TERMS AND CONDITIONS OF USE
(This version in force since: December 14, 2004)
This website (the Website) is owned and operated by High Intellectual Technologies Inc., carrying on business as Hitcalls.com (HIT).
PREAMBLE
THESE TERMS AND CONDITIONS OF USE (THE TERMS AND CONDITIONS) AND ALL DOCUMENTS REFERRED TO IN THESE TERMS AND CONDITIONS CONSTITUTE AN AGREEMENT BETWEEN YOU (YOU, YOUR, USER OR CUSTOMER) AND HIT (THE AGREEMENT) WHICH AGREEMENT GOVERNS YOUR USE OF THIS WEBSITE OR ANY AUTOMATED DIAL IN TELEPHONE SERVICE (AS THE CASE MAY BE) (COLLECTIVELY, THE "WEBSITE") AND THE SERVICES PROVIDED THROUGH OR IN CONNECTION WITH THIS WEBSITE (COLLECTIVELY, THE "SERVICES"). THIS AGREEMENT ALSO GOVERNS THE PURCHASE AND USE OF ANY GOODS THROUGH THIS WEBSITE OR IN CONJUNCTION WITH YOUR USE OF SERVICES (COLLECTIVELY, THE GOODS). THIS AGREEMENT EXEMPTS HIT AND OTHERS FROM LIABILITY OR LIMITS THEIR LIABILITY AND ALSO CONTAINS OTHER IMPORTANT PROVISIONS THAT YOU SHOULD READ. EACH TIME YOU ACCESS THIS WEBSITE OR OBTAIN OR USE THE SERVICES, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THIS AGREEMENT.
EACH TIME YOU ACCESS THE WEBSITE OR OBTAIN AND USE THE SERVICES, THE TEXT OF THIS AGREEMENT, AS IT THEN READS, WILL GOVERN EACH OF THE FOREGOING. ACCORDINGLY, WHEN YOU OBTAIN OR USE THE SERVICES, YOU SHOULD VERIFY THE EFFECTIVE DATE OF THIS AGREEMENT (WHICH APPEARS AT THE TOP OF THIS AGREEMENT) AND, IF THE AGREEMENT HAS BEEN REVISED SINCE YOUR LAST VISIT TO THE WEBSITE, REVIEW THIS NEW VERSION OF THE AGREEMENT.
ARTICLE I
YOUR ACCEPTANCE OF THIS AGREEMENT AND TERM
1.1 These Terms and Conditions govern your use of this Website and the Services. By accessing this Website and its content and/or by using the Services, you hereby agree to be unconditionally bound by these Terms and Conditions. Your purchase and subsequent use of any Goods is also subject to these Terms and Conditions and any other written agreement presented to you by or on behalf of HIT which you have agreed to be bound by.
1.2 This Agreement comes into effect on the date HIT activates your Account (as such term is hereinafter defined) and ends on the date the Agreement is terminated by either party, as same is provided in this Agreement. For Services offered on a month-to-month basis, each such Service will be offered for a term which begins on the date that HIT activates such Service and which ends on the day before the same date in the following month. The term for such Service will automatically renew each month unless you provide HIT with at least thirty (30) days prior written notice in which case the term of the Service(s) subject to such notice shall terminate at the end of the service month following expiration of the thirty (30) day notice period.
ARTICLE II
CHANGES TO THIS AGREEMENT
2.1 You may not change, supplement, or amend this Agreement in any manner. THESE TERMS AND CONDITIONS MAY BE CHANGED, SUPPLEMENTED OR OTHERWISE AMENDED FROM TIME TO TIME BY HIT IN ITS SOLE AND ABSOLUTE DISCRETION AS IT RELATES TO YOUR FUTURE USE OF THE WEBSITE AND FUTURE ACQUISITION OF GOODS AND SERVICES. Notice of such changes and of the revised Terms and Conditions shall be deemed to have been provided to you on the date the revised Terms and Conditions are posted on the Website (which date is referenced at the very beginning of these Terms and Conditions as the effective date). You are solely responsible for verifying these Terms and Conditions to ensure that they have not changed. You can presently do so by accessing http://www.hitcalls.com/terms_and_conditions.html. By accessing this Website and its content and/or by using the Services, you hereby agree to be unconditionally bound by the then most recent version of these Terms and Conditions. If you do not agree to a change, you must terminate this Agreement as described below.
ARTICLE III
SERVICES AND AUTHORIZED USERS
3.1 The Services presently include, without limitation, the following:
(a) use of virtual calling cards obtained through the Website or otherwise obtained from HIT (each a Virtual Calling Card) to make long distance telephone calls (the Virtual Calling Card Service). The Virtual Calling Card Service may also include or be offered in conjunction with certain prepaid long distance plans (Prepaid LD Plans).
3.2 Although not presently offered, the Services may, at a future date, in HITs sole discretion, also include the following:
(a) use of a broadband internet phone service (the Broadband Phone Service). The Broadband Phone Service may also include certain or be offered in conjunction with Prepaid LD Plans;
(b) such other services as HIT may elect to provide through the Website or in conjunction therewith.
You acknowledge and understand that although these Terms and Conditions may contain references to Broadband Phone Services or other Services not included in Section 3.1, such references shall be of no force and effect until HIT decides, in its sole discretion, to offer such Services.
3.3 HIT may at any time choose to discontinue any of the Services without notice or liability. Likewise, HIT shall not be required to provide Services to you where in doing so, it would need to incur any additional expense not incurred in the usual course of its day-to-day business.
3.4 For the purposes of this Agreement, a Call shall mean any call made using either the Virtual Calling Card Service or the Broadband Phone Service. Where a Service usage level is calculated using the duration of Calls, the duration of each such Call shall be rounded up to the next full minute.
3.5 The Website and the Services may only be used by individuals and entities resident in Canada. The Website and the Services may only be used by individuals who have reached the age of majority or legal age in their jurisdictions and who can form legally binding contracts under applicable law. Customers who are corporations or any other form of body corporate hereby represent and warrant that they are duly authorized to enter into this Agreement, provide the acknowledgements contained in this Agreement and perform its obligations under this Agreement. The Website and the Services may not be used by individuals or entities who have had their Account (as such term is hereinafter defined) terminated or by individuals or entities in jurisdictions where the Website, or any part of it, or the offer and use of any of the Services may be illegal or otherwise prohibited. It is solely your responsibility to determine whether your use of the Website and the Services is lawful, and you must comply with all laws applicable in your jurisdiction. HIT reserves the right to limit the availability of the Website and the Services and/or the provision of any Product offered on or through the Website or the Services or otherwise described in the Website, to any person, geographic area, or jurisdiction, at any time and in its sole discretion, and to limit the quantities of any such Services, Goods, or other product that HIT provides. THE OFFER OF ANY GOODS OR SERVICES IS VOID WHERE PROHIBITED.
ARTICLE IV
ACCOUNT IDENTIFICATION & PASSWORDS
4.1 Some areas of the Website and the receipt of certain Services may require you to register with the Website and create an account (an Account). When and if you register and create an Account, you agree to: (a) provide accurate, current, and complete information about yourself as prompted by our registration form (including, without limitation, your full name, mailing address and email address); and (b) to immediately update your information upon any changes thereto so as to keep it accurate, current, and complete. The Website offers two categories of Accounts: (i) business (a Business Account); or (ii) residential (a Residential Account). During the creation of your Account you will be provided with the option of choosing between subscribing to a Business Account or a Residential Account. Each category of Account may be subject to different terms, conditions, restrictions, requirements, obligations and fees which may change from time to time in HITs sole discretion. You may access the current terms, conditions, restrictions, requirements, obligations and fees for each category of Account by accessing http://www.hitcalls.com/.
4.2 As part of the registration process, you will be asked to select a unique user ID (a User ID) and password (an Account Password). HIT may refuse to grant you a User ID that impersonates someone else, is or may be illegal, is or may be protected by trade-mark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by HIT in its sole discretion. For security reasons, User IDs and Account Passwords must be non-obvious, hard-to-guess, confidential and changed on a regular basis, and members must log-out at the end of each session.
4.3 Should you subscribe to the Virtual Calling Card Service (as such term is hereinafter defined) you shall also be assigned a card number for such Service (a Card Number) and shall be required to choose and use a personal identification number (a PIN) to use the Virtual Calling Card Service. The use of a PIN in conjunction with the Virtual Calling Card Service does not limit or restrict the right of HIT and its service providers to monitor the use of the Virtual Calling Card Service as described in these Terms and Conditions. Likewise, when you subscribe to the Broadband Phone Service, you will be assigned a Card Number for such Service and shall be required to choose and use a PIN to use the Broadband Phone Service.
4.4 YOU ARE ENTIRELY AND SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USER ID, ACCOUNT PASSWORD, CARD NUMBER AND PIN AND ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You must ensure that all use of your Account (whether by you or anyone else) complies with this Agreement) and shall be liable for any unauthorized use of your Account or the use of Services using your Account Password or PIN. You must immediately notify HIT of any unauthorized disclosure or use of your User ID, Account Password, Card Number or PIN you have provided to other persons, or if you know or suspect that the foregoing information has been lost, stolen or become known to any other person without your authorization. Likewise, you must immediately notify HIT should you suspect or become aware that your Account and the Services are being stolen or fraudulently used and provide HIT with full particulars thereof. You acknowledge and understand that you are capable of changing your PIN and Account Password by logging into your Account and accessing your user profile. Notwithstanding the foregoing, HIT SHALL NOT BE LIABLE IN THE EVENT THE WEBSITE OR ANY FEATURE THEREOF IS NOT ACCESSIBLE TO YOU OR FOR ANY OTHER CIRCUMSTANCES THAT MAY PREVENT YOU FROM CHANGING YOUR PIN AND/OR ACCOUNT PASSWORD IN A TIMELY MANNER SO AS TO PREVENT OR STOP UNAUTHORISED USE OF YOUR VIRTUAL CALLING CARD OR OF ANY SERVICES USING YOUR ACCOUNT, ACCOUNT PASSWORD, CARD NUMBER OR PIN.
4.5 All User IDs, Account Passwords, Card Numbers and PINs remain the property of HIT, and may be cancelled or suspended at any time by HIT without any prior notice or any liability to you or any other person. HIT is not under any obligation to verify the actual identity or authority of the user of any User ID, Account Password, Card Number or PIN.
4.6 You must respond promptly to all email and other correspondence from HIT, including without limitation email and correspondence concerning complaints or concerns regarding your use of the Website, any Service and/or the use of your Account.
4.7 THE SECURITY AND PRIVACY PROVIDED BY PASSWORDS IS NOT COMPLETE, AND CAN BE CIRCUMVENTED. YOUR USE OF PASSWORDS AND ANY SERVICE WHICH RELIES DIRECTLY OR INDIRECTLY ON THE USE OF PASSWORDS IS AT YOUR OWN RISK.
ARTICLE V
USE OF THE WEBSITE & SERVICES
Prohibited Uses
5.1 Your use of the Services must comply with all applicable domestic and foreign laws, rules, policies, treaties and regulations, whether civil, criminal or otherwise, and must not be for any unlawful purpose. Access to the Website and use of the Services from locations where any such access or use may be illegal is prohibited.
5.2 Your use of the Service must not infringe the legal rights of any other person, including, without limitation, privacy rights.
5.3 Unless you have specifically registered to a Business Account, you may only use the Services for personal, non-commercial, non-professional and residential purposes. Should you make any unauthorized commercial use of the Services, HIT may, in addition to any other remedies available to it, obtain retroactive payment for the difference between the fees paid by you to date and the fees calculated at the higher rates applicable to Business Account holders and change your account to a Business Account on a go-forward basis, regardless of the actual proportion of your use of Services which was for a commercial purpose.
5.4 Unless expressly authorized by HIT, which authorization may be arbitrarily withheld, and regardless of whether or not you registered as a Business Account, the Services must not be used in connection with any commercial activities, including:
(a) selling or offering to sell any goods or services, including reselling any Goods and/or Services;
(b) soliciting for advertisers or sponsors;
(c) conducting contests, gaming or gambling or offering prizes, awards or any other incentives to users;
(d) soliciting for donations;
(e) conducting surveys or polls;
(f) auto-dialing, continuous or extensive call forwarding; or
(g) telemarketing or any other form of solicitation (be it commercial, charitable or political).
5.5 When accessing the Website or using a Service you shall not use any device, software, or routine or otherwise undertake any course of conduct which could directly or indirectly interfere (or attempt to interfere) with the proper working of the Website and/or delivery of Services or impose an unreasonable or disproportionately large load or burden on the system or its infrastructure.
5.6 The following is a non-exhaustive list of prohibited uses of the Website and/or Services. HIT reserves the right, in its sole discretion, to determine whether any use by you of the Website and/or Services is prohibited or otherwise violates your obligations under this Agreement:
(a) Uses that may be unlawful, indecent, offensive, defamatory, derogatory, fraudulent, deceptive, harmful, abusive, threatening, vulgar, profane, pornographic, obscene, sexually explicit, sexist, racist, hateful, offensive, harassing, invasive of the privacy rights of others, or otherwise objectionable. This prohibition extends to the posting of any Materials that depict, encourage, indicate, advocate or tend to incite any such conduct.
(b) Uses that may harm, threaten, harass, abuse or intimidate any other person in any way or involve materials that depict, promote, encourage, indicate, advocate or tend to incite the commission of a crime or other unlawful activities, violence, hatred, cruelty or discrimination against any individuals or groups, for any reason, or any act of cruelty to animals.
(c) Uses that may dilute or depreciate the name and reputation of HIT and its affiliates, associates, service providers and/or business partners.
(d) Uses that modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Website or underlying software, or that delete, obscure or modify any proprietary notice contained on the Website;
(e) Uses that "frame" or "mirror" any part of the Website without HIT prior written consent, which consent may be arbitrarily withheld;
(f) Uses that interfere with any other persons use and enjoyment of any of the Services, the Website or of the Internet generally;
(g) Uses that may damage, disrupt, compromise or degrade the integrity, efficiency, performance or security of the Website or of any of the Service or that may otherwise or result in:
(i) the circumvention or breach of any user authentication, password, security or control measures regarding the Website, any of the Services or any other Internet resource or computer and/or telecommunication system; or
(ii) unauthorized access to other person account, PIN number, password or interference with such persons use and enjoyment of the Website or any of the Services.
(h) Uses that conceal or misrepresent the author or origin of any message or communication, or that impersonate any person, or that falsely state or otherwise misrepresent an affiliation with any other person, including without limitation any HIT representative;
(i) Uses that directly or indirectly export or transmit Virtual Calling Cards (namely, Card Numbers and/or PINs), Goods, Equipment (as such term is hereinafter defined) or any products utilising any of the foregoing to any country to which the governments of the United States of America, the United Kingdom or Canada, or any of their respective agencies having jurisdiction over such export or transmission, require an export license or other government approval, without first obtaining such license or approval; and
(j) Uses that disclose any private information about any person (such as names, telephone numbers, email addresses, postal addresses, social insurance or social security numbers) without that person's permission.
Monitoring and Complaints
5.7 HIT is not obligated to monitor, screen or police access to the Website and/or the use of any of the Services, although HIT reserves the right to do so in its sole discretion and without any notice or liability to you or any other person.
5.8 HIT will respond, as it considers appropriate, in its sole discretion, if it becomes aware of any inappropriate use of the Website or any of the Services.
Compliance and Consequences for infringement
5.9 HIT may in its sole discretion determine whether the provisions in these Terms and Conditions relating to permitted use of the Website and/or Services have been violated. Any such violation constitute a breach of this Agreement and may, in the sole discretion of HIT, result in: (a) termination or suspension of permission to access the Website and/or use the Services and any Website membership and accounts you may have; (b) and the exercise of any other right or remedy provided in this Agreement (c) the exercise by HIT of any other remedy which may otherwise be available to it; all without any notice or liability of HIT to you or any other person.
5.10 You acknowledge and understand that infringement of these Terms and Conditions may result in criminal or civil liability.
5.11 HIT may in its sole discretion report perceived violations of any applicable law to law enforcement authorities. HIT will co-operate fully with law enforcement authorities in the investigation of suspected unlawful conduct, including providing Website members' personal information (including account information and payment information), Service users' personal information, and copies of logs and other information related to access to the Website and/or use of Services.
5.12 You acknowledge that it is HIT policy to cooperate with law enforcement agencies investigating illegal or improper activities relating to the use of the Website and/or Services.
Provisions applicable to specific Services
Virtual Calling Cards
5.13 In addition to the other obligations and restrictions imposed upon you in these Terms and Conditions, use of Virtual Calling Card Serviceis subject to the following:
(a) you may only use the Virtual Calling Card Service to place voice calls, provided however that you can use the Virtual Calling Card Service in conjunction with the Broadband Phone Service; and
Any use of the Virtual Calling Card other than as specified herein will constitute unauthorized use of the Services.
5.14 You acknowledge and understand that in the event you do not use all time allocated to you under a Prepaid LD Plan or any other Service during the relevant time period (be it weekly, monthly or yearly, as the case may be), such unused time will not be transferred to a subsequent time period and shall be lost. Moreover, you acknowledge and understand that should your usage of the Prepaid LD Plan or any other Service: (i) exceed any maximum usage time, volume and/or capacity limits; (ii) not meet with applicable restrictions and conditions of use; or (iii) result in additional costs or charges to HIT; you will be obligated to pay HIT such additional fees and charges in accordance with its then current fee schedule (which may be accessed at http://www.hitcalls.com/.
Broadband Phone Service
5.15 You acknowledge and understand that use of the Broadband Phone Service requires the installation and use of certain telecommunications equipment specified and changed from time to time by HIT in its sole and unfettered discretion without any liability (collectively, the Equipment). The Equipment must be purchased directly from HIT or from a supplier which has been pre-approved by HIT (which approval may be withheld or refused in HITs sole and absolute discretion). You agree to immediately notify HIT should the Equipment be stolen or otherwise removed from your possession and control.
5.16 In addition to the other obligations and restrictions imposed upon you in these Terms and Conditions, use of the Broadband Phone Service is subject to the following:
(a) The Broadband Phone Service may only be used with the Equipment;
(b) The Broadband Phone Service may not be used for any fax blasting or any other similar practice;
(c) You shall not rent, lease, resell, mortgage, pledge or otherwise encumber the Equipment;
(d) You shall not reverse-engineer or disassemble the Equipment or reverse engineer or decompile any software or firmware used in conjunction with the Equipment and/or Broadband Phone Service;
(e) You shall not tamper with or modify the Equipment, including, without limitation, the electronic serial number or equipment identifier of the Equipment or perform a factory reset of the Equipment, without the prior written consent of HIT, which consent may be arbitrarily withheld (you acknowledge and understand that any such course of conduct could prevent or hinder delivery of Services and could damage the Equipment or render same inoperable and that you shall be solely responsible for any of the foregoing); and
(f) You shall only use the Equipment in accordance with all applicable laws and regulations (including, without limitation any export Control laws or regulations), guidelines and standards and in accordance with the then-current Terms and Conditions or any other policies or procedures that may be posted on the Website from time to time and any lease agreement or other agreement you have entered into with HIT.
Any use of the Broadband Phone Service other than as specified herein will constitute unauthorized use of the Services.
5.17 You acknowledge and understand that the Broadband Phone Service is not a telephone service and that only the features specifically described in the description of the Broadband Phone Service (located at http://www.hitcalls.com/broadbandvoice/) are offered by HIT. Without any limitation to the generality of the foregoing, you acknowledge and understand that the following features are not offered by the Broadband Phone Service:
(a) 0+ calling and operator services, including, without limitation, collect, third party billing or third party calling card calling;
(b) 411, 311, 511 and/or other x11 services; and
(c) 911 or other emergency services. YOU HEREBY ACKNOWLEDGE THAT NO 911 OR EMERGENCY SERVICE ARE PRESENTLY OFFERED THROUGH THE WEBSITE AND/OR SERVICES. ANY REFERENCE IN THESE TERMS AND CONDITIONS TO 911 OR OTHER EMERGENCY SERVICE ARE FOR FUTURE USE SHOULD HIT, IN ITS SOLE DISCRETION DECIDE TO INCORPORATE SUCH SERVICES WITHIN THE BROADBAND PHONE SERVICE AND NO SUCH REFERENCE SHALL BE CONSTRUED AS BEING A REPRESENTATION OR WARRANTY THAT SUCH SERVICES ARE OFFERED INDEPENDENTLY OR AS PART OF ANY OTHER SERVICE.
ARTICLE VI
PREPAID SERVICES & PRIVILEGE LEVEL
6.1 All Virtual Calling Card Services and Broadband Phone Services are offered on a prepaid basis only. You may use a credit card (VISA or Mastercard), certified cheque, bank draft or other method of payment approved by HIT to purchase prepaid Virtual Calling Card Services, Broadband Phone Services and any other prepaid Services.
6.2 To create an Account, which in turn will allow you to use the Virtual Calling Card Services, you must initially provide HIT with a prepayment of at least CAD$10.00.
6.3 The amount of the prepaid balance for your Account will determine the privilege level of your Account with respect to the Virtual Calling Card Service. The requisite prepaid balance for an Account to attain any privilege level shall be determined and may be changed from time to time by HIT in its sole and absolute discretion. Three privilege levels are presently available for an Account: Blue Sky, Gold and Platinum. Each privilege level attached to your Account may provide you with differing benefits with respect to your use of the Website and/or Virtual Calling Card Services and may also be subject to differing conditions and/or restrictions. The foregoing benefits, conditions and/or restrictions shall be determined and may be changed from time to time by HIT in its sole and unfettered discretion. Please go to http://www.hitcalls.com/personal.html to review the current requirements, conditions, restrictions and benefits attributable to each privilege level.
6.4 Rates charged for the Virtual Calling Card Services may vary depending on the privilege level attributed to your Account. The determination of the privilege level of your Account shall be made immediately prior to your use of Services.
6.5 To subscribe and commence using Broadband Phone Services (should such Services be offered) you must initially provide HIT with a prepayment representing the entire amount of the monthly service Fee for the first month. Thereafter, you will also be required to prepay for any subsequent renewal term for the Broadband Phone Services unless HIT expressly provides otherwise in its sole and absolute discretion.
6.6 Prepaid LD Plans and the Broadband Phone Service may provide you with a maximum number of minutes which may be used by you for Calls during a set period of time, which maximum number of minutes may vary or be broken down based on such criteria and may be subject to such conditions as HIT may establish and change from time to time in its sole discretion.
6.7 Once you have applied the initial minimum amount of prepaid funds to your Account, you may immediately commence use of the Virtual Calling Card Services, subject to these Terms and Conditions. Moreover, any Call which is initiated under the Virtual Calling Card Service will automatically be disconnected upon your prepaid balance becoming insufficient to purchase additional time for such Call. The duration of a single Call may be limited by HIT in its sole and absolute discretion.
6.8 You may make additional prepayments to your Account through the Website using your credit card or through such other means and/or methods of payment as HIT may, in its sole discretion, provide you with, including without limitation, automated dial in telephone service.
6.9 Instructions relating to the use of the Services can be found at http://www.hitcalls.com/personal.html.
ARTICLE VII
PRICES, FEES, CHARGES AND TAXES
7.1 Amounts applied towards the prepaid balance of your Account shall not obligate HIT to provide any Service at any rate which were in effect at the time such amounts were applied to your Account.
7.2 All fees and charges for Services will be at the rates in effect at the time the aforesaid were incurred. Charges incurred under this Agreement may include charges related to use of the Services or the acquisition or leasing of Goods, as well as charges related to goods and services provided by third parties but acquired through the Website.
7.3 You are responsible for paying all fees, charges and applicable taxes associated with your use of the Services and any use of the Services by any person using your PIN and/or Account Password. All amounts appearing on the WebSite and in this Agreement are in Canadian dollars unless expressly stated otherwise. Periodic Account fees relating to your proposed use of certain Services (including, without limitation, Prepaid LD Plans and the Broadband Phone Service) will be billed in advance of the provision of such Services or on such later date as HIT may determine in its sole discretion. Any late payment owed by you to HIT will be subject to payment by you of interest at an annual rate of 12% (compounded annually). In the event HIT decides, in its sole discretion, to accept any payment by way of personal cheque, an administration fee of CAD$30.00 shall be charged for any payments returned for non-sufficient funds (NSF).
7.4 All fees, costs and charges incurred for use of the Services by you or any person using your PIN or Account Password will be deducted from the prepaid balance of your Account and, to the extent the prepaid balance of your Account is insufficient to offset such fees, costs and charges any remaining unpaid amount will automatically be charged to your credit card as reflected in your registration records, unless HIT expressly agrees in its sole discretion to an alternative method of payment. You may update the credit card information from time to time. Any periodic Account and/or Service fees will be billed and charged to your credit card on the first day of the relevant service period unless otherwise expressly provided by HIT in its sole discretion. In the event HIT has expressly agreed to an alternative method of payment, such payment must be received by HIT on or before the first day of the relevant service period or on such other date as HIT may expressly agree in its sole discretion.
7.5 You will not be entitled to any credits, rebates, or refunds for times when the Website is down or when the Services are unavailable or interrupted or when the quality of the Services is downgraded. Likewise, you will not be entitled to any credits, rebates, or refunds should your actual usage of Services fall below any set maximum for any service period.
7.6 HIT endeavours to provide current and accurate information on the WebSite. Nevertheless, misprints or other errors may occur. Accordingly, HIT reserves the right to change the prices, fees and charges associated with any of the Goods or Services, including any third party goods and services available through the Website, at any time and from time to time without any notice or any liability to you or any other person. Also, due to the popularity of some goods and services, HIT cannot guarantee that goods or services advertised on the Website will be available when ordered or thereafter. HIT also reserves the right at any time to reject, correct, cancel or terminate any order. If you order Goods or Services for which the price was incorrectly displayed at the time of your order, HIT reserves the right to cancel such order without any liability. If you order Goods or Services that are not available, HIT will notify you either by email or by telephone. HIT reserves the right to limit quantities of Goods or usage of Services.
7.7 The advertisements on the Website are invitations for purchase orders only, and are not offers to sell. Your properly completed and delivered order form constitutes your offer to purchase the goods or services referenced in your order. Your order shall be deemed to be accepted only if and when HIT sends an order acceptance email or otherwise confirms the order through the Website or through other means of communication which HIT may expressly specify from time to time in its sole discretion and, in the case of a purchase of Goods, a shipping notice email to your email address.
7.8 If any payment due is not made by you, HIT may, in addition to its other remedies available to it, at its sole discretion and without notice to you, (a) suspend its performance under this Agreement and your access to and use of the Website and any Service, or (b) terminate this Agreement, your Account and your access to and the use of the Website and Services. If legal action is necessary to collect fees or charges due from you, then you will reimburse HIT for all expenses incurred in collecting the fees and charges, including all legal fees and all other expenses, costs and disbursements.
ARTICLE VIII
TERMINATION
8.1 You may terminate this Agreement at any time. To terminate this Agreement, you must notify HIT by sending an email to terminate@hitcalls.com, by calling HIT customer support line or by using any online feature of the Website which HIT may, in its sole and absolute discretion, make available to you for such purpose. After receipt of your termination notice, HIT will terminate your Account and shall reimburse any prepaid balance for your Account. You acknowledge and agree that HIT will not issue a refund for any remaining prepaid balance for your Account (less any applicable Processing Fee) which is lower than five dollars (CAD$5.00).
8.2 HIT may, in its sole discretion, change, suspend, or terminate, temporarily or permanently, access to the Website (or any part thereof), your Account or the delivery of any of the Services at any time, for any reason, without cause and WITHOUT ANY NOTICE TO YOU AND WITHOUT ANY LIABILITY TO YOU OR ANY OTHER PERSON. In such circumstances, HIT shall reimburse you for any prepaid balance for your Account and shall refund such prorated portion of any periodic Service fees which have been paid by you in accordance with the remaining Service period for said Services and this shall constitute HITs only obligation and liability to you in any and all of the aforesaid circumstances. Any such refund shall be subject to the following: (i) any unpaid amounts you owe HIT at the time of termination (including, without limitation, any applicable Processing Fee) may be deducted from any such refund; and (ii) such refund may be deferred until all pending claims HIT may have against you have been fully resolved, as evidenced by binding minutes of settlement or a final judgement which is final and not subject to any right of appeal.
8.3 If you breach any provision of this Agreement, HIT or its service providers may, in their sole discretion and in addition to any other remedy available to them, immediately: (i) suspend or terminate (in whole or in part) your authorization to access the Website or use the Services and your Account; (ii) permanently delete and destroy your User ID, Account Password, Card Number, PIN or other user information; and (iii) bar you from any future creation of an Account or use of the Services; all without any prior notice or liability to you or any other person. In such circumstances you will be responsible for payment of all monthly fees and charges (without any credit or refund with respect to any unused time or shortened subscription period) relating to your Account, including all unbilled fees and charges which shall immediately become due and payable. In the event of termination of this Agreement by HIT as a result of your breach of this Agreement, no remaining prepaid balance for your Account shall be refunded to you and HIT shall be entitled to receive such amounts as payment for the aforesaid termination, in addition to any other amounts it may claim from you with respect to such breach.
8.4 HIT and its service providers are not required to assess or otherwise determine the validity or legitimacy of any complaints or demands that they may receive regarding your use of the Website or any of the Services before HIT and its service providers take any remedial action that they consider, in their sole discretion, to be appropriate.
8.5 If this Agreement is terminated by you or by HIT for any reason, then: (a) this Agreement will continue to apply and be binding upon you in respect of your prior use of the Website and any of the Services, including payment of any charges accrued in connection with use of any of the Services; and (b) your user information may be permanently deleted and destroyed by HIT.
ARTICLE IX
HIT LIABILITY TO YOU AND OTHERS
DISCLAIMER
9.1 HIT AND ITS SERVICE PROVIDERS DO NOT ACCEPT ANY LIABILITY FOR YOUR USE OF THE WEBSITE, THE SERVICES, GOODS AND/OR EQUIPMENT.
9.2 YOUR USE OF THE SERVICES, GOODS, EQUIPMENT AND WEBSITE, INCLUDING ANY MATERIALS, DATA OR INFORMATION POSTED, SUBMITTED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE WEBSITE, IS AT YOUR OWN RISK. ALTHOUGH HIT TAKES REASONABLE PRECAUTIONS TO PRESERVE AND PROTECT THE MATERIAL YOU MAY UPLOAD TO OR OTHERWISE COMMUNICATE TO THE WEBSITE, YOU SHOULD NOT RELY ON THE SERVICE AS YOUR ONLY SOURCE FOR THE MATERIAL YOU PROVIDE. YOU SHOULD KEEP YOUR OWN BACKUP COPIES OF ALL MATERIALS YOU MAY USE, OR ALLOW OTHERS TO USE, IN CONNECTION WITH THE WEBSITE, GOODS, SERVICES AND/OR EQUIPMENT, INCLUDING MATERIALS POSTED OR SUBMITTED TO THE WEBSITE.
9.3 YOU ARE SOLELY RESPONSIBLE FOR PROVISIONING, CONFIGURING AND MAINTAINING ALL EQUIPMENT AND SOFTWARE YOU USE OR ALLOW OTHERS TO USE IN CONNECTION WITH THE WEBSITE AND/OR SERVICES, INCLUDING ALL COMPUTERS, TELEPHONE AND INTERNET SERVICE AND RELATED EQUIPMENT AND SOFTWARE. HIT IS NOT OBLIGATED IN ANY WAY TO PROVIDE ANY USER SUPPORT OR CUSTOMER SUPPORT WITH RESPECT TO THE USE OF THE WEBSITE, SERVICES, GOODS OR EQUIPMENT AND TO THE EXTENT IT CHOOSES, IN ITS SOLE AND UNFETTERED DISCRETION TO DO SO, IT IS NOT OBLIGATED TO CONTINUE PROVIDING SUCH SUPPORT SERVICES SHALL BE PROVIDED ON AN AS IS BASIS AND SHALL BE SUBJECT TO THE SAME DISCLAIMERS, LIMITATIONS OF LIABILITY, EXCLUSIONS OF LIABILITY, RELEASES AND INDEMNITIES THAT APPLY TO THE SERVICES.
9.4 YOU ARE SOLELY RESPONSIBLE FOR, AND BEAR ALL RISKS AND LIABILITIES ASSOCIATED WITH, ALL MATERIALS YOU MAY USE OR ALLOW OTHERS TO USE IN CONNECTION WITH THE WEBSITE, SERVICES, GOODS AND/OR EQUIPMENT INCLUDING MATERIALS POSTED OR SUBMITTED TO THE WEBSITE. YOU ARE SOLELY LIABLE AND RESPONSIBLE FOR ANY AND ALL CLAIMS AND DEMANDS MADE BY ANY OTHER PERSON ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO USE BY YOU, OR ANYONE ACCESSING THE WEBSITE OR PURCHASING OR USING SERVICES WITH YOUR USER ID, ACCOUNT PASSWORD, CARD NUMBER OR PIN, YOUR BREACH OF THIS AGREEMENT, YOUR VIOLATION OR INFRINGEMENT OF THE RIGHTS OF OTHER PERSONS, OR YOUR VIOLATION OF ANY APPLICABLE CIVIL OR CRIMINAL LAW. YOU ARE SOLELY RESPONSIBLE FOR THE MANNER IN WHICH THE MATERIALS YOU MAY USE OR ALLOW OTHER PERSONS TO USE IN CONNECTION WITH THE WEBSITE AND/OR SERVICES, INCLUDING MATERIALS POSTED TO THE WEBSITE, ARE USED BY MEMBERS AND OTHER USERS. HIT AND ITS SERVICE PROVIDERS DISCLAIM ANY AND ALL RESPONSIBILITY AND LIABILITY REGARDING ALL SUCH MATTERS.
9.5 THE OPERATION OF THE WEBSITE AND OFFER OF THE SERVICES AND GOODS MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND THE WEB SITE'S CONTROL. THE OPERATION OF THE WEBSITE AND OFFER OF THE SERVICES AND GOODS MAY NOT BE CONTINUOUS OR UNINTERRUPTED OR SECURE. WITHOUT ANY LIMITATION TO THE GENERALITY OF THE FOREGOING, THE BROADBAND PHONE SERVICE IS NOT A TELEPHONE SERVICE. THE BROADBAND PHONE SERVICE WILL NOT FUNCTION IN THE EVENT OF POWER FAILURE OR CONNECTIVITY PROBLEMS (IT BEING ACKNOWLEDGED AND UNDERSTOOD BY YOU THAT THE BROADBAND PHONE SERVICE REQUIRES A FULLY FUNCTIONAL BROADBAND CONNECTION TO THE INTERNET). THE SERVICES ARE NEITHER DESIGNED NOR INTENDED TO BE USED FOR CRITICAL COMMUNICATIONS OR IN AN EMERGENCY. IN THE EVENT THE BROADBAND PHONE SERVICE SHOULD INCLUDE ANY EMERGENCY SERVICE OR 911 CALLING FEATURES (WHICH YOU AKCNOWLEDGE AND UNDERSTAND ARE NOT PRESENTLY BEING OFFERED THROUGH THE SERVICES), SUCH EMERGENCY SERVICES OR 911 CALLING FEATURES MAY BE HINDERED OR ALTOGETHER PREVENTED IN ANY OF THE FOREGOING CONDITIONS OR IF THE WEBSITE OR SERVICES ARE UNAVAILABLE FOR ANY OTHER REASON (INCLUDING, WITHOUT LIMITATION, SUSPENSION OF YOUR ACCOUNT OR YOUR RIGHTS TO RECEIVE SERVICES). HIT DISCLAIMS ALL LIABIILTY WHICH MAY ARISE IN CONJUNCTION WITH ANY OF THE FOREGOING.
9.6 SECURITY AND PRIVACY RISKS CANNOT BE ELIMINATED. PASSWORD PROTECTION MAY NOT PREVENT UNAUTHORIZED ACCESS TO MATERIALS OR INFORMATION YOU MAY USE OR ALLOW OTHER PERSONS TO USE IN CONNECTION WITH THE SERVICES, INCLUDING MATERIALS POSTED OR SUBMITTED TO OR THROUGH THE WEBSITE.
9.7 HIT AND ITS SERVICE PROVIDERS ARE UNDER NO OBLIGATION TO VERIFY THE IDENTITY OF ITS ACCOUNT HOLDERS OR OTHER USERS OF THE WEBSITE AND/OR SERVICES. HIT AND ITS SERVICE PROVIDERS DO NOT CONTROL THE USE OF THE WEBSITE AND/OR SERVICES AND ARE UNDER NO OBLIGATION TO MONITOR, SCREEN OR POLICE THE USE OF THE WEBSITE AND/OR SERVICES TO ENSURE COMPLIANCE WITH APPLICABLE LAWS OR THIS AGREEMENT. YOU MAY FIND SOME OF THE MATERIALS POSTED BY OTHER USERS TO BE OFFENSIVE, HARMFUL, INACCURATE OR DECEPTIVE. YOU SHOULD USE CAUTION AND COMMON SENSE WHEN USING THE WEBSITE AND RELATED SERVICES.
9.8 HIT AND ITS SERVICE PROVIDERS ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE ARISING FROM OR RELATED TO ANY MISPRINTS OR ERRORS ON THE WEBSITE, INCLUDING THE UNAVAILABILITY OF ANY PRODUCT OR SERVICE YOU ORDER, ANY DELAY IN THE AVAILABILITY OF GOODS OR SERVICES, OR ANY CHANGES IN THE PRICE OF GOODS OR SERVICES.
9.9 THE WEBSITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS (INCLUDING, WITHOUT LIMITATION, USE OF ANY 911 FEATURE OR OTHER EMERGENCY SERVICE FEATURE WHICH MAY IN THE FUTURE BE OFFERED, IN HITS SOLE DISCRETION), AND WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, OR DURABILITY, ALL OF WHICH ARE HEREBY DISCLAIMED BY THE WEB SITE AND ITS SERVICE PROVIDERS TO THE FULLEST EXTENT PERMITTED BY LAW.
9.10 THROUGH YOUR USE OF THE WEBSITE AND SERVICES, YOU MAY HAVE THE OPPORTUNITY TO ENGAGE IN COMMERCIAL TRANSACTIONS WITH OTHER PERSONS. ALL SUCH TRANSACTIONS ARE AT YOUR OWN RISK. HIT AND, UNLESS THEY EXPRESSLY AGREE OTHERWISE, ITS SERVICE PROVIDERS ARE NOT PARTIES TO ANY SUCH TRANSACTIONS AND DISCLAIM ANY AND ALL LIABILITY REGARDING ALL SUCH TRANSACTIONS.
9.11 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HIT AND ITS SERVICE PROVIDERS MAKE NO REPRESENTATION, WARRANTY OR CONDITION THAT:
(a) THE GOODS AND/OR SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE COMPATIBLE WITH YOUR COMPUTER AND RELATED EQUIPMENT, AND SOFTWARE;
(b) THE GOODS AND/OR SERVICES WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR WILL BE FREE OF ERRORS OR THAT ANY ERRORS WILL BE CORRECTED;
(c) THE GOODS AND/OR SERVICES, THE INFORMATION OBTAINED THROUGH THE WEBSITE, OR ANY RESULTS THAT MAY BE OBTAINED THROUGH THE USE OF THE WEBSITE AND/OR SERVICES WILL BE ACCURATE, COMPLETE, RELIABLE, TIMELY, OR AUTHENTIC;
(d) HIT WILL MONITOR THE WEBSITE OR ANY MATERIALS THAT YOU OR THIRD PARTIES POST TO THE WEBSITE OR ANY COMPONENT THEREOF OR PROVIDE THROUGH USE OF THE SERVICES;
(e) THE QUALITY OF ANY GOODS, SERVICES, EQUIPMENT, INFORMATION OR OTHER MATERIALS PURCHASED OR OBTAINED THROUGH THE WEBSITE OR ANY GOOD OR SERVICE WILL MEET YOUR EXPECTATIONS;
(f) THE USE OF THE WEBSITE, INCLUDING THE BROWSING AND DOWNLOADING OF ANY MATERIALS FROM THE WEBSITE, AND THE USE OF SERVICES WILL BE FREE OF VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS OR BUGS;
(g) THE USE OF THE WEBSITE, INCLUDING THE DOWNLOADING AND REPRODUCTION OF MATERIALS POSTED OR SUBMITTED TO THE WEBSITE, OR THE USE OF ANY SERVICES AND/OR GOODS WILL NOT INFRINGE THE INTELLECTUAL PROPERTY OR OTHER RIGHTS OF ANY PERSON; OR
AND THE WEB SITE AND ITS SERVICE PROVIDERS DISCLAIM ANY AND ALL LIABILITY REGARDING SUCH MATTERS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
9.12 ADVICE AND INFORMATION PROVIDED BY HIT OR ITS SERVICES PROVIDERS OR THEIR REPRESENTATIVES, OR THROUGH THE WEBSITE, WHETHER ORAL OR WRITTEN, WILL NOT CREATE ANY REPRESENTATION, WARRANTY OR CONDITION OR VARY OR AMEND THIS AGREEMENT, INCLUDING THE ABOVE DISCLAIMERS, LIABILITY EXCLUSIONS, LIABILITY LIMITATIONS, RELEASE AND INDEMNITY PROVISIONS, AND YOU MAY NOT RELY UPON ANY SUCH ADVICE OR INFORMATION.
EXCLUSION OF LIABILITY
9.13 HIT AND ITS SERVICE PROVIDERS WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OF USE, PERSONAL INJURY, LOSS OF PRODUCTION, LOSS OF INCOME OR PROFITS (ANTICIPATED OR OTHERWISE), LOSS OF MARKETS, ECONOMIC LOSS, SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, ARISING FROM, IN CONNECTION WITH, OR RELATING TO THE USE OF THE WEBSITE, SERVICES, GOODS AND/OR EQUIPMENT BY YOU OR ANY OTHER PERSON, AND REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY HIT OR ITS SERVICE PROVIDERS OR ANY OTHER PERSON FOR WHOM ANY OF THEM IS RESPONSIBLE, AND NOTWITHSTANDING THAT HIT OR ITS SERVICE PROVIDERS MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED BY YOU OR ANY OTHER PERSON.
LIMITATION OF LIABILITY
9.14 WITHOUT LIMITING THE OTHER PROVISIONS OF THIS Article IX , IN NO EVENT WILL HIT AND ITS SERVICE PROVIDERS EVER BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, PENALTIES, LOSSES, EXPENSES, DISBURSEMENTS AND COSTS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, AND REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY HIT OR ITS SERVICE PROVIDERS OR ANY PERSON FOR WHOM EITHER HIT OR ITS SERVICE PROVIDERS ARE RESPONSIBLE, IN AN AMOUNT EXCEEDING THE LESSER OF: (i) CAD$25 (CDN), AND (ii) THE PRO-RATED AMOUNT YOU PAID TO HIT FOR THE ACQUISITION OF THE GOODS AND/OR SERVICES WHICH ARE THE SUBJECT OF THE CLAIM.
RELEASE
9.15 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE HIT AND ITS SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE AND KIND WHATSOEVER AND HOWSOEVER ARISING, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER EXIST, WHICH ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE WEBSITE, GOODS, SERVICES AND/OR EQUIPMENT.
9.16 The exclusion of certain warranties and the limitation of certain liabilities is prohibited by law in some jurisdictions. Such legal limitations may apply to you and in the event they do, the affected provisions of these Terms and Conditions shall be amended as necessary to make such provisions comply with such applicable laws.
9.17 This Article shall survive the termination of this Agreement.
ARTICLE X
INDEMNITY
10.1 YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HIT AND ITS SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS (COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, PENALTIES AND COSTS, INCLUDING WITHOUT LIMITATION REASONABLE LEGAL FEES AND EXPENSES, INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM OR DEMAND ARISING OUT OF, RELATED TO, OR CONNECTED WITH USE OF THE WEBSITE, GOODS, EQUIPMENT AND/OR SERVICES BY YOU OR ANYONE ACCESSING THE WEBSITE AND/OR SERVICES USING YOUR USER ID, ACCOUNT PASSWORD, CARD NUMBER, PIN AND/OR EQUIPMENT. YOU WILL ASSIST AND CO-OPERATE AS FULLY AS REASONABLY REQUIRED BY THE INDEMNIFIED PARTIES IN THE DEFENCE OF ANY SUCH CLAIM OR DEMAND.
10.2 This Article shall survive the termination of this Agreement.
ARTICLE XI
PRIVACY
11.1 HIT and its service providers do not collect, use, or disclose your personal information without your prior consent and knowledge except in accordance with the Privacy Policy. The Privacy Policy may be found at http://www.hitcalls.com/privacy_policy.html. HIT may change the Privacy Policy from time to time in its sole discretion. By accepting this Agreement, and each time you use the Service, you consent to HIT collection, use and disclosure of your personal information in accordance with the Privacy Policy without any further notice or any liability to you or any other person.
11.2 You also consent to HIT and its service providers monitoring, screening, policing and editing your use of the Services and the use of your account, without any notice or any liability to you or any other person. The Website and its service providers are not under any obligation to engage in such monitoring, screening, policing and editing, but may do so as they consider appropriate in their sole discretion, without notice to you or any other person.
ARTICLE XII
GOVERNING LAW AND DISPUTE RESOLUTION
12.1 This Agreement, your use of the Website and Services, all transactions through the Website, and all related matters are governed solely by the laws of the Province of Ontario, Canada and applicable federal laws of Canada in the Province of Ontario, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws or the determination of forum conveniens.
12.2 Any dispute between HIT and you or any other person arising from, in connection with or relating to the Website, the Goods, Equipment, Services, this Agreement, any transaction through the Website or any related matters must be resolved before the Courts of the Province of Ontario, Canada sitting in the City of Toronto, and you hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those Courts in respect of any such dispute.
12.3 Any claim or cause of action you may have arising from, in connection with, or relating to your use of the Website, Goods, Services, Equipment, this Agreement, any transaction through the Website or any related matters must be commenced in a court of competent jurisdiction in Toronto, Ontario, Canada within one (1) year after the claim or cause of action arises, after which time the claim or cause of action is forever barred, regardless of any statute or law to the contrary.
ARTICLE XIII
OWNERSHIP AND USE OF THE SERVICE AND ITS CONTENT
13.1 The Website and all of its content, including data, photographs, images, icons, software, and other elements, are owned by or licensed to HIT or its suppliers. The Website and all of its content are protected by domestic and international copyright, trade-mark, and other laws. Without limiting the foregoing, the entire content of the Website is, under domestic and international copyright laws, a collective work owned by HIT. Your use of the Website and its content does not transfer to you any ownership or other rights in the Website or its content.
13.2 The Website and its content may not be used for any purpose not expressly permitted by this Agreement. In particular, except as expressly stated otherwise in this Agreement, the Website and its content may not be copied, imitated, reproduced, republished, uploaded, posted, transmitted, modified, indexed, catalogued, or distributed in any way, in whole or in part, without the express prior written consent of HIT. You may not use any of the software that is used in the operation of the Website, Services, Goods and/or Equipment except as expressly permitted in these Terms and Conditions. You may not copy any of the software used in the operation of the Website, Services, Goods and/or Equipment. You may not reproduce, copy, duplicate, sell, or resell any part of the Website or access to the Website, Services, Goods and/or Equipment.
13.3 You may access and browse the Website using a commercially available, SSL-capable Web browser. You may print or download the pages of the Website and its content for your personal, non-commercial use, provided that you do not modify any of the Web pages or content and you do not remove or alter any visible or non-visible identification, marks, notices, or disclaimers.
ARTICLE XIV
SUBMISSION OF IDEAS & INFORMATION
14.1 All information you provide through the Service, including your Account information (such as name and email addresses), payment information (such as credit card number, cardholder name and expiration date) and transaction-related information must be true, accurate, current and complete. You must also provide HIT with updated registration information and payment information within 30 days of any changes thereto. HIT and its service providers will rely on the information you provide. You will be responsible for any and all loss, damage, or additional costs that you, HIT or its service providers or others may incur as a result of your submission of any false, incorrect or incomplete information or your failure to update your Account information within 30 days of any changes. HIT may, in its sole discretion, require a copy of a government-issued form of identification before making any changes to your registration information or payment information.
ARTICLE XV
ADVERTISEMENTS
15.1 The Web Site may display advertisements on the Service, including on the pages that display Materials you post or submit to the Service. The manner, mode and extent of the advertising will be determined by HIT in its sole discretion, and is subject to change at any time and without any notice or any liability to you or any other person.
ARTICLE XVI
OTHER SITES
16.1 The Website may include advertisements for, and links to, other sites and businesses operated by third parties ("Other Sites"). Other Sites are independent from the Website, and HIT has no responsibility or liability for or control over Other Sites, their business, goods, services, or content. Links to Other Sites are provided solely for your convenience. HIT does not sponsor or endorse any Other Sites or their content or the goods or services available through those sites. Your use of Other Sites and your dealings with the owners or operators of Other Sites is at your own risk, and you may not make any claim against HIT arising out of your use of any Other Sites or your dealings with the owners or operators of any Other Sites. The provisions of this Agreement under the Articles headed Our Liability and Indemnity apply, with all necessary modifications, to your access to and use of any Other Sites and their business, goods, services, and content.
ARTICLE XVII
LINKING AND FRAMING THE WEB SITE
17.1 Any links to the Website or its content without the express permission of HIT are strictly prohibited. HIT reserves the right to cancel and revoke any permission it may give to link to the Website at any time, for any reason, and without any notice or liability to you or any other person.
17.2 You may not use HITs trade name or any of the Marks or otherwise indicate, suggest or imply that HIT endorses your use of the Website, the Services and/or Goods.
17.3 The framing of the Website or any of its content in any form and by any method is strictly prohibited.
ARTICLE XVIII
UNSOLICITED SUBMISSIONS
18.1 HIT does not accept or consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new or improved goods, services or technologies, product enhancements, processes, materials, marketing plans, or new product names. The purpose of this policy is to avoid potential misunderstandings or disputes. Accordingly, please do not send any unsolicited ideas, suggestions or other materials ("Submissions") to HIT.
18.2 If you send Submissions to HIT or the Website, you automatically grant to HIT and its assigns a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, sub-licensable right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, transmit, display and otherwise exploit the Submissions or any ideas, concepts, know-how or techniques associated with the Submissions for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of HIT or its successors and assigns, and you agree, represent and warrant that all moral rights in the Submissions are waived.
ARTICLE XIX
CONTESTS
19.1 From time to time the Web Site may make contests, sweepstakes or other promotions available to Account holders and other Service users. All contests are governed by this Agreement and the applicable contest rules for such contest. By participating in a contest through the Service, you signify your agreement and acceptance of this Agreement and the applicable Contest Rules.
ARTICLE XX
TRANSACTION AGREEMENTS
20.1 All transactions through the Services are governed by this Agreement and any applicable Transaction Agreement. By participating in a transaction through the Service, you signify your agreement and acceptance of the applicable Transaction Agreement.
ARTICLE XXI
NOTICES
21.1 Notices or communications to HIT in connection with this Agreement must be in writing and must be sent to HIT by both email to . and by courier or regular pre-paid post to ., Toronto, Ontario, Canada .. Notices will be deemed to be received by HIT upon the earlier of: (a) your receipt of HIT express acknowledgement of receipt of email transmission; (b) two (2) business days after deposit with a nationally recognized overnight courier; or (c) ten (10) business days after deposit in the U.S. or Canadian postal mail, provided that if there is a slow-down or other labour dispute which affects the delivery of a notice by mail then it will be deemed to be received by HIT at the actual time of delivery.
21.2 Notices to you in connection with this Agreement may be sent by either email to the email address supplied for your Account or otherwise provided by you or by courier or regular pre-paid post to your postal address or the postal address supplied for your account. Notices will be deemed to be received by you upon the earlier of: (a) HITs receipt of your express acknowledgement of receipt of email transmission; (b) two (2) business days after deposit with a nationally recognized overnight courier; or (c) ten (10) business days after deposit in the U.S. or Canadian postal mail, provided that if there is a slow-down or other labour dispute which affects the delivery of a notice by mail then it will be deemed to be received by you at the actual time of delivery.
ARTICLE XXII
GENERAL PROVISIONS
22.1 If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable in any jurisdiction, then that provision shall, to the extent possible and with respect to such jurisdiction only, be reformed so as to meet the minimum requirements imposed by such jurisdiction. To the extent the provision cannot be reformed, it shall be deemed to be severed from the rest of this Agreement for such jurisdiction only and shall not affect the validity and enforceability of any remaining provisions.
22.2 No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
22.3 You and HIT are independent contractors, and no agency, partnership, joint venture, employment or franchise relationship is intended or created by this Agreement or your use of the Website and/or Services.
22.4 This Agreement, as amended from time to time by HIT, and any applicable transaction agreements and contest rules and any other document incorporated by reference, constitute the entire agreement between you and HIT relating to your use of the Website and Services and supersede all previous agreements, written, oral or otherwise, between you and HIT with respect to your use of the Website, Goods, Equipment and Services. You may also be a party to a software licence agreement regarding any software you have downloaded from or through the Website or a lease agreement regarding any Equipment you have obtained from HIT.
22.5 The provisions of this Agreement will enure to the benefit of and be binding upon HIT and its service providers and their respective successors and assigns, and you and your heirs, executors, administrators, successors and personal representatives (as the case may be). You may not assign this Agreement or your rights and obligations under this Agreement without the express written consent of HIT, which may be withheld in HIT's sole discretion. HIT and its service providers may assign this Agreement and their respective rights and obligations under this Agreement without your consent or knowledge.
22.6 The parties to this Agreement have expressly requested and required that this Agreement, and all other related documents, be drawn up in the English language only. Les parties conviennent et exigent express.ment que ce Contrat et tous les documents qui s'y rapportent soient r.dig.s en anglais seulement.
22.7 Any rights not expressly granted by this Agreement are reserved by HIT.
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