BY ACCEPTING THIS AGREEMENT, EITHER BY COMPLETING THE ONLINE APPLICATION PROCESS BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on February 1, 2010. It is effective between You or the entity or company for which You are accepting this Agreement (“You” or “Your”) and Foodtree Media Inc. (“We”, “Us”, or “Our”) as of the date of You accepting this Agreement.
We shall provide You with informational services (the “Service”) provided by Us via www.foodtree.com (the “Site”). You agree that Your use or purchase of the Service hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. You may use the Service as a visitor (“Visitor”) or as a food producer or distributor (the “Subscriber”). For purposes of this Agreement, Visitors and Subscribers are referred to as “User”).
We shall: (i) provide to You basic support for the Service at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week except for: (a) planned downtime (of which We shall give notice via the Service), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, or Internet service provider failures or delays, or unpredicted functionality glitches, and (iii) provide the Service only in accordance with applicable laws and government regulations.
You shall be solely responsible for the accuracy, quality, integrity and legality of all electronic data or information submitted by You (or by Us at Your request) to the Service or your profile information (“Profile Information”) upon registering as as User (collectively “Your Data”) and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Us promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with applicable laws and government regulations, including without limitation those laws and regulations pertaining to control and disclosure of personally identifiable information.
You shall not: (i) sell, resell, rent or lease the Service, (ii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iii) use the Service to store or transmit any users of worms, timebombs, Trojan horses, or other harmful or malicious codes, files, scripts, agents or programs (each, a “%b Malicious Code ”), (iv) interfere with or disrupt the integrity or performance of the Service, third-party data contained therein or any User access to or use of the Site, (v) attempt to gain unauthorized access to the Service or their related systems or networks, (vi) display, transmit or otherwise make available on the Site or as part of Your Data that is pornographic, obscene, indecent, or vulgar; (vii) display, transmit or otherwise make available on the Site material that is infringing, threatening, harassing, libelous, hateful, racially or ethnically objectionable, unlawful, tortious, harmful to children, invasive of another’s privacy or violative of third party privacy rights; or (viii) display or transmit on the Site material promoting or providing instructional information about illegal activities, promoting physical harm or injury against any group or individual, or promoting any act of cruelty or (ix) attempt to decipher, decompile, or reverse engineer any of the software comprising or in any way making up the Site.
You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all content and data submitted to or published via the Site by You, or by users of websites created by You using the Service; (ii) comply with all applicable laws (including but not limited to export laws) in using the Service; and (iii) use the Service solely in accordance with any guide or policy published by Us.
The Site or the Service may include advertisements. In consideration for Us granting You access to and use of the Service, You agree that We or any Our third party providers or partners may place such advertising on the Site or the Service.
The Service may permit You to see or link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. These other websites are not under Our control, and You acknowledge that We are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Us or any association with its operators. You further acknowledge and agree that We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
If You purchase the Service as a Subscriber, You shall pay all Subscription Fees for the Service (the “%b Subscription Fees ”) (www.foodtree.com/join) The Subscription Fees are quoted and payable in United States dollars and payment obligations are non-cancelable and Subscription Fees paid are non-refundable. Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, Subscription Fees for Subscriptions added in the middle of a monthly period will be charged for that full monthly period.
Your right to access and use the Site and the Service is personal to You and is not transferable by You to any other person or entity. You agree not to disclose Your password to any third party. You are only entitled to access and use the Site for lawful purposes. You agree to provide true, accurate, current and complete information about Yourself, and You may not misrepresent Your Profile Information. In order for the Service to function effectively, You must also keep Your Profile Information up to date and accurate. If You do not do this, the accuracy and effectiveness of the Service to You will be affected.
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for Service. Such charges shall be made in advance, on a monthly basis or the first day of each month.
Unless otherwise stated, Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Site and the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You shall not (i) permit any third party to access the Service except as permitted in a Subscription, (ii) create derivate works based on the Service, (iii) copy, frame or mirror any part or content of the Service, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Service, or (v) access the Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Service.
As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
You acknowledge that any ideas, suggestions, concepts, processes or techniques which You provide to Us related to the Service, the Site and Us (“Feedback”) shall become Our property without any compensation or other consideration payable to You by Us, and You do so of Your own free will and volition. We may or may not, in Our sole discretion, use or incorporate the Feedback in whatever form or derivative We may decide into Our services, software, documentation, business or other products, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to Us in any Feedback and, as applicable, waive any moral rights.
By submitting any content to Us or using the Service, You represent that You have all necessary rights and hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, process, and prepare derivative works of, modify, display, and perform all or any portion of the content in connection with the Site and our 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 a non-exclusive license to access Your posted content through the Site, and to use, reproduce, distribute, prepare derivative works of, display and perform such content as permitted through the functionality of the Site and under this Agreement.
You agree that Your Data stored on Our online services is subject to Our Privacy Policy (www.foodtree.com/privacy-policy) (the “Privacy Policy”) which governs Our collection and use of Your Data. You understand that through the use of the Service You consent to the collection and use of Your Data in accordance with the Privacy Policy.
Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE AVAILABILITY OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, VIRUS FREE OR ERROR FREE OR THAT ERRORS IN THE ONLINE PROGRAM WILL BE CORRECTED.
WE MAKE NO REPRESENTATIONS, CONDITIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE SITE OR OF THE SERVICE, OR WHICH IS DERIVED FROM OR BY THE USE OF THE SITE OR THE SERVICE, AND EXPRESSLY DISCLAIM ANY WARRANTIES OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE CONTENT AVAILABLE THROUGH THE SERVICE IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
WE ARE NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY US.
You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
This Section 7 (Indemnification) states the Your sole liability to, and Our exclusive remedy against, for any type of Claim described in this Section.
WE SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFIT, DATA, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR USE OR ACCESS TO Us.COM, THE SERVICE OR THIS AGREEMENT, EVEN IF Us HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OUR LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED, IN AGGREGATE FOR ANY AND ALL CLAIMS ARISING OUT OF, OR RELATED TO THIS AGREEMENT, TO DIRECT DAMAGES OF $100.00. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT (SUBSCRIPTION FEES). YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US RELATED TO THE SERVICES THAT RESULTS IN OUR LIABILITY SHALL BE CANCELLATION OF THE SERVICE. IF ANY COURT AWARDS ANY DAMAGES DESPITE THE FOREGOING LIMITATION OF LIABILITY, SUCH DAMAGES SHALL NOT EXCEED THE DAMAGES OTHERWISE PAYABLE AS SET OUT IN THIS SECTION 7.1.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
This Agreement will continue to apply until terminated by either You or Us as set out below. If You want to terminate Your legal agreement with Us, You may do so by (i) notifying Us at any time and (ii) closing Your account for the Service. Your notice should be sent via email to: privacy (at) foodtree (dot) com or in writing, to Our address at: 163 W. Hastings, Suite 200, Vancouver, BC Canada 1H5 V6B.
Without cost, charge or liability, We may at any time, immediately upon notice to the e-mail address provided by You as part of Your Profile Information, terminate this Agreement with You: (i) if You have breached any provision of this Agreement (or have acted in a manner which clearly shows that You do not intend to, or are unable to comply with the provisions of this Agreement); (ii) if We in our sole discretion believes it is required to do so by law (for example, where the provision of the Service to You is, or becomes, unlawful); or (iii) at any time without notice for any reason.
Upon request by You made within 60 days after the effective date of termination of the Service, We will make available to You for download a file of Your Data in Archive format (.zip or similar format). After such 60-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
Sections 3 (Fees and Payment for Service), 4 (Proprietary Rights), 5.2 (Disclaimer), 6.1 ( Indemnification), 7 (Limitation of Liability), 8.2 (Return of Your Data), 8.4 (Notices), 8.5 (Governing Law) and 9 (General Provisions) shall survive any termination or expiration of this Agreement.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an identifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Service account, and in the case of billing-related notices, to the relevant billing contact designated by You.
Each party agrees that this Terms of Service shall be governed by the laws of the Province of British Columbia and the laws of Canada therein without regard to choice or conflicts of law rule. Each party attorns the exclusive jurisdiction of the courts in the Province of British Columbia.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
There are no third-party beneficiaries to this Agreement.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
We may modify this Agreement from time to time. You will be notified of any and all changes to this Agreement through a prominent notice on the Site or an email notice. In addition, the Agreement will always indicate the date it was last revised. You are deemed to accept and agree to be bound by any changes to the Agreement when You use the Service after those changes are posted.
If We receive a notice alleging that material on Your Site infringes another party’s copyright, we may disable that Site in accordance with Title II of the Digital Millennium Copyright Act of 1998 (Section 512 of the U.S. Copyright Act) or the Copyright Act (Canada), as applicable.
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