISCOVERY FEES,” “THIRD-PARTY CONTENT,” “LICENSES AND SITE ACCESS,” “RESOLUTION OF DISPUTES BETWEEN MEMBER AND DISCOVERY,” “TERM; TERMINATION AND SUSPENSION,” “DISCLAIMERS, LIMITATIONS AND EXCLUSIONS,” “NOTICES AND COMMUNICATIONS,” “MISCELLANEOUS TERMS AND CONDITIONS,” will all survive termination of the contractual agreement between us.
Notification of Rubrix Members
You acknowledge and agree that the value, reputation and goodwill of the Site depend on transparency of Member Account status to all Members, including both yourself and other Members that share your Account. You therefore agree as follows: IF DISCOVERY SUSPENDS OR TERMINATES YOUR ACCOUNT, DISCOVERY HAS THE RIGHT BUT NOT THE OBLIGATION TO (1) NOTIFY OTHER MEMBERS IN YOUR ACCOUNT TO INFORM THEM OF YOUR SUSPENDED OR TERMINATED ACCOUNT, AND (2) PROVIDE THEM WITH SUMMARY REASONS FOR THE ACTION.
DISCLAIMERS, LIMITATIONS AND EXCLUSIONS
You are responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on Discovery’s part to store, backup, retain, or grant access to any information or data for any period. We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information, or information about the entity that you represent, at your own risk.
THE SITE SERVICES PROVIDED BY DISCOVERY OR ANY OF OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS ARE PROVIDED “AS IS,” AS AVAILABLE, AND WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). WE MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE WEB SITE BY ANY THIRD PARTY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING LIMITATIONS ON IMPLIED WARRANTIES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE OR OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL OUR LIABILITY TO YOU FOR ANY ACTION OR CLAIM RELATED TO THE SITE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF: (A) $100, OR (B) THE AGGREGATE AMOUNT OF SERVICE CHARGES ACTUALLY COLLECTED BY US FROM YOU FOR THE SITE SERVICES TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
If you have a dispute with another User, you release Discovery (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
You agree to defend, hold harmless and indemnify Discovery from and against any and all losses, costs, expenses, damages or other liabilities incurred by Discovery from and against any cost, liability, loss, damage, cause of action, claim, suit, proceeding, demand or action brought by a third party against Discovery:
a) in connection with your use of the Site Services including any payment obligations incurred through use of the
Site Services; or
(b) resulting from: (i) your use of the Site; (ii) your decision to supply credit information via the Site, including personal financial information; (iii) your decision to submit postings and accept offers from other Members; (iv) any breach of contract or other claims made by Members with which you conducted business through the Site; (v) your breach of any provision of this Agreement; (vi) any liability arising from the tax treatment of payments or any portion thereof; (vii) any negligent or intentional wrongdoing by any User; (viii) any act or omission of yours with respect to the payment of fees to any Provider; (ix) your dispute of or failure to pay any invoice or any other payment; or (x) your obligations to a Provider. Any such indemnification shall be conditioned on our: (a) notifying you in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (b) cooperating with you in the defence or settlement thereof; and
(c) allowing you to control such defence or settlement. We shall be entitled to participate in such defence through our own counsel at our own cost and expense. We reserve the right to report any wrongdoing of which we become aware to the applicable government agencies or otherwise.
NOTICES AND COMMUNICATIONS
Communications from Discovery to you
Unless you otherwise indicate in writing to Customer Support, Discovery will communicate with you by email or by posting communications on the Site. You consent to receive communications from us electronically and you agree that these electronic communications satisfy any legal requirement that such communications be in writing. You will be considered to have received a communication when Discovery sends it to the email address you have provided to Discovery on the Site, or when Discovery posts such communication on the Site. You must keep your email address updated on this Site, and you must regularly check this Site for postings. If you fail to respond to an email message from Discovery regarding violation, dispute or complaint within five business days, Discovery has the right to terminate or suspend your Account.
Communications from you to Discovery
All notices to Discovery intended to have a legal effect concerning this Agreement must be in writing and delivered either in person or by a means evidenced by a delivery receipt, to the following address:
Discovery Software Ltd #202, 30720 Simpson Road Abbotsford, British Columbia V2T 6C7 Attn: Support Manager
Such notices to Discovery are deemed effective upon receipt.
MISCELLANEOUS TERMS AND CONDITIONS
You are responsible for compliance with applicable local laws. Discovery will not be considered to have modified or waived any of our rights or remedies under this Agreement unless the modification or waiver is in writing and signed by an authorized representative of Discovery. No delay or omission by Discovery in exercising its rights or remedies will impair its rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. You will not transfer, assign or delegate your rights or obligations (including your Account) under this Agreement to anyone without the express written permission of Discovery, and any attempt to do so will be null and void.
Discovery may assign this Agreement in its sole discretion. This Agreement, together with any other legal notices and agreements published by Discovery via the Site, shall constitute the entire agreement between you and Discovery concerning the Site. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
The Site is controlled and operated from its facilities in the Canada and the United States. Discovery makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable
Canadian and local laws and regulations, including but not limited to export, import regulations and embargoes.
Except for the payment of fees to Discovery, neither of the parties to this Agreement shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party shall be extended by the period of such delay.
The boldface paragraph headings in this Agreement are included for ease of reference only and have no binding effect. This Agreement and all documents referenced in this Agreement (including the Terms of Service available by hyperlink above) comprise the entire agreement between you and Discovery with respect to the use of this Site and supersede all prior agreements between the parties regarding the subject matter contained herein as well as any conflicting or inconsistent terms in any Web site that link to or are linked from this Site. For convenience, this Agreement may be displayed in HTML and/or PDF versions. In the event of any inconsistency between such versions, the PDF version will govern.
If you wish to report a violation of the Terms of Service, have any questions or need assistance, please contact Discovery Customer Support as follows:
Phone: (Mon-Fri, 7 a.m. – 4 p.m. Pacific Time): 1-888-569-7711