Terms and Conditions

Terms and Conditions

Date of Last Revision: August 4, 2019

These Terms and Conditions (“Terms” or “Agreement”) and any other documents referenced within it applies to this Site, Service, Platform, all Communications, Software Solutions and Products or the mobile versions thereof offered by Nixtan Technology Solutions (“Nixtan” or the “Company”) and our third party providers (“we”, “us” and “our”). By using or accessing this Site, Service, Platform, Communicating with us or our partners or in using all Software Solutions and Products offered by Nixtan, you are accepting and consenting to the practices described.

Services Agreements and additional policies apply to certain Services and are in addition to (not in lieu of) this Agreement. In the event of a conflict between the provisions of a Services Agreement and the provisions of this Agreement, the provisions of the applicable Services Agreement shall control.

As a condition of entering into this Agreement, you represent and warrant that: (a) you agree to be bound by the terms and conditions of any written agreement between you and us, under the terms and conditions for which you may use certain products or services offered by us to your customers on a non-exclusive basis, or if you have not entered into such an agreement, then the Terms and Conditions set out at: nixtan.com/company/terms/ (the applicable agreement in either case, the “Terms and Conditions”); (b) you will comply with this Agreement; (c) you possess the legal authority to create a binding legal obligation; and (d) if you are using on behalf of another person or a corporate entity, you have the authority to bind such person or entity to this Agreement.

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.

  1. Definitions
    1. “Business Day” means any day other than a Saturday or a Sunday or a day which is a statutory holiday in Saskatoon, Saskatchewan.
    2. “Standard Business Hours” means 9:00 a.m. to 4:00 p.m. on any Business Day.
    3. “CASL” means An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (Canada).
    4. “Nixtan”, “we”, “our”, or “us” means: Nixtan Technology Solutions and our third party providers.
    5. “Customer” means an individual or legal entity that obtains or uses the Solutions from the Nixtan Partner or visits the Site.
    6. “Nixtan Partner”, “you”, or “yours” means clients of Nixtan offering or using our Site, Service, Products, Platform and Solutions to or with its customers pursuant to these Standard Terms.
    7. “Authorized Users” means individuals who are directly accessing the Services via an online sign-up process, or individual users authorized by you to use the Services and who you have supplied user identifications and passwords to. Authorized Users may include your employees, consultants, contractors, agents, or your other designees, but shall not include any employee or agent of any Nixtan competitor.
    8. “Seat” means a single subscription associated with a single login to Services, assigned to one Authorized User.
    9. “Services” means services provided to you by Nixtan based on the plan you have purchased either through an online transaction or via written agreement.
    10. “Supported Platform(s)” means the social networking site(s) currently supported by the Services, including Twitter, Facebook, LinkedIn, Instagram, and other social networking sites as described via the Site.
    11. “Claim” has the meaning set forth in the Indemnification section of these Standard Terms.
    12. “Data” means any information provided by Nixtan through its Software including but not limited to business information, Name, Address, Phone number, other business information, and on-line reviews, social comments and information obtained by Nixtan through various agreements and sources.
    13. “Documentation” means works of authorship that Nixtan makes generally available for Nixtan Partner use with the Solutions and that comprises either (i) instructions for a Solution’s use, or (ii) descriptions of a Solution’s operational and/or design characteristics.
    14. “Confidential Information” means technical and business information, programming, software code, trade secrets, marketing strategies, software, documentation, financial information and any other information of a Party which in the circumstances of its disclosure could reasonably be viewed as confidential to the disclosing Party. Confidential Information of a Party shall not include information that:
      1. is or becomes a part of the public domain through no act or omission of a receiving Party
      2. was in a receiving Party’s lawful possession prior to the disclosure and had not been obtained by a receiving Party either directly or indirectly from a disclosing Party
      3. is lawfully disclosed to a receiving Party by a third party without restriction on disclosure
      4. is Customer or Nixtan Partner data
      5. is independently developed by a receiving Party, without reference to Confidential Information of a disclosing Party, provided that the foregoing shall not be deemed to permit use or disclosure of information in breach of applicable law.
    15. “Effective Date” means the date of the applicable Terms and Conditions as indicated on the first page thereof.
    16. “Indemnifying Party” has the meaning set forth in the Indemnification Section of these Standard Terms.
    17. “Party” or “Parties” means Nixtan and the Nixtan Partner.
    18. “Agreement” or “Standard Terms” means these Terms and Conditions and any additional terms agreed to in writing by both Parties via amendment or in addition to these terms.
    19. “Termination” means the discontinuation of any agreement, subscription, service, product or relationship with Nixtan.
    20. “Primary Function” means an essential function of the Nixtan Solution.
    21. “Scheduled Maintenance” has the meaning set forth in the Scheduled Maintenance section of these Standard Terms.
    22. “Secondary Function” means a function that does not represent an essential function of a Solution (e.g. problem accessing user interface, data feed delay/accuracy/completeness of feed).
    23. “Solutions” or “Products” means our Site, Platform and all Services, Software and Products offered by Nixtan Technology Solutions.
    24. “Tier 1 Support” has the meaning set forth in the Support Section of these Standard Terms.
    25. “Tier 2 Support” has the meaning set forth in the Support Section of these Standard Terms.
    26. “Workaround” means a feasible change in operating procedures whereby an end-user can avoid the deleterious effects of a non-conformance without material inconvenience.
  2. Rules of Interpretation
    1. Currency – Unless otherwise specified, all references to money amounts are to the lawful currency of the United States (“USD”) or Canada (“CAD”). All pricing is in USD unless specified otherwise.
    2. Headings – Headings of articles and sections are inserted for convenience of reference only and do not affect the construction or interpretation of these Standard Terms.
    3. Including – Where the word “including” or “includes” is used in these Standard Terms, it means “including (or includes) without limitation”.
    4. Number and Gender – Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
    5. Severability – If, in any jurisdiction, any provision of these Standard Terms or its application to any party or circumstance is restricted, prohibited or unenforceable, such provision is, as to such jurisdiction, ineffective only to the extent of such restriction, prohibition or unenforceability without invalidating the remaining provisions of these Standard and without affecting the validity or enforceability of such provision in any other jurisdiction or without affecting its application to the other Party or circumstances.
    6. Statutory references – A reference to a statute includes all regulations made pursuant to such statute and, unless otherwise specified, the provisions of any statute or regulation that amends, supplements or supersedes any such statute or any such regulation.
    7. Time – Time is of the essence in the performance of the Parties’ respective obligations.
    8. Time Periods – Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done are calculated by excluding the day on which the period commences and including the day on which the period ends and by extending the period to the following Business Day if the last day of the period is not a Business Day.
  3. Eligibility. Membership in the Service is void where prohibited. This Site is intended solely for users who are eighteen (18) years of age or older. Any registration by, use of or access to the Site by anyone under 18 is unauthorized, unlicensed and in violation of these Terms and Conditions. By using the Service or the Site, you represent and warrant that you are 18 or older and that you agree to and abide by all of the terms and conditions of this Agreement.
  4. Access. You may use the Site solely to browse, locate, or select for distribution certain Products. Some of these Products may be offered by Nixtan while others may be made available by Third Party Providers not affiliated with Nixtan (“Third Party Providers”). You will ensure that you and your customers comply with:
    1. The obligations and restrictions set out in any terms and conditions applicable to the Products made available by Nixtan, including the Nixtan Terms and Conditions applicable to our Products located at nixtan.com/company/terms; and
    2. the obligations and restrictions set out in any terms and conditions applicable to the Products made available by the Third Party Providers. You agree that Nixtan is not responsible for any Product on the Site that originates from a source other than Nixtan, including from Third Party Providers.
  5. Services. During the Term, subject to the terms and conditions of this Agreement, and solely for your personal or internal business purposes, Nixtan grants you and your Authorized Users a right to access and use our Services for the number of Seats purchased, and support, if applicable, in accordance with the plan you selected.
  6. Updates and Functionalities. You acknowledge that from time to time Nixtan may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, Nixtan shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). You acknowledge that the Services interoperate with several Supported Platforms, and that the Services provided are highly dependent on the availability of such Supported Platforms. If at any time any Supported Platforms cease to make their programs available to Nixtan on reasonable terms (each an “API Change”), Nixtan may cease to provide such features to you without entitling you to refund, credit, or other compensation.
  7. Termination.
    1. You must not access the Site or accept the terms of this Agreement if you are a person who is either barred or otherwise legally prohibited from using the Site or any Products under the laws of the country in which you are resident or from which you use the Site. If you violate any of the terms and conditions of this Agreement, your rights under this Agreement will immediately terminate and we may terminate your access to the Site or the Products without notice and without refund to you. Your access to the Site will terminate in accordance with the Terms and Conditions, including upon the termination or expiry of the Agreement. Notwithstanding the foregoing, we reserve the right, at our sole discretion, to limit or deny you access to or use of the Site or the Products, at any time and for any reason, including for violation of this Agreement. You will cease and desist from any such access or use immediately upon request by us. If we disable access to your account, you may be prevented from accessing the Site, your account details or any files or other Products that are associated with your account. Such termination of the Service will result in the deactivation or deletion of your account or your access to your account, and the forfeiture and relinquishment of all content in your account. Nixtan reserves the right to refuse service to anyone for any reason at any time.
    2. You are solely responsible for properly cancelling your account. All of your content will be immediately deleted from the service upon cancellation. This information can not be recovered once your account is cancelled. Nixtan does not accept any liability for loss of content due to account cancellation. If you cancel the service before the end of your current paid-up month, your cancellation will take effect immediately and you will not be charged again.
  8. Payment, Pricing, Refunds and Upgrading.
    1. The Site may display pricing for Products. Pricing and availability of all Products are subject to change at any time. The payment for Products available on the Site and selected for purchase via the Site will be made directly to us. The payment terms and conditions in respect of such Products are set out in these terms.
    2. A valid credit card is required for paying accounts.
    3. If you initially sign up for an account, and you don’t cancel that account within 30 days, you will be billed monthly starting on the 30th day after your account was initially created. If you cancel prior to the processing of your first invoice on the 30th day, you will not be charged.
    4. An upgrade from a free trial plan to any paying plan may end your free trial. You may be billed for your first month immediately upon upgrading.
    5. The Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds for partial months or years of service, or for months or years unused with an open account. In order to treat everyone equally, no exceptions will be made.
    6. For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle.
    7. You agree that Nixtan has permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms Nixtan retains in the future) your submitted payment information in order to process your purchase. Depending on where you transact with us, the type of payment method used and where your payment method was issued, your transaction with us may be subject to foreign exchange fees or differences in prices, including because of exchange rates. Nixtan does not support all payment methods, currencies, or locations for payment. If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel or downgrade your account to a charge-free account, you authorize Nixtan to continue billing your credit card and/or PayPal account and you remain responsible for any uncollected amounts. All applicable taxes are calculated based on the billing information you provide us at the time of purchase.
    8. If you sign up for a free trial period for a Service that is subject to charges (the “Free Trial”), we may require you to provide us with a valid credit card or other valid payment method. We may start charging you automatically on the first day after the Free Trial is over, unless you cancel or downgrade to a charge-free Service and uninstall any Apps or other items, as required for cancellation, before the end of the Free Trial period. The Free Trial is only available to first time users of a paid Online Service.
    9. If you are purchasing Online Services on a subscription basis, you may have the option to purchase a monthly or a yearly subscription, which will automatically renew at the end of its applicable term. Subscriptions are billed in advance on a monthly or yearly basis (as per the option chosen when you purchased such Online Services) and are non-refundable for the subscription period they are purchased for. You agree that Nixtan may process your credit card or other valid payment method on each monthly, annual, or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the first day you subscribed to Online Services. If your paid subscription to Online Services began on a day not contained in a subsequent month (e.g., your service began on January 30 and there is no February 30), we will process your payment on the last day of such month. You may elect to cancel or downgrade your Online Services at any time by following the steps outlined here. Online Services purchased for a one-time fee are not refundable.
    10. If any amounts due hereunder are not received by Nixtan by the due date, then at Nixtan’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 10 days’ written notice, Nixtan may suspend your access to the Services if Nixtan does not receive the amounts invoiced hereunder at the expiration of such period.
  9. Rights and Restrictions
    1. Distribution of the Products. Under the terms and conditions set out herein, you will have the non-exclusive right to distribute the Products solely as expressly permitted by us or the Third Party Provider and subject to the restrictions set forth herein and associated terms and policies applicable to the Product. All rights, title and interest in the Site and Products not expressly granted to you in this Agreement are reserved by us and our licensors or the Third Party Providers. Except as set out herein, you may not sell, rent, lease, redistribute, broadcast, transmit, communicate, modify, sublicense or transfer or assign your rights to the Site to any third party without our authorization, including with regard to any use of Products that you may obtain through the Site. We may assign this Agreement or any rights hereunder to any third party without your consent. Use of any tool or feature provided as an authorized part of the Site will not violate this provision so long as you use the tool as specifically permitted and only in the exact manner specified and enabled by the Site. In addition, you will not and will not permit any other person to (directly or indirectly) solicit, market, access or contact the Third Party Providers in efforts to purchase, distribute, resell, or market Products or products that are similar, complementary, related or enhancements to the Products directly or indirectly from such Third Party Providers.
    2. Security Features and Proprietary Notices. You may not attempt to, nor assist, authorise or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect any Product or the Site. You must not collect or harvest any personal data of any user of the Site, including account names and personal data of Third Party Providers. If you violate any security feature or attempt to collect or harvest any personal data of third parties, you may incur civil or criminal liability.
      You may not remove any watermarks, labels or other legal or proprietary notices included in the Site or any Product or Work, and you may not attempt to modify any Products obtained through the Site, including any modification for the purpose of disguising or changing any indications of the ownership or source of a Product.
    3. Removal or Unavailability of Products. Subject to this Agreement, Products available on the Site may only be available for a limited period time. In certain cases (for example, if we or our Third Party Provider loses the relevant rights, a Product is discontinued, or you breach applicable terms or the law), we may remove or cease providing you with access to certain Products that you have distributed. If reasonably practicable, we will provide you with reasonable prior notice of any such removal or cessation.
  10. Service Levels. The Parties agree to the following service level standards:
    1. Availability Uptime & Downtime. Nixtan shall ensure that all material elements of the Solutions as contemplated by the Agreement are available 95% of the time per calendar month, excluding downtime resulting from any of the following downtime exceptions:
      1. Scheduled Maintenance
      2. any problem with any system or technology not reasonably in Nixtan’s control or foreseeable by Nixtan, including without limitation, any problem associated with a user or end-user ISP, the Internet, or third-party service provider
      3. force majeure as described in the Standard Terms, or acts of any governmental body
      4. Nixtan Partner’s or a Customer’s negligent acts or omissions (or negligent acts or omissions of others engaged or authorized by Nixtan Partner)
      5. DNS propagation
      6. browser or DNS caching that may make the Solutions appear inaccessible when others can still access them
      7. misuse of the Solutions by Nixtan Partner or a Customer, or any use of the Solutions by Nixtan Partner or a Customer that is not in accordance with this Agreement or the agreement between the Nixtan Partner and the Customer; and
      8. failure by Nixtan Partner or a Customer to provide a suitable use environment for all or any part of the Solutions. Availability is defined as the ability of a Nixtan Partner or Customer to connect to and utilize a Solution. If a Solution is functioning in some areas and not functioning in others, the time of any such diminished functioning is not considered downtime and is excluded from the calculations of availability.
    2. Nixtan Partner Cooperation. Nixtan Partner shall provide Nixtan with reasonable access to individuals designated to Nixtan in writing to duplicate and resolve errors in the Solutions. Nixtan Partner shall endeavor to document and promptly report all errors or malfunctions in the Solutions. Nixtan Partner shall endeavor to carry out procedures to rectify errors or malfunctions in the Solutions within a reasonable time after such procedures have been received from Nixtan, except where such procedures require Nixtan Partner to expend any cost or expense.
    3. Change to Service Levels. Service levels shall be reviewed periodically. Service levels shall not be modified, nor shall any breach hereunder be waived, unless such modification and/or waiver is in writing. No course of dealings between the Parties shall be construed as a waiver of any subsequent breach or a modification hereof.
  11. Support. Nixtan Partner will be responsible for providing the first line of support for all Customers (“Tier 1 Support”), except when superseded by a separate support agreement. Where Nixtan Partner support staff is unable to resolve issues, Nixtan will provide support to Nixtan Partner staff (“Tier 2 Support”). Where required, Nixtan Partner will provide Customer contact details and authorize Nixtan to contact the Customer directly.
  12. Independent Contractors.Each Party to this Agreement is an independent contractor. This Agreement does not create any agency, partnership, joint venture, employment or franchisor or franchisee relationship. Furthermore, no labor relationship between Nixtan and Nixtan Partner employees is created hereby. Nixtan Partner will indemnify and hold Nixtan harmless of any Claim or judicial action whatsoever from any Nixtan Partner employee. Neither Party has the right or authority to, and will not, assume or create any obligation of any nature whatsoever on behalf of the other Party or bind the other Party in any respect whatsoever. Notwithstanding the use of the term “Nixtan Partner” in this Agreement, the Parties do not intend to create any legal relationship of partnership between them, and neither will assert to any third party or otherwise claim that such a legal relationship exists between them. For greater certainty, Nixtan shall not, and Nixtan Partner hereby acknowledges and agrees that Nixtan shall not, exercise any control over, or offer assistance in, Nixtan Partner’s method of operation, including locations, business organization, marketing techniques or training.
  13. Confidentiality
    1. During the term of this Agreement and for two (2) years thereafter, each Party will protect the terms and conditions and Confidential Information of the other Party as strictly confidential, using the same level of care as it affords its own Confidential Information, but in any event, at least reasonable care. Without the prior written consent of a disclosing Party, the Party receiving the Confidential Information of the disclosing Party and the receiving Party’s employees and representatives will not use or disclose to any other person or entity any Confidential Information of the disclosing Party, except as and only to the extent necessary to:
      1. perform its duties under the Terms and Conditions, including solicitation of sales;
      2. obtain any required governmental approvals; or
      3. comply with laws or as otherwise required by a court of competent jurisdiction, but only to the extent of such requirement: provided that before making such disclosure the reviewing party will give the disclosing party written notice of such disclosure and provide an adequate opportunity to interpose an objection or take action to ensure confidential handling of such Confidential Information.
    2. Each Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by it or its employees or agents in violation of the terms of the Terms and Conditions or applicable law, and each Party shall be liable for any such violation by its employees and agents.
    3. Each Party receiving Confidential Information agrees to return or destroy all copies of Confidential Information of the disclosing Party promptly upon a disclosing Party’s request at any time following termination and, if requested by the disclosing Party, an officer of the receiving Party shall provide a certificate, in form and content reasonably satisfactory to the disclosing Party, confirming that all Confidential Information has been returned or destroyed; provided, however, that notwithstanding the foregoing, either Party may retain one (1) copy of the Confidential Information of the other Party for the purposes of determining its legal obligations under the Agreement, and any Confidential Information of the other Party contained in back-up computer records or archives, provided that such copies are subject to the other provisions of the Agreement.
    4. The Parties acknowledge and agree that any breach of the terms of this Section will cause irreparable harm and damage to the aggrieved Party. The Parties further agree that each Party shall be entitled to injunctive relief to prevent breaches of this Section, and to specifically enforce the terms and provisions of this Section, in addition to any other remedy to which such Party may be entitled, at law or in equity.
  14. Account Security. In consideration of your use of the Site, you agree to:
    1. Provide accurate, current and complete information about you as may be prompted by any registration forms on the Site (“Registration Data”)
    2. Maintain the security of your password and identification
    3. Maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete
    4. Be fully responsible for all use of your account and for any actions that take place using your account.
  15. Proprietary Rights in Site Content; Limited License. All content on the Site and available through the Service, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the “Site Content”), are the proprietary property of The Company, its users or its licensors with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without The Company’s prior written permission, except that the foregoing does not apply to your own User Content (as defined below) that you legally post on the Site. Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Except for your own User Content, you may not upload or republish Site Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited. Such license is subject to these Terms and Conditions and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms and Conditions shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause.
  16. User Conduct. You represent, warrant and agree that:
    1. No materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through the Service will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. In addition, you agree not to use the Service or the Site to:
      1. Harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications
      2. Use the Service or the Site in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site
      3. Use automated scripts to collect information from or otherwise interact with the Service or the Site
      4. Upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable
      5. Upload, post, transmit, share, store or otherwise make available any videos other than those of a personal nature that: (i) are of you or your friends, (ii) are taken by you or your friends, or (iii) are original art or animation created by you or your friends
      6. Impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity
      7. Upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation
      8. Upload, post, transmit, share, store or otherwise make publicly available on the Site any private information of any third party, including, email addresses, Social Security numbers and credit card numbers in addition to all other items identified in our privacy policy (https://nixtan.com/company/privacy-policy/)
      9. Solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes
      10. Upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment
      11. Intimidate or harass another
      12. Upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law
      13. Use or attempt to use another’s account, service or system without authorization from the Company, or create a false identity on the Service or the Site
      14. Upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose Company or its users to any harm or liability of any type
    2. You agree to back-up all of your User Content so that you can access and use it when needed. Nixtan does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.
    3. You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
    4. You are aware that Nixtan may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether Nixtan asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which Nixtan is a party. Further, by providing your telephone or mobile number, you consent to receive marketing telephone calls from or on behalf of Nixtan that may be initiated by an automatic telephone dialing system and/or use an artificial or prerecorded voice. You understand that providing consent is not a condition of purchasing any good or service from Nixtan. Similarly, by providing your mobile number, you consent to receive marketing text messages from or on behalf of Nixtan that may be sent by an automatic telephone dialing system. You understand that providing consent is not a condition of purchasing any good or service from Nixtan. Message and data rates may apply.
    5. Nixtan expressly reserves the right to review every Account for excessive space and bandwidth utilization, and to terminate or apply additional fees to those Accounts that exceed allowed levels.
    6. You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.
    7. You acknowledge and agree that upon expiration or termination of your Hosting Services, you must discontinue use of the Hosting Services and relinquish use of the IP addresses and server names assigned to you in connection with Hosting Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Hosting Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, we will delete all such content and we will not be able to provide a copy of such content.
    8. The total amount of usable storage capacity for your particular Hosting Service(s) may differ from the represented capacity, as there is required space for the operating system(s), system file(s), and other supporting file(s).
    9. You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Hosting Services.
    10. WordPress Hosting may only be used to host a WordPress website. Only a single WordPress installation is allowed per website. Any WordPress hosting account found to be hosting a non-WordPress website may be issued a network violation warning and will be required to remove the non-WordPress website, or may be temporarily or permanently suspended, in our sole discretion. Additionally, you may be required to purchase an appropriate hosting plan in order to host the non-WordPress site should you wish to continue hosting the non-WordPress site on our network.
  17. User Content Posted on the Site. You are solely responsible for the photos, profiles (including your name, image, and likeness), messages, notes, text, information, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other users (collectively the “User Content”). You may not post, transmit, or share User Content on the Site or Service that you did not create or that you do not have permission to post. You understand and agree that the Company may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including User Content that in the sole judgment of the Company violates this Agreement, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to the Company.
    When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. The Company does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.
  18. Mobile Services. The Service includes certain services that are available via your mobile phone, including (i) the ability to upload content to Software solutions via your mobile phone (Mobile Uploads), (ii) the ability to receive and reply to messages, (iii) the ability to browse Software Solutions from your mobile phone (Mobile Web), and (iv) the ability to access certain Software Solution features through a mobile application you have downloaded and installed on your mobile phone (Mobile Client) (collectively the “Mobile Services”). We do not charge for these Mobile Services. However, your carrier’s normal messaging, data and other rates and fees will still apply. You should check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such Mobile Services. By using the Mobile Services, you agree that we may communicate with you regarding Software Solutions and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your old number.
  19. Copyright Complaints. We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting on any of our Solutions any materials that violate another party’s intellectual property rights. When we receive proper Notification of Alleged Copyright Infringement, we promptly remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers as described herein in accordance with the Digital Millenium Copyright Act (“DMCA”). If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement directly to us.
  20. Repeat Infringer Policy. In accordance with the Digital Millennium Copyright Act and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances and at Company’s sole discretion, members who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
  21. Third Party Websites and Content. The Site contains (or you may be sent through the Site or the Service) links to other web sites (“Third Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the site.
  22. Share Service. Company offers a feature whereby users of the Site can share with others or post to their own member profile, videos, articles and other Third Party Applications, Software or Content from, and/or links to, Third Party Sites through the Service. You acknowledge and agree that your use of the Services and all links, User Content or Third Party Applications, Software or Content shared through the Service is subject to, and will fully comply with the user conduct rules set forth and the other terms and conditions set forth in these Terms and Conditions.
  23. Platform Applications and Software Solutions. Many of our Software Solutions use a set of APIs and services provided by the Company that enable third-party developers (“Platform Developers”) to create websites and applications that retrieve data made available by our Software and its users and/or that retrieve authorized data from third-party sites for use on the Software Solutions (“Platform Applications”)
    Platform Developers may use the Software Solutions and create Platform Applications only in accordance with the terms and conditions set forth in an agreement entered into between us and the Platform Developer (“Developer Terms”). We may from time to time enter into separate agreements with certain third party Platform Developers that contain different or additional terms, provided however, that each such separate agreement will require the third party Platform Developer to only display your information in accordance with your Platform privacy settings. The Standard Terms are subject to change without prior notice at any time, in the Company’s sole discretion, so you should review these documents from time to time. ALL USE OF THE PLATFORM IS PROVIDED “AS IS” AND AT YOUR OWN RISK.
    Users who install Platform Applications must agree to the terms and conditions set forth in these Terms and Conditions. The Application User Terms are subject to change without prior notice at any time, in the Company’s sole discretion, so you should review these terms each time you install an application and from time to time. Platform Developers may require you to agree to their own terms of service, privacy policies and/or other policies as a condition of using Platform Applications. Platform Applications have not been approved, endorsed, or reviewed in any manner by The Company, and we are not responsible for your use of or inability to use any Platform Applications, including the content, accuracy, or reliability of such Application and the privacy practices or other policies of Developers. YOU USE SUCH PLATFORM APPLICATIONS AT YOUR OWN RISK.
    If you, your friends or members of your network use any Platform Applications, such Platform Applications may access and share certain information about you with others in accordance with your privacy settings as further described in our Privacy Policy. Platform Developers are required to agree to restrictions on access, storage and use of such information. However, while we have undertaken contractual and technical steps to restrict possible misuse of such information by such Platform Developers, we do not screen or approve Developers, and we cannot and do not guarantee that all Platform Developers will abide by such restrictions and agreements. Certain actions you take through the Platform Applications may be displayed to your friends in your profile and feeds, and you may opt-out of displaying your Platform Application actions on the Privacy Settings page. Please report any suspected misuse of information through the Platform as described in our Privacy Policy.
  24. User Disputes. You are solely responsible for your interactions with other users or users of related third party sites. We reserve the right, but have no obligation, to monitor disputes between you and other users.
  25. Privacy. We care about the privacy of our users. By using the Site or the Service, you are consenting to have your personal data transferred to and processed in Canada. Please read our complete Privacy Policy located at https://nixtan.com/company/privacy-policy/.
  26. Non-Solicit. During the term of the Agreement and for one (1) year following termination, Nixtan Partner will not solicit, hire, contract with or retain any of Nixtan’s directors, officers, employees, or assignees without Nixtan’s prior written consent.
  27. Indemnification, Liability, Limitation Of Damages
    1. Subject to the limits set out in section on Indemnification of these Standard Terms, each Party (an “Indemnifying Party”) will indemnify, defend and hold the other Party harmless against any third-party claims, losses, liabilities, damages or expenses (including solicitor’s fees and expenses) (“Claims”) that arise directly or indirectly out of:
      1. material breach by the Indemnifying Party of any representation, warranty made in the Agreement;
      2. violation or infringement by the Indemnifying Party of any copyright, trademark, patent or intellectual property right belonging to a third party; and;
      3. gross negligence or willful misconduct of the Indemnifying Party, its officers, directors, employees, or agents under or in connection with the Agreement.;
    2. Nixtan Partner shall indemnify and hold harmless Nixtan from any Claims arising from its marketing or sale of the Solutions hereunder. Without limiting the generality of the foregoing, Nixtan Partner shall indemnify and hold harmless Nixtan from any Claims arising from a breach by Nixtan Partner or Customer of CASL.
    3. You shall defend, indemnify, and hold harmless Nixtan, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that the Customer Content or your use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (b) relating to, or arising from, Customer Content, or (c) relating to, or arising from, Third-Party Services.
    4. Nixtan will not be liable to the Nixtan Partner or any Customer for any incidental, consequential, indirect, special, punitive or exemplary damages, or damages for loss of profits or revenues, Data or other business information, goodwill or other pecuniary loss, arising under or in connection with the Agreement and even if advised of the possibility of such damages. The foregoing disclaimer of liability shall apply regardless of whether such liability is based on breach of contract, contractual or extra-contractual liability, tort (including without limitation negligence), strict liability, breach of a fundamental term, fundamental breach, or otherwise. In no event shall Nixtan’s liability under this Agreement exceed US$5,000.00 or the sum of three months of subscription fees, whichever is less. For greater certainty, the amount set out in the preceding sentence represents the aggregate cumulative maximum liability amount and the existing of one or more claims under this agreement will not increase that amount. The limitation set out in this Section reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.
    5. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NIXTAN, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL NIXTAN BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
    6. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF NIXTAN WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF NIXTAN FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF NIXTAN, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF NIXTAN; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
  28. Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to Company are non-confidential and shall become the sole property of Company. Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
  29. Disclaimers Of Warranties.
    1. The Company is not responsible or liable in any manner for any User Content or Third Party Applications, Software or Content posted on the Site or in connection with the Service, whether posted or caused by users of the Site, by third parties or by any of the equipment or programming associated with or utilized in the Site or the Service. Although we provide rules for user conduct and postings, we do not control and are not responsible for what users post, transmit or share on the Site and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Site or in connection with any User Content or Third Party Applications, Software or Content. The Company is not responsible for the conduct, whether online or offline, of any user of the Site or Service.
    2. Nixtan Partner agrees and acknowledges that Nixtan has not made any representations or guarantees regarding the integrity, accuracy, completeness, success, profitability or expected opportunities associated with the Solutions and Nixtan Partner assumes all business risks associated with the terms and conditions and signing-up Customers to utilize Solutions.
    3. The Site and the Service may be temporarily unavailable from time to time for maintenance or other reasons. Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. The Company is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to User’s or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Service, including any Mobile Client software. Under no circumstances will the Company be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone’s use of the Site or the Service, any User Content or Third Party Applications, Software or Content posted on or through the Site or the Service or transmitted to Users, or any interactions between users of the Site, whether online or offline.
    4. NIXTAN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO NIXTAN PARTNER OR ANY CUSTOMER CONCERNING THE SOLUTIONS OR THEIR USE, ACCURACY OR FUNCTION AND SHALL NOT BE LIABLE IN ANY MANNER FOR ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED OR COLLATERAL OR WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOLUTIONS WILL BE ERROR FREE.
    5. NIXTAN PARTNER SHALL NOT BE AUTHORIZED TO MAKE ANY WARRANTY, GUARANTEE, REPRESENTATION OR CONDITION, WHETHER WRITTEN OR ORAL, ON BEHALF OF NIXTAN. NIXTAN PARTNER SHALL BE SOLELY RESPONSIBLE FOR ANY WARRANTIES FOR THE SOLUTIONS GIVEN BY NIXTAN PARTNER.
    6. THE SITE, THE SERVICE, ANY PLATFORM APPLICATIONS AND THE SITE CONTENT ARE PROVIDED “AS-IS” AND THE COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICE AND/OR ANY PLATFORM APPLICATIONS. COMPANY DOES NOT REPRESENT OR WARRANT THAT SOFTWARE, CONTENT OR MATERIALS ON THE SITE, THE SERVICE OR ANY PLATFORM APPLICATIONS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR SERVICE ITS SERVERS, OR ANY PLATFORM APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SERVICE AND ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
    7. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Company.
  30. Notices and Revisions.
    1. We reserve the right, at any time, to modify or replace our Terms and Conditions. The most recent version of the Terms is available at nixtan.com/company/terms. Please check our Terms and Conditions periodically for changes, though we will also notify you via email or other direct electronic communication method of any changes that, in our sole discretion, materially impact your use of the Services or the treatment of your Personal Information. Your use of the Services following the posting of any changes to the Terms constitutes acceptance of those changes.
    2. All notices and other communications pursuant to the terms and conditions shall be in writing and shall be deemed given if delivered personally, by facsimile or e-mail, or sent by a nationally-recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the Parties at the addresses set forth on the first page or signature page hereof, as applicable, or to such other address as the Party to whom notice is to be given may have furnished to the other Parties in writing in accordance with this Section. Any such notice or communication shall be deemed to have been delivered and received:
      1. in the case of personal delivery, on the date of such delivery
      2. in the case of facsimile or e-mail, on the date sent if sent before 5:00 p.m. on a day that is a Business Day, and otherwise on the next Business Day
      3. in the case of such a nationally-recognized overnight courier in circumstances under which such courier guarantees next Business Day delivery, on the next Business Day after the date when sent and
      4. in the case of mailing, on the fifth Business Day following that on which the envelope containing such communication is posted.
  31. Publicity. Except for any announcement intended solely for internal distribution by either Party or any disclosure required by legal, accounting, or regulatory requirements, all media releases, public announcements, or public disclosures, including but not limited to promotional or marketing material, by either Party or its employees, contractors or agents which includes references to the other Party or the Marks of the other Party shall be coordinated with and approved in writing by such other Party prior to the release thereof.
  32. Force Majeure. Neither Party shall be in default or otherwise liable for any delay in or failure of its performance under the Terms and Conditions if such delay or failure arises by any reason beyond its reasonable control, including any act of nature, any acts of the common enemy, terrorism, the elements, earthquakes, floods, fires, epidemics, riots, attacks by unknown viruses, failures or delay in transportation or communications, or any act or failure to act by the other Party or such other Party’s employees, agents or contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a Party’s reasonable control. Time of performance of either Party’s obligations hereunder will be extended by the time period reasonably necessary to overcome the effects of such occurrences.
  33. Governing Law and Jurisdiction. You must comply with any and all applicable laws, including privacy laws, intellectual property laws, and laws applicable to the reporting and payment of any taxes arising in connection with the use of the Site or Products. The Terms and Conditions is subject to, will be construed in accordance with and will be governed by the laws the Province of Saskatchewan and the federal laws of Canada applicable therein. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Saskatoon, Saskatchewan, Canada in all disputes arising out of or relating to the use of the Site. Not all of the Products described in the Site are available in all jurisdictions. Furthermore, nothing on the Site constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such an offer or solicitation is prohibited by applicable law.
  34. Arbitration
    1. YOU AND COMPANY AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC SERVICES ON THE SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE SERVICES, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS AND CONDITIONS, THE SITE AND/OR THE SERVICE (INCLUDING YOUR VISIT TO OR USE OF THE SITE AND/OR THE SERVICE) SHALL BE FINAL AND BINDING ARBITRATION, except that: (a) to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark or trade secret rights, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought; and (b) no disputes or claims relating to any transactions you enter into with a third party through Social Marketing Platform may be arbitrated.
    2. Arbitration under this Agreement shall be conducted by the Canadian Arbitration Association under its Commercial Arbitration Rules and, in the case of consumer disputes, the Canadian Arbitration Association’s Supplementary Procedures for Consumer Related Disputes. The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such Canadian Arbitration Association Rules and shall be subject to the limitations provided for in the Canadian Arbitration Association Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, the Company will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
    3. To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS AND CONDITIONS SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to the Site and/or the Service (including your visit to or use of the Site and/or the Service) be instituted more than three (3) years after the cause of action arose.
  35. Assignment. Neither the Terms and Conditions nor any of the rights, obligations, or duties of either Party can be assigned or delegated to any other entity without the prior written consent of the other Party, which consent will not to be unreasonably withheld, except that Nixtan may assign all or any part of its rights and obligations hereunder to a subsidiary, affiliate, successor or purchaser of all of the shares or all or substantially all of the assets of Nixtan. Subject to the foregoing restrictions, the provisions of the Terms and Conditions will enure to the benefit of and will be binding upon the assigns, successors-in-interest, personal representatives, estates, heirs and legatees of each of the Parties.
  36. Amendment. The Terms and Conditions will not be deemed to be or construed as having been amended as a result of any oral communication between the Parties or as a result of any practice of the Parties and any amendments to the Terms and Conditions will be in writing and will be signed by both Parties, provided, however, that (1) any such agreement may be executed in counterpart form, and (2) Nixtan reserves the right to alter, add to, delete, modify or change the Standard Terms at any time. The most current version of the Standard Terms will govern our use of your information. We will post any changes to the Standard Terms on our website and update the revision at the beginning of these Standard Terms. You should periodically review the Standard to see recent changes. Any changes to the Standard Terms or waiver of Nixtan’s rights hereunder or thereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of Nixtan. No purported waiver or modification of the Standard Terms by Nixtan via telephone or email communications shall be valid.
  37. Other. These Terms and Conditions constitute the entire agreement between you and Company regarding the use of the Site and/or the Service, superseding any prior agreements between you and Company relating to your use of the Site or the Service. The failure of Company to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision in that or any other instance. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. If any provision of these Terms and Conditions shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions.

  38. Marks and logos shown on this Site may be marks owned by third parties that are not affiliated with the Service or its related companies. Such marks appear for identification purposes only and are the property of their respective companies. Nothing shown on this Site should be construed as granting any permission, license or right to use any trademark, service mark or trade name displayed on this Site without the written permission of the third party that may own the trademark, service mark or trade name at issue.