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Updated as of April 10, 2017.Welcome to the Guy Spy® (“GuySpy “, “We”, “Our”) mobile device or web software application (the “GuySpy Software”).
By accessing, browsing, downloading, or otherwise using the GuySpy Software, this site, any associated voice chat service, other linked or associated sites, any web widgets, feeds or applications, any associated mobile phone SMS or premium SMS service (“Mobile Services”) or any other mobile or web services or applications owned, controlled, operated or offered by the following entities (collectively, the “GuySpy Services”): GuySpy or any of its directors, officers, employees, contractors, agents, affiliates, successors, assigns or valid licensees or sub-licensees, including, but not limited to, Pink Triangle Press, which owns, controls and operates GuySpy, or any of the directors, officers, employees, contractors, agents, affiliates, successors, assigns or valid licensees or sub-licensees of Pink Triangle Press (collectively the “Company”)., or by otherwise signing up a subscriber, a member or a trial member of any of the GuySpy Services, or by consenting to receive communications from GuySpy and its authorized representatives, you are explicitly agreeing to all of the terms and conditions of this User Agreement. Subscribers, customers, users, and others who access, download, use, purchase and/or subscribe to the GuySpy Services (collectively or individually “You”, “Your”, “Yours”, “User” or “Users”) hereby agree as follows:
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND THE COMPANY. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
The Company may be contacted in relation to the GuySpy Services at:
PINK TRIANGLE PRESS
2 Carlton Street, Suite 1600
Toronto, Ontario, Canada, M5B 1J3
THE GUYSPY SERVICES ARE AVAILABLE FOR INDIVIDUALS AGED 18 YEARS OR OLDER. NO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS MAY DIRECTLY OR INDIRECTLY VIEW, POSSESS OR OTHERWISE USE THE GUYSPY SERVICES.
By accessing, downloading, or using the GuySpy Services, You represent and warrant to the Company that You are at least eighteen (18) years of age and that You have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
By using the GuySpy Services, you represent and warrant to the Company that you have never been convicted of an indictable offense or felony and/or are not required to register as a sex offender with any government body. THE COMPANY DOES NOT CURRENTLY CONDUCT CRIMINAL BACKGROUND SCREENINGS ON USERS. YOU ARE SOLELY RESPONSIBLE FOR TAKING PRUDENT SAFETY PRECAUTIONS AND APPROPRIATE MEASURES WITH YOUR USE OF THE GUYSPY SERVICES. WE ARE NOT RESPONSIBLE FOR THE LEGAL EFFECT OF YOUR USE OF THE SERVICES OR THE ACTIONS OF OTHER USERS WITH WHOM YOU MAY EXCHANGE INFORMATION.
RIGHT OF USE
Your right to use the GuySpy Services is subject to any limitations, conditions, and restrictions established by the Company from time to time, in the Company’s sole discretion. The Company may alter, suspend or discontinue any aspect of the GuySpy Services at any time, including the availability of any feature, database, or content. The Company may also impose limits on certain features and aspects of the GuySpy Services or restrict Your access to parts or all of the GuySpy Services without notice or liability.
You acknowledge and agree that if you have subscribed to any of our paid services, and if the location indicated in your primary profile is outside of Canada, then you are prohibited from using or accessing any paid functions of the GuySpy Services at any time while visiting Canada, its possessions or territories.
THE GUYSPY SERVICES ARE INTENDED ONLY FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE GUYSPY SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. AS WITH ALL MOBILE DEVICE OR APPLICATION USAGE, YOU ARE RESPONSIBLE TO ENSURE THAT YOUR USAGE DOES NOT COMPROMISE YOUR PERSONAL SAFETY AND WELL-BEING. THE APPLICATION OF COMMON SENSE BY THE USER IS PARAMOUNT.
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY HAS OFFERED THE GUYSPY SERVICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH BELOW. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE COMPANY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY. THE COMPANY WOULD NOT BE ABLE TO PROVIDE THE GUYSPY SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
PRIVACY AND USE OF INFORMATION
- the Company is not responsible for, and cannot control, the use by others of any information which You provide while using the GuySpy Services and You should use caution in selecting the personal information You provide to others through the GuySpy Services;
- some Users of the GuySpy Services may, without authority and in contravention of this agreement, make recordings of You and/or any information that You may provide, and You agree to release the Company from any and all liability in connection with the use of any such recordings by other parties; and
- the Company cannot assume any responsibility for the content posted by other Users of the GuySpy Services, and You further agree to release the Company from any and all liability in connection with the content of any communications You may receive or view from other Users.
MODIFICATION OF THIS AGREEMENT
AUTHORIZATION TO COMMUNICATE AND CONTACT, NOTICE OF CARRIER CHARGES AND RELEASE
By downloading and using the GuySpy Services, You are explicitly agreeing to permit other Users and the Company to communicate with You by various means, including any email, voice, or mobile messaging, enabled by Your mobile device. This consent may be in place of, or in addition to, any specific opt-in actions or consents required or which You may provide in respect of Your consent to be contacted by the Company or by other Users.
You acknowledge and accept that the use of the GuySpy Services and the sharing of messages with other Users and the Company may result in charges, such as message and data rates as well as access charges, being applied directly to Your wireless account by Your wireless telecommunication service provider (“Carrier”) or may be deducted from Your account. In addition to all other terms and conditions set out herein, Your dealings with any Carrier in connection with the GuySpy Services or any part thereof, are solely between You and the Carrier. The Company shall not be responsible or liable for any part of any such dealings.
OWNERSHIP; PROPRIETARY RIGHTS
The GuySpy Services are owned and operated by the Company. The GuySpy Software, as well as all other aspects of the GuySpy Services and all associated content, visual interfaces, information, graphics, design, compilation, computer code, products, software, and services, including, but not limited to, the mobile or web device applications (collectively, the “Materials”) are protected by applicable international copyright, trade, patent, and trademark laws and conventions, and all other relevant intellectual property and proprietary right laws. All Materials contained in the GuySpy Services are the property of the Company and/or third-party licensors. All trademarks, service marks, and trade names displayed on the GuySpy Services are proprietary to the Company or its affiliates and/or third-party licensors. Except as expressly authorized by the Company, You agree not to sell, licence, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
USAGE RULES; PROHIBITED CONDUCT & USES
YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU MAY NOT AND WARRANT THAT YOU WILL NOT:
- use the GuySpy Services or any location information displayed within the GuySpy Services to stalk, harass, abuse, defame, threaten, or defraud other Users, or collect, attempt to collect, or store location or personal information about other Users;
- use the GuySpy Services if You are under the age of 18 years old;
- depict or describe any person on the GuySpy Services as being under 18 years old, regardless of whether or not they are over 18 years old;
- include offensive, objectionable, or pornographic materials in Your GuySpy Services personal profile page;
- use the GuySpy Services for any commercial use, it being understood that the GuySpy Services are for personal, non-commercial use only;
- use, encourage or suggest to others to use the GuySpy Services for any illegal or criminal purpose, or in violation of any local, provincial, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control;
- make unsolicited offers, advertisements, proposals, or send junk messages or spam, to other Users of the GuySpy Services. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures. You acknowledge that, if You do, You will have caused the Company substantial harm, which can reasonably be measured at a minimum amount of $100 (Canadian Funds), or its equivalent, for each unsolicited communication that You send;
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the GuySpy Services accounts of other Users;
- misrepresent the source, identity or content of information transmitted via the GuySpy Services;
- remove, circumvent, disable, damage, or otherwise interfere with security-related features of the GuySpy Services, features that prevent or restrict use or copying of any content accessible through the GuySpy Services, or features that enforce limitations on use of the GuySpy Services;
- intentionally interfere with or damage operation of the GuySpy Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, time bombs, cancelbots, Trojan horses, or other malicious code;
- post, record, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, libelous, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, ageist or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
- record, reproduce, post or distribute any audio, visual or video communications between You and another User, including any messages, pictures or recordings You obtained from the GuySpy Services or Your use of the GuySpy Services;
- post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
- use the GuySpy Services with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
- use the GuySpy Services in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the GuySpy Services could lead directly to death, personal injury, or severe physical or property damage;
- attempt to gain unauthorized access to the GuySpy Services, or any part of it, other accounts, computer systems or networks connected to the GuySpy Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the GuySpy Services or any activities conducted on the Company;
- use any robot, spider, scraper or other automated means to access the GuySpy Services for any purpose without Our express written permission or bypass Our robot exclusion headers or other measures we may use to prevent or restrict access to the GuySpy Services or modify the GuySpy Services in any manner or form, nor to use modified versions of the GuySpy Services, including (without limitation) for the purpose of obtaining unauthorized access to the GuySpy Services;
- use the GuySpy Services to post information, advertisements, communications or pictures for the purposes of interference or entrapment by law enforcement or security agencies, media, or any other person or agency; and
- advertise or otherwise offer the sale of sexual services in exchange for money, goods or services on the GuySpy Services.
The GuySpy Services allow the submission of content and materials (such as photos, videos, voice/audio, profiles, comments, reviews, ratings, ideas, notes, concepts, location data or creative suggestions) by You and other Users (“User Submissions”), and the hosting, sharing, and/or publishing of such User Submissions. You acknowledge that what You submit as User Submissions will become available to the public. You shall be solely responsible for Your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, You affirm, represent, and warrant that: (i) You own, or have the necessary licenses, rights, consents, and permissions to use, and authorize the Company to use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the GuySpy Services and this Agreement; and (ii) You have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the GuySpy Services and this Agreement. For clarity, the Company claims no ownership rights over User Submissions created by You. The User Submissions You create remains Yours; however, by sharing User Submissions through the Service, You agree to allow others to view, edit, and/or share Your User Submissions in accordance with Your settings and this Agreement.
You understand that when using the GuySpy Services You will be exposed to User Submissions from a variety of sources, and that the Company is not responsible for the accuracy, usefulness, safety, or intellectual property or other proprietary rights of, or relating to, such User Submissions. You further understand and acknowledge that You may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST THE COMPANY WITH RESPECT THERETO.
The Company assumes no responsibility whatsoever in connection with or arising from User Submissions. The Company assumes no responsibility for actively monitoring User Submissions for inappropriate content. If, at any time, the Company chooses, in its sole discretion, to monitor User Submissions, the Company nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, the Company does not endorse, and has no control over, the content of User Submissions submitted by other Users. The Company makes no warranties, including all implied warranties of merchantability and fitness for a particular purpose, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, the Company reserves the right to prevent You from submitting User Submissions and to edit, restrict, or remove User Submissions for any reason at any time.
USAGE; REFUSAL OR SUSPENSION OF SERVICE
THE COMPANY RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ALL OR PART OF THE USER SUBMISSIONS, REGISTRATION OR USAGE, AS WELL AS ANY USER’S USE OF, OR ACCESS TO, THE LOCATION INFORMATION AND PROFILES OF OTHER USERS. ACCORDINGLY, THE COMPANY ALSO RESERVES THE RIGHT TO DISABLE ANY USER’S USE OF, OR ACCESS TO, THE GUYSPY SERVICES AND THE LOCATION INFORMATION OR PROFILES OF OTHER USERS, FOR ANY REASON AND WITHOUT ANY NOTICE.
The Company does not control the content of User accounts and profiles and does not have any obligation to monitor such content for any purpose. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT AND MATERIAL THAT YOU PROVIDE TO THE GUYSPY SERVICES.
The GuySpy Services are used by a large number of Users from a broad range of cultures and lifestyles, some of which may differ significantly from Your own. You understand that by using the GuySpy Services, You may encounter content from other Users that may be offensive, indecent, or objectionable to Your personal views or standards and may include explicit or suggestive language.
PLEASE NOTE: THE COMPANY RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER, FOR ANY REASON AND WITHOUT ANY NOTICE.
INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHT INFRINGEMENT NOTICE
You must notify the Company as soon as possible, if You believe that content on the GuySpy Services infringes Your intellectual property or other proprietary rights. Your notification must provide enough detail for the Company to easily locate the content in question, and provide the Company with Your contact information. You must actually hold said rights to the material allegedly being infringed. The Company will investigate the notification, as required by law, and take the appropriate action.
THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
The GuySpy Services may include links to other sites or services solely as a convenience to Users. The Company does not endorse any such linked sites or the information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, The Company makes no express or implied warranties, including all implied warranties of merchantability and fitness for a particular purpose, with regard to the information, material, products, or services that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products, and services on linked sites or available through linked sites is solely at Your own risk.
YOUR CORRESPONDENCE OR BUSINESS DEALINGS WITH, OR PARTICIPATION IN PROMOTIONS OF, ADVERTISERS FOUND ON OR THROUGH THE GUYSPY SERVICES ARE SOLELY BETWEEN YOU AND SUCH ADVERTISER. YOU AGREE THAT THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE GUYSPY SERVICES.
END USER LICENSES
LICENSE GRANT, RESTRICTIONS AND UPGRADES. To use the GuySpy Services, You must have a device that is compatible with the GuySpy Services. The Company does not warrant that the GuySpy Services will be compatible with Your device, mobile or otherwise.
License Grant. The Company hereby grants You a non-exclusive, non-transferable, revocable license to use a compiled code copy of the GuySpy Services.
Restrictions. You may not: (i) modify, disassemble, decompile, or reverse engineer the GuySpy Services, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the GuySpy Services to any third party, or use the GuySpy Services to provide time sharing or similar services for any third party; (iii) make any copies of the GuySpy Services; (iv) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the GuySpy Services, features that prevent or restrict use or copying of any content accessible through the GuySpy Services, or features that enforce limitations on use of the GuySpy Services; or (v) delete the copyright and other proprietary rights notices on the GuySpy Services.
Software Upgrades. You acknowledge that the Company may from time to time issue upgraded versions of the GuySpy Services, and may automatically electronically upgrade the version of the GuySpy Services that You are using on Your device. You consent to such automatic upgrading on Your device, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
Open Source. With respect to any open source or third-party code that may be incorporated in the GuySpy Services, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
Rights Reserved. The foregoing license grant under this Agreement is not a sale of the GuySpy Services or any copy thereof and the Company or its third party partners or suppliers retain all right, title, and interest in the GuySpy Services (and any copy thereof). Any attempt by You to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. The Company reserves all rights not expressly granted under this Agreement.
Trademarks, Service Marks, and Logos. The name of this website is a service mark of the Company. No use of this mark shall be permitted except through the prior written authorization and permission of the Company. All rights reserved.
You agree that the Company, in the good faith belief that You have violated any of the terms and conditions of this Agreement, may terminate any account or subscription (or any part thereof) You have with the Company or the use of the GuySpy Services by You and remove and discard all or any part of Your account or any User Submission, at any time. You agree that any termination of Your access to the GuySpy Services or any account You may have or portion thereof may be effected without prior notice, and You agree that the Company will not be liable to You or any third-party for any such termination. The Company does not permit copyright, or other intellectual property or other proprietary right, infringing activities on the GuySpy Services, and reserves the right to terminate access to the GuySpy Services, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Your use of the GuySpy Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies the Company may have at law or in equity.
DISCLAIMERS; NO WARRANTIES
THE GUYSPY SERVICES AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE GUYSPY SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. GUYSPY, AND ITS SUPPLIERS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
THE COMPANY AND ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE GUYSPY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE GUYSPY SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
GUYSPY, AND ITS SUPPLIERS AND PARTNERS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY LOCATION INFORMATION OR THE GUYSPY SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT THE COMPANY OR ITS SUPPLIERS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION RELATED TO THE GUYSPY SERVICES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE GUYSPY SERVICES AT YOUR OWN DISCRETION AND RISK.
CERTAIN LAWS APPLICABLE OUTSIDE OF CANADA DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify, defend, and hold the Company, and its suppliers and partners harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, arising out of or related to (a) Your use or misuse of any location information or the GuySpy Services generally, (b) any violation of the rights of any other person or entity by You, (c) any breach or violation by You of this Agreement, or (d) Your use of the GuySpy Services to meet another User in-person or to locate and attend any offline place or event. The Company reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify the Company and You agree to cooperate with Our defense of these claims.
LIMITATION OF LIABILITY AND DAMAGES
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WILL THE COMPANY OR ITS THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION INFORMATION; (B) YOUR USE OR INABILITY TO USE THE GUYSPY SERVICES; (C) THE GUYSPY SERVICES GENERALLY OR THE COMPANY SOFTWARE OR SYSTEMS THAT MAKE THE GUYSPY SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH THE COMPANY OR ANY OTHER USER OF THE GUYSPY SERVICES, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
WITHOUT LIMITING THE APPLICABILITY OF THE PRECEDING PARAGRAPH, IN NO EVENT SHALL GUYSPY’S (OR ITS SUPPLIERS, OR THIRD-PARTY PARTNERS) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE GUYSPY SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), WARRANTY, OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE GUYSPY SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE THOUSAND DOLLARS, WHICHEVER IS LESS.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN THE COMPANY AND RECEIVED THROUGH OR ADVERTISED ON THE GUYSPY SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE GUYSPY SERVICES.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT GUYSPY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
GOVERNING LAW AND ARBITRATION
Governing Law. This Agreement shall be governed by the laws of the Province of Ontario or Canada (in respect of any federal matters), without respect to its conflict of laws principles. Any arbitration conducted pursuant to the terms of this Agreement shall be governed by Ontario’s Arbitration Act, 1991, S.O. 1991, c. 17. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the Ontario Superior Court of Justice, Toronto, or the Federal Court of Canada, Toronto for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of Our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE COMPANY. In the unlikely event that the Company has not been able to resolve a dispute it has with You after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any the Company claims for injunctive or other equitable relief) arising out of or in connection with or relating to this User Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the Judicial Mediation and Arbitration Services (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in Toronto, Ontario, Canada, unless You and the Company agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing the Company from seeking injunctive or other equitable relief from the courts as necessary to protect any of the Company’s proprietary interests.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS USER AGREEMENT, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE GUYSPY SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Severability; Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
Notices. The Company may provide You with notices, including those regarding changes to this Agreement, through any appropriate channel consistent with the GuySpy Services.
Assignment. This Agreement and related policies and guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned or transferred by the Company without restriction.
Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification hereby survive any termination of this Agreement or any termination of Your use of or subscription to the GuySpy Services.
Headings; The heading references herein are for convenience purposes only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
Entire Agreement. This is the entire agreement between You and the Company relating to the subject matter herein.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.