PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “I AGREE” TO THIS AGREEMENT, OR OTHERWISE BY ACCESSING OR USING ANY OF OUR SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST CEASE ALL ACCESS AND USE OF THE SERVICES IMMEDIATELY.
Welcome to our Terms of Service (the “Agreement”). This Agreement is between ETHEREAL ARCHIVES LTD. (“Company”, “us”, “we” or “our”), the owner and operator ofwww.ethereal.family(the “Site”) and the application (the “Application”), and our services accessible thereon, including our personal goods registry services (the “Registry Services”, and collectively with the Site, the Application, and any other services, the “Services”), and you (“you”, “your” or “user”), a user of the Services. This Agreement governs your access and use of the Services.
This Agreement incorporates by reference our Privacy Policy posted by us on our Site, and any other policies posted by us from time to time expressly referencing this Agreement (together, the “Policies”). In the event that you are party to a written and signed service agreement with us (the “Signed Agreement”), then this Agreement will apply to your access and use of the Services only to the extent that such access and use is not already governed by the Signed Agreement.
We may amend this Agreement without notice or consent at any time and from time to time by posting the amended Agreement on the Site. You can determine when this Agreement was last amended by referring to the “Last Updated” reference expressly provided above. Your continued access or use of our Services constitutes your acceptance of the amended Agreement.
Service Modifications We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. We will not be liable to you or any third party for any modification, suspension or discontinuance of any of the Services.
Users must create a user account in order to access and use the Registry Services (an “Account”). You agree to keep your Account information, including your Account password and login (the “Account Information”), confidential. You also agree to keep your Account Information current, and you will promptly notify us of any changes thereto.
Users are solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, to access, or to otherwise use the Services, including modems, hardware, software, operating systems, networking, web servers and the like (collectively, the “Connecting Equipment”). For certainty, Company will in no event be responsible for the quality or function of any Connecting Equipment, even after such Connecting Equipment has been connected to the Services, or otherwise.
We reserve the right, at any time and from time to time, to terminate your Account, and any username, password, or other identifier, whether chosen by you or provided by us, in our sole discretion for any or no reason, including any violation of this Agreement.
To access and use the Registry Services, Users will pay service fees to the Company (the “Service Fees”). The Service Fees may be structured as: (a) a subscription-based model; (b) a per-item registration model; or (c) any other payment structure determined by the Company in its sole discretion from time to time. The Company reserves the right to change the Service Fees at any time in its sole discretion.
In accessing and using the Services, users must not:
use the Services outside of their ordinary intended use, as determined by us in our sole discretion from time to time;
use any automated software program (bots), spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to create Accounts or otherwise access and use our Services for any purpose, except with our prior written consent;
breach or circumvent any laws or any third-party rights;
use our Services if you are not able to form legally binding contracts (i.e., lacking legal capacity with respect to age, mental capacity or other factor), or are temporarily or indefinitely suspended from using our Services;
transfer your Account to another party without our prior written consent;
distribute viruses or any other technologies that may harm the Services;
interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
infringe the copyright, trademark, patent, publicity, moral, database and/or other intellectual property rights (collectively “Intellectual Property Rights”) that belong to or are licensed to the Company. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to the Company or to third parties;
infringe any Intellectual Property Rights that belong to third parties; circumvent any technical measures we use to provide the Services, or take any action to violate, interfere with, or undermine the security or system integrity of the Services;
reproduce, copy, modify, adapt, exploit for commercial purposes, license, sublicense, distribute, transmit, translate, or create derivative works of the Services or the content therein or any part thereof, except with the prior written consent of Company or as permitted in the ordinary and prescribed use of the Services;
or take any action that would damage, harm, or diminish Company’s reputation, goodwill, or public image.
If we determine, in our sole discretion, that you are abusing the Services or failing to comply with the terms of this Agreement, we may, without limiting any other available remedies herein or under applicable law, limit, suspend or terminate your Account and access to our Services, and take technical and/or legal steps to prevent you from using our Services.
You represent and warrant that, for all information that you provide or make available to the Services, directly or indirectly, including, as may be applicable, Account Information (together, the “User Information”):
you own or otherwise control all necessary rights to do so and to meet your obligations under this Agreement;
all such User Information is accurate and complete; and
the use of any such User Information by us, or others in contract with us, for the purposes of providing the Services does not and will not infringe any Intellectual Property Rights, privacy rights or contractual rights of any third party.
The content contained on the Services, including the text, graphics, images, audio, video and other material, as well as the taglines and look-and-feel (collectively, the “Content”), is protected by copyright, trademark and other such intellectual property laws in Canada, the United States and foreign countries, and is owned or controlled by the Company or by third parties that have licensed their Content to the Company. Unauthorized use of the Content by you may violate copyright, trademark, and other intellectual property laws.
The trademarks, logos and service marks (the “Marks”) displayed on the Services, and which may be included with the Content, are owned by the Company or third-party licensors. You are prohibited from using such Marks without prior written permission from the Company or such applicable third party in each instance.
For certainty, the Company retains all right, title and interest in and to the Content and the Marks.
ALL OF OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU AGREE THAT THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AFFILIATES, AND ASSIGNS ARE NOT LIABLE FOR ANY LOSS, HARM, DAMAGE, COST, OR INJURY SUFFERED (INCLUDING ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES) IN CONNECTION WITH YOUR ACCESSING, USING, OR THE INABILITY TO ACCESS, OR USE, THE SERVICES. YOU AGREE THAT THE COMPANY IS NOT RESPONSIBLE OR LIABLE FOR YOUR ACTIONS OR JUDGMENTS IN CONNECTION WITH SAME, AND THE COMPANY IS NOT RESPONSIBLE FOR THE ACTIONS OR OMISSIONS OF ANY THIRD PARTIES.
IN ADDITION, WITHOUT LIMITING THE FOREGOING, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE (INCLUDING OUR AFFILIATES, AND OUR AND THEIR OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) ARE NOT LIABLE FOR ANY DAMAGES OR LOSSES (INCLUDING LOSS OF MONEY, GOODWILL OR REPUTATION, PROFITS, OTHER INTANGIBLE LOSSES, OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) ARISING OR RESULTING DIRECTLY OR INDIRECTLY FROM:
THE INFORMATION THAT YOU PROVIDE (DIRECTLY OR INDIRECTLY) WHEN USING THE SERVICES; OR
THE THIRD-PARTY MATERIALS THAT YOU ACCESS OR USE (DIRECTLY OR INDIRECTLY) IN CONNECTION WITH THE SERVICES.
WITHOUT LIMITING ANY OF THE FOREGOING, AND IN ANY EVENT, THE COMPANY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMISSABLE UNDER APPLICABLE LAW.
The Services may contain links to third party websites, applications, products or services (together, the “Third-Party Materials”) that are not owned, maintained or operated by the Company. The Company is not responsible for such Third-Party Materials and does not make any representations, warranties or guarantees regarding Third-Party Materials whatsoever. For certainty, the Company disclaims any liability associated with your access to, use of, download of, or reliance on, such Third-Party Materials. Your access, use and/or download of any such Third-Party Materials is at your sole risk.
You agree to defend, indemnify, and hold harmless the Company and its affiliates, and each of their officers, directors, employees and agents, from and against any and all claims, actions, demands or losses, including reasonable legal and accounting fees, arising from or in any way relating to your breach of this Agreement.
You understand and agree that the Company is making the Services available to you in reliance upon the limitations and exclusions of liability, indemnities, and the disclaimers set forth herein and that the same form an essential basis of the agreement between you and the Company. You agree that the limitations and exclusions of liability, indemnities, and the disclaimers set forth herein will survive, and continue to apply in the case of a fundamental breach or breaches of, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination of this Agreement.
This Agreement, which incorporates the Policies as may be in effect from time to time, constitutes the entire agreement between you and the Company with respect to the subject matter contained herein, and there are no other terms, conditions, representations, warranties, or collateral agreements, express or implied. To the extent of any conflict between this Agreement and any Policies, this Agreement will govern.
The Company may assign this Agreement, in whole or in part, at any time, with or without consent or notice to you. You may not assign your rights or delegate your duties under this Agreement, either in whole or in part, without the Company’s prior written consent in each instance. This Agreement will enure to the benefit of and be binding upon the parties to this Agreement and their respective successors, heirs and permitted assigns.
Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. Any waivers by the Company will not be effective unless expressly made in writing and duly signed by an officer or director of the Company.
In the event that a court of competent jurisdiction determines that any provision(s) of this Agreement (or parts thereof) are invalid or unenforceable (the “Impugned Provisions”): (i) the Impugned Provisions will not affect the validity or enforceability of any other provisions of this Agreement, which will remain in full force and effect; and (ii) to the maximum extent permitted by applicable law, the Impugned Provisions will be deemed to be amended such that they accomplish their original intent as closely as possible while remaining compliant with applicable law.
This Agreement was written in the English language. If this Agreement is translated into another language, the English language text will in any event prevail. Unless the context otherwise requires, words importing the singular include the plural and vice versa, and words importing gender include all genders. Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”. The descriptive headings contained in this Agreement are included for convenience of reference only and will not affect in any way the interpretation of this Agreement.
This Agreement is governed and interpreted pursuant to the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to principles of conflicts of law that would impose the law of another jurisdiction. You agree to submit to the exclusive jurisdiction of the courts located within the Province of British Columbia, Canada. The foregoing will not limit the Company’s right to enforce this Agreement in any other jurisdiction if reasonably necessary or advisable in our sole discretion.
YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE TO WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY, OR COMMENCE OR PARTICIPATE IN ANY CLASS ACTION AGAINST US RELATED TO THE SERVICES AND/OR THIS AGREEMENT.