1. Your Acceptance of This Agreement
2. Changes to this Agreement
3. Payment Terms
You shall pay Smart Serve the service fees and all other fees and taxes as set out during the course of the registration process (the “Fees”). Such Fees shall be non-refundable.
(a) Intellectual Property Rights
Subject to section 4(b) below, Websites and the Smart Serve Content are the property of Smart Serve or their owners as the case may be, and are protected by Canadian and international copyright, trademark, and other applicable laws. For the purposes of this Agreement, “Smart Serve Content” means all of the content of the Websites other than User Content (as defined below), including any and all material, information in text, graphical video and audio forms, images, reports, articles, publications, data, databases, charts, graphics, photographs, illustrations, maps, interfaces, web pages, text, files, software, product names, company names, trade-marks, logos and trade names contained on the Websites as well as the manner in which the Content is presented or appears and all information relating thereto. “Content” refers to Smart Serve Content together with User Content.
Except for the rights you may have in User Content posted by you, you do not acquire ownership right or any implied right to any Content obtained, accessed or viewed through the Websites, and the posting of information or materials on the Website does not constitute a waiver of any rights in such information, materials and/or Content.
(b) Your Intellectual Property Rights
Smart Serve claims no ownership or control over any content including any and all material, information in text or other data submitted, posted or displayed by you on or through Websites (the “User Content”). You or a third party licensor, as the case may be, retain all rights to any User Content you submit, post or display on or through Websites and you are responsible for protecting those rights.
By submitting, posting, uploading or displaying User Content on or through the Websites, you grant Smart Serve a royalty-free, perpetual, irrevocable, unrestricted, non-exclusive, worldwide license to use, sublicense, collect, reproduce, store, compile, download, adapt, translate, modify, make derivative works from, transmit, publish, distribute, publicly perform or display such User Content for any purpose using any form, media or technology now known or later developed without providing compensation to you or anyone else, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of Smart Serve.
In addition, you hereby (i) agree to waive all moral rights in any User Content in favour of Smart Serve; (ii) consent to your name, address and e-mail address appearing as the author or contributor of any such User Content, where applicable, and to the disclosure and/or display of such information and any other information which appears in or is associated with such User Content; (iii) acknowledge and agree that Smart Serve is not responsible for any loss, damage, or corruption that may occur to your User Content; and (iv) acknowledge and agree that any User Content you provide for display on the Websites will be considered non-confidential. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any User Content submitted.
5. Permitted Uses
Smart Serve hereby grants you a personal, limited, revocable, non-transferable and non-exclusive license to access, read and download the Content located on the Websites for personal, non-commercial and not-for-profit use only. The Websites are made available to you for your lawful, personal use only.
You may print pages from the Websites for your personal, non-commercial use only, provided that you do not modify any of the Content and you do not remove or alter any visible or non-visible identification, marks, notices, or disclaimers. Other than as specifically described herein, the Websites and Content may not be copied, imitated, reproduced, republished, uploaded, posted, transmitted, modified, indexed, catalogued, merged with other data, mirrored or distributed in any way, in whole or in part, without the express prior written consent of Smart Serve (or, in the case of User Content, the owner of the rights to the User Content).
6. Prohibited uses
You may not, and may not allow others to, directly or indirectly: (i) use the Websites and the Content for any purpose not expressly permitted by this Agreement; (ii) remove from any copy of the Content, the copyright or other proprietary notices contained in the Content; (iii) sell, modify or attempt to modify the Content in any way or reproduce or publicly display, perform or distribute or otherwise use any Content for any public, commercial or non-personal purpose, including, without limitation, use of the Content on any other website; (iv) use the Websites in any manner that could damage, disable, overburden, impair, interfere with the security of, negatively affect the functioning of, or otherwise abuse the Websites or the Website, or any services, system resources, accounts, servers, networks, affiliated or linked sites, connected to or accessible through the Websites or the Website; (v) disrupt or interfere with any other person’s use or enjoyment of the Websites or the Website or affiliated or linked sites, or any services thereof; (vi) use any software which is used in the operation of the Websites except while you are browsing the Websites or performing other activities provided through the Websites, as permitted; (vii) copy any of the software used at Websites unless expressly permitted to do so by Smart Serve; (viii) copy or imitate, in whole or in part, the design of the Website or Websites, or any part thereof.
7. User Content
When using any of the features of the Websites, it is a condition of your use of the Websites that you agree:
- To use the Websites in compliance with all applicable laws;
- To only post User Content that contains accurate information regarding the poster of the User Content and that any User Content you post does not misrepresent the origin of the User Content, impersonate any person or falsely state or otherwise misrepresent an affiliation with another person;
- To not post or transmit any unlawful, threatening, abusive, libellous, defamatory, discriminatory, hateful, obscene, vulgar, pornographic, profane or indecent information of any kind, including, without limitation, any submission constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, provincial, national or international law or regulation;
- To not post or transmit any User Content which violates or infringes upon the rights of others, including material which is an invasion of privacy or publicity rights or which is protected by any intellectual property rights, including, without limitation, copyright, patent, trade secret, trademark or other proprietary rights herein, or derivative works with respect thereto, without first obtaining permission from the owner or rights holder;
- To not delete or revise any User Content posted by any other person or entity;
- To not post or submit any User Content which solicits passwords or personal identifying information for commercial or unlawful purposes from other users;
- To not post or transmit any User Content which contains a virus or other harmful component, or provides or creates computer viruses;
- To not post or transmit junk mail, chain letters, unsolicited mass mailing or spam; and
- To not use the Websites for commercial purposes, including, without limitation, posting, uploading or transmitting any submissions which contain advertising or which engage in commercial activities and/or sales, or which involve contests, sweepstakes, barter and/or advertising.
Although Smart Serve may from time to time monitor or review User Content as stated above, Smart Serve does not have any obligation to do so, and disclaims any responsibility or liability for any User Content posted. User Content represents the views and opinions of the person(s) posting the User Content and does not represent the views or opinions of Smart Serve, its directors or officers. Smart Serve does not assume any liability, and specifically disclaims any liability, to you or any other person arising from Smart Serve’s decision to monitor or not to monitor the User Content consistently or at all. You remain solely responsible for the content and use of your User Content.
8. Certification and Audits
Smart Serve reserves the right to audit completed tests. Should Smart Serve determine that you have submitted any false information in the provision of your test, your certificate will be voided. Smart Serve also reserves the right to complete user audits at any point while you have your certification. As a result of such audit or for any other reasonable cause, as determined by Smart Serve in its absolute discretion, Smart Serve reserves the right to revoke your certification at any time. Refunds will not be issued for voided or revoked certification.
9. Supplemental Terms and Conditions Regarding Submitted Materials and Survey Data
Prior to submitting any Submitted Materials, you may be required to register with this Website and provide User Information. By submitting or sending Submitted Materials to Websites, you: (i) represent and warrant that the Submitted Materials are not confidential, and that no confidential or fiduciary relationship is intended or created between you and Smart Serve in any way, (ii) represent and warrant that the Submitted Materials are original to you, that no other party has any rights thereto, and that any “moral rights” in Submitted Materials have been waived or are waived, and (iii) you grant Smart Serve a royalty-free, perpetual, irrevocable, unrestricted, non-exclusive, worldwide license to use, sublicense, collect, reproduce, store, compile, download, adapt, translate, modify, make derivative works from, transmit, publish, distribute, to incorporate in other works, publicly perform or display such Submitted Materials for any purpose using any form, media or technology now known or later developed without providing compensation to you or anyone else, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of Smart Serve
Smart Serve is not responsible for maintaining any Submitted Materials that you submit, nor is Smart Serve responsible for any information included in any Submitted Materials and Smart Serve may delete or destroy any such Submitted Materials at any time.
10. No Advice
The Websites and the Content are for informational, training, and demonstrative purposes only, and may not be relied upon as professional, legal, or other advice. You are responsible for obtaining appropriate advice from external sources prior to acting upon any information available at or through the Websites and the Website.
12. Other sites
While the Websites may contain links to third party sites (“Linked Sites”), Smart Serve is not responsible for the content of any Linked Sites. Smart Serve provides links to Linked Sites as a convenience only. Smart Serve makes no representation or warranty regarding any Linked Sites or their content, and does not endorse any Linked Sites or any information, or products or services appearing, available or described thereon. Links to Linked Sites do not imply that Smart Serve sponsors, endorses, is affiliated or associated with, the Linked Sites, or is legally authorized to use any content displayed in or accessed through the links to the Linked Sites. When you access such Linked Sites, you are doing so at your own risk and are subject to the terms and conditions of use of the Linked Sites in question.
YOUR USE OF THE WEB SITES IS AT YOUR OWN RISK. THE WEB SITES AND THEIR CONTENT ARE PROVIDED ON AN “AS IS” BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS OF OR RELATING TO UNINTERRUPTED OR ERROR FREE OPERATION, FREEDOM FROM VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS, AVAILABILITY, ACCURACY, VERACITY, COMPLETENESS, CURRENTNESS, RELIABILITY, TIMELINESS, LEGALITY, SUITABILITY, PRIVACY, SECURITY, MERCHANTABILITY, QUALITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY SMART SERVE AND SMART SERVE’S PROVIDERS OR SUPPLIERS TO THE FULLEST EXTENT PERMITTED BY LAW.
YOU (AND NOT SMART SERVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION TO ANY EQUIPMENT ARISING FROM OR CONNECTED TO YOUR ACCESS TO THE WEB SITES AND THE WEB SITE.
14. Liability Limitations
IN NO EVENT WILL SMART SERVE, ITS AFFILIATES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS OR EMPLOYEES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE AND EXEMPLARY DAMAGES OR LOSSES, HOWSOEVER CAUSED, ARISING FROM, CONNECTED WITH, OR RELATING TO THE WEB SITES, ACCESS TO AND USE OF THE WEB SITES, OR THIS AGREEMENT INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, LOST PROFITS OR LOST SAVINGS, OR RESULTING FROM VIRUSES, DATA CORRUPTION, FAILED MESSAGES, TRANSMISSION ERRORS OR PROBLEMS, LINKS TO THIRD-PARTY WEBSITES, THIRD-PARTY CONTENT, USER CONTENT, PRODUCTS OR SERVICES, THE USE OR INABILITY TO USE THIS WEBSITE OR THE CONTENT UNDER ANY THEORY OF LIABILITY (WHETHER ON A CONTRACTUAL OR EXTRACONTRACTUAL BASIS, TORT, STRICT LIABILITY OR ANY OTHER THEORY OR LAW OR EQUITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING AND FUNDAMENTAL BREACH BY SMART SERVE OR ANY PERSON FOR WHOM SMART SERVE IS RESPONSIBLE EVEN IF SMART SERVE OR ITS AFFILIATES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
SMART SERVE IS NOT RESPONSIBLE FOR ANY CONTENT THAT YOU MAY FIND UNDESIRABLE OR OBJECTIONABLE.
You agree to indemnify, defend and hold harmless Smart Serve and all of its agents, directors, employees, information providers, licensors and licensees, officers and all other related, associated, or connected individual or corporate parties (collectively, the “Indemnified Parties”) from and against any and all actions, proceedings, costs, claims damages, demands, liabilities and costs, including without limitation reasonable legal fees and expenses, sustained and/or incurred by the Indemnified Parties, directly or indirectly arising out of or connected to your use of the Websites or the Content in breach of this Agreement, your violation or infringement of the rights of others, and/or your violation of any applicable laws. You will assist and co-operate as fully as reasonably required by Smart Serve in the defence of any such claim or demand.
16. Linking and Framing
Links to Websites without the express written permission of Smart Serve are strictly prohibited. To request permission to link to the Websites, please contact Smart Serve’s webmaster at email@example.com. Smart Serve reserves the right to summarily cancel and revoke at any time and without notice any permission it may give to link to Websites.
The framing of Websites or any of the Content in any form and by any method is strictly prohibited.
17. Comments and Unsolicited Ideas
Smart Serve welcomes your comments regarding Websites (“Comments”). Any Comments you may submit are subject to the terms referenced below.
By submitting any Comments to Smart Serve, to the Websites, you automatically grant (or warrant that the owner of the Comments grants) to Smart Serve a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display the Comments or any ideas, concepts, know-how or techniques associated with the Comments for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or anyone else, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of Smart Serve, and you warrant and represent that all moral rights in the Comments are waived.
18. Jurisdictional Issues
The Websites are controlled by Smart Serve from its offices in Toronto, Ontario, Canada. Access to the Websites from locations where the Content is illegal is prohibited. If you are accessing Websites from other locations, you must comply with all laws applicable in your jurisdiction.
19. Termination of this agreement
If you breach any provision of this Agreement, Smart Serve may prohibit you from using the Website and/or the Websites. Smart Serve may, at any time without notice or liability, and for any reason whatsoever, terminate, change, suspend or discontinue any aspect of the Website and/or the Websites, or any part thereof, including i) changing the availability of, restricting access to, or imposing limits on any or all features or services on, or links to, the Website and/or the Websites; ii) removing, adding, modifying or otherwise changing any Content on the Website and/or the Websites. Smart Serve reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Website and/or the Websites at any time without notice, but confirms that it has no obligation to do so.
20. Governing Law and Dispute Resolution
This Agreement, your use of the Websites and their Content, and all matters relating thereto are governed by the laws of the Province of Ontario, Canada and the federal laws of Canada, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws.
Any dispute between Smart Serve and you arising from or relating to Websites or the Content or this Agreement shall be resolved before the Courts of the Toronto, Canada sitting in the City of Toronto, and you hereby irrevocably submit to the original and exclusive jurisdiction of those Courts in respect of any such dispute.
21. Contact Us
If you have any comments or questions about this Agreement or your use of the Website and/or the Websites, please contact Smart Serve at firstname.lastname@example.org.
If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed to be severable from the rest of the Agreement and shall not affect the validity and enforceability of any remaining provisions.
No waiver by either party of any breach of or default under this Agreement shall be deemed to be a waiver of any preceding or subsequent breach or default.
This Agreement, including any changes made to this Agreement from time to time, constitutes the entire agreement between you and Smart Serve relating to your use of Websites and supersedes all previous agreements, written, oral or otherwise, between the you and Smart Serve with respect to your use of Websites and the Content. This Agreement does not vary, alter, modify or otherwise affect any other more specific agreements between you and Smart Serve regarding other matters.
Any rights not expressly granted by this Agreement are reserved to Smart Serve
Last Updated: March 2011