Terms of Use Agreement

 

These terms and conditions of use for the Smart Serve Ontario training website at smartserve.ca (the “Website”), and domain names controlled by Smart Serve Ontario that link to the website, constitute a legal agreement and are entered into by and between you and Smart Serve Ontario (“Smart Serve” “we,” “us,” “our”). The following terms and conditions, together with any documents and/or additional terms they expressly incorporate by reference (collectively, the “Agreement”), govern your access to and use of the Website, including any content, functionality, products and services offered on or through the Website.

BY USING THE WEBSITE OR BY CLICKING TO ACCEPT THESE TERMS AND CONDITIONS, YOU ACCEPT AND AGREE TO BE BOUND AND COMPLY WITH THIS AGREEMENT AND OUR PRIVACY POLICY, FOUND AT HTTPS://SMARTSERVE.CA/PRIVACY-POLICY/, INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR THE PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE WEBSITE.

1. Changes to this Agreement

1.1 Smart Serve reserves the right in its sole discretion to revise and update these terms and conditions at any time and from time to time, without notice to you. Any and all such amendments are effective immediately upon posting on the Website and apply to your access to and continued use of the Website. By continuing to use the Website after an amendment is posted, you accept and agree, without limitation or qualification, to be bound by this Agreement, as amended. You agree to review this Agreement periodically in order to be aware of amendments and you understand that the most recent version of this Agreement will be located on the Website.

2. Your Use of the Website and Account Set-Up and Security

2.1 The Website, including access to Smart Serve products or use of services through the Website, may require user registration and creation of a user account (a “Smart Serve Account”). It is a condition of your use of the Website that all the information you provide on the Website and to register for a Smart Serve Account is correct, current, and complete and is updated from time to time by you to ensure its accuracy. Smart Serve Accounts may not be shared with another user.

2.2 If you provide any information in your Smart Serve Account that is untrue or inaccurate or if Smart Serve has reasonable grounds to believe that such information is untrue or inaccurate, Smart Serve may suspend or terminate your access to your smart Serve Account and the products and services available through your Smart Serve Account.

2.3 You may be required to show valid government-issued identification to be able to use some Smart Serve products and services through the Website. You may also be required to use an Internet-connected computer device with a web camera to avail of Smart Serve products and services through the Website. You are solely responsible for obtaining and maintaining all equipment, computers, and communications required to access the Website and your Smart Serve Account and for all expenses related thereto.

2.4 Although we do our best to protect your personal information, unfortunately the transmission of information via the Internet is not completely secure and we cannot guarantee the security of your personal information transmitted by you to our Website. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website.

2.5 Your provision of registration information and any submissions you make to the Website through any functionality such as applications, exam submissions, e-mail, message boards, personal or interest group web pages, profiles, forums, bulletin boards, contact submission forms and other such functions (collectively, “Interactive Functions”) constitutes your consent to all actions we take with respect to such information consistent with our Privacy Policy, found at https://smartserve.ca/privacy-policy/.

2.6 Any username, password, or any other piece of information chosen by you, or provided to you as part of our security procedures, must be treated as confidential, and you must not disclose it to any person or entity other than Smart Serve upon request. You must exercise caution when accessing your Smart Serve Account from a public or shared computer so that others are not able to view or record your password or other personal information. You understand and agree that should you register for and create a Smart Serve Account, your Smart Serve Account is personal to you and you agree not to provide any other person with access to the Website or portions of it using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you logout from your Smart Serve Account at the end of each session. You are responsible for any password misuse or any unauthorized access.

2.7 We reserve the right at any time and from time to time, to disable or terminate your Smart Serve Account, 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 any provision of this Agreement or your Facilitator Agreement (defined below).

3. Online Purchases and Payment

3.1 Additional terms and conditions, applicable to online tests, courses, orders, purchases or transactions for the acquisition or licensing of Smart Serve materials and certification services, including the licensing of “Responsible Alcohol Beverage Sales and Service Training Program” training materials and final test tokens to access Smart Serve’s online certification test, may be applicable to parts or features of your Smart Serve Account, and are hereby incorporated by reference into this Agreement. Products and services purchased or licensed through the Website may be subject to expiry, including your access to the Content in your Smart Serve Account, and you are solely responsible for using such products and services before the applicable expiry date.

3.2 You agree to pay Smart Serve the fees plus applicable taxes to purchase Smart Serve products and services (the “Fees”) as disclosed on the Website at the time of purchasing such products and services. Once paid, Fees are non-refundable, including for any for any expired or unused products or services, subject to any additional rights granted by Smart Serve to a Facilitator (defined below) in a separate Facilitator Agreement (defined below).

3.3 The credit card or other payment information you give to purchase or license products and services provided through the Website must be accurate and complete. Smart Serve uses a third party payment processing provider (the “Payment Processor”) in order to facilitate the payment of Fees. When you provide your information for payment processing, that information, along with other relevant personal information about you, is provided directly to the Payment Processor for the purposes of facilitating such payment. You hereby consent to the collection, use and disclosure of your personal information by and to the Payment Processor for the foregoing purposes. You further acknowledge and agree that the Payment Processor may also collect your personal information and/or other information about you and the collection and use of such information will be subject to the terms of such Payment Processor’s privacy policy, if any. You acknowledge and agree that we shall have no liability to you in connection with the use and disclosure of your personal information when collected by the Payment Processor.

3.4 Smart Serve reserves the right, in its sole discretion, to make any necessary updates, modifications and adjustments at any time without prior notice to descriptions of products, services, and prices due to errors, discontinuation of goods or services, changing costs, new market conditions or any other business factor. All prices are in Canadian dollars unless otherwise indicated, and subject to applicable provincial and federal sales tax and duties. Details are provided at time of purchase. You will be informed of total charges and asked to confirm the transaction before it is charged to your credit card. You are responsible for all Fees and taxes incurred by you. Unless otherwise provided, all purchases must be prepaid, are final and non-refundable.

3.5 As the use of a credit card or debit card account, or the making of an electronic funds transfer may be limited by your agreement with your financial institution and/or by applicable law, Smart Serve and its service providers shall not be liable if any payment of Fees by you is not processed as a result of any such limitation.

4. Ownership

4.1 Smart Serve Content

(a) You understand and agree that, subject to Section 4.2(a) below, the Website and its contents, features, and functionality, including, but not limited to, all material, slides, presentations, “Responsible Alcohol Beverage Sales and Service Training Program” training materials, information in text, graphical video and audio forms, images, reports, articles, publications, data, databases, charts, graphics, photographs, video, audio, displays, illustrations, maps, interfaces, web pages, text, files, software, code, design, presentation, selection, and arrangement (“Smart Serve Content”) are the property of Smart Serve, its licensors, or other providers of such material, and are protected in all forms by Canadian and international intellectual property laws including without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.

(b) The Smart Serve name, its trademarks and logos and all related names, logos, product and service names, designs, images and slogans are trademarks of Smart Serve or its affiliates or licensors. You must not use such trademarks and logos without the prior written permission of Smart Serve. Other names, logos, product and service names, designs, images and slogans mentioned, or which appear on the Website are the trademarks of their respective owners. Use of any such property, except as expressly authorized, shall constitute an infringement or violation of the rights of the property owner and may be a violation of federal, provincial or other laws and could subject the infringer to legal action.

(c) For the purposes of this Agreement, “Content” refers to Smart Serve Content and User Content collectively. Except for the rights you may have in User Content (defined below) contributed by you, you do not acquire ownership right or any implied right to any Content obtained, accessed or viewed through the Website, and the posting of information or materials on the Website does not constitute a waiver of any rights in such information, materials and/or Content.

4.2 User Content

(a) Smart Serve claims no ownership or control over any content including any and all material, information in text or other data submitted, posted or displayed by you on or through Website in accordance with this Agreement (the “User Content”). You or a third party licensor, as the case may be, retain all rights to any User Content you submit, post or display on or through Website and you are responsible for protecting those rights.

(b) By submitting, posting, uploading or displaying User Content on or through the Website, you grant Smart Serve a royalty-free, perpetual, irrevocable, unrestricted, non-exclusive, worldwide license to use, sublicense, collect, reproduce, disclose to third parties, store, compile, download, adapt, translate, modify, make derivative works from, transmit, publish, distribute, publicly perform or display such User Content for any purpose, using any form, media or technology now known or later developed without providing compensation to you or anyone else, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of Smart Serve.

(c) In addition, as a condition of submitting User Content, you hereby: (i) agree to waive all moral rights or other rights of authorship in any User Content in favour of Smart Serve; (ii) consent to your name appearing as the author or contributor of any such User Content, where applicable, and to the disclosure and/or display of such information and any other information which appears in or is associated with such User Content; (iii) acknowledge and agree that Smart Serve is not responsible for any loss, damage, or corruption that may occur to your User Content; and (iv) acknowledge and agree that any User Content you provide for display on the Website will be non-confidential.

(d) You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein with respect to any User Content submitted.

5. License to use Content

5.1 Subject to payment by you of any applicable Fees, Smart Serve hereby grants you a personal, limited, revocable, non-transferable and non-exclusive license to access and use the Content in your Smart Serve Account for personal, non-commercial and not-for-profit use, which may only be used for non-commercial and lawful personal use and not for further reproduction, publication, or distribution of any kind on any medium whatsoever. Notwithstanding the foregoing, authorized Smart Serve facilitators (“Facilitators”) who have entered into a separate facilitator agreement with Smart Serve (“Facilitator Agreement”) are additionally granted a license to use and download the Smart Serve Content in their Smart Serve Account for educational purposes only and subject to the terms of their Facilitator Agreement in addition to this Agreement. As a condition of your access and use of Content, you agree that you may use the Website only for lawful purposes and in accordance with this Agreement.

5.2 Other than as specifically described herein or in your Facilitator Agreement, Content may not be directly or indirectly copied, stored, downloaded, compiled for an internal database, imitated, reproduced, used to create derivative works, republished, uploaded, posted, transmitted, modified, indexed, catalogued, merged with other data, mirrored, publicly displayed, or distributed in any way, in whole or in part, without the express prior written consent of Smart Serve or, in the case of User Content, the owner of the rights to the User Content.

6. Prohibited Activities

6.1 You may not, and may not allow others to, directly or indirectly: (a) use the Website and the Content for any purpose not expressly permitted by this Agreement or your Facilitator Agreement; (b) sell, modify or attempt to modify the Content in any way or reproduce or publicly display, perform or distribute or otherwise use any Content for any public, commercial or non-personal purpose, including, without limitation, use of the Content on any other website, subject to any additional rights granted by Smart Serve to a Facilitator in a separate Facilitator Agreement; (c) use the Website in any manner that could damage, disable, overburden, impair, interfere with the security of, negatively affect the functioning of, or otherwise abuse the Website, or any services, system resources, accounts, servers, networks, affiliated or linked sites, connected to or accessible through the Website; (d) disrupt or interfere with any other person’s use or enjoyment of the Website or affiliated or linked sites, or any services thereof; (e) use any software which is used in the operation of the Website except while you are browsing the Website or performing other activities provided through the Website, as permitted; (f) copy any of the software used in the Website unless expressly permitted to do so by Smart Serve; (g) copy or imitate, in whole or in part, the design of the Website, or any part thereof; (h) attempt to breach the security and/or authentication measures of the Website; (i) use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website; (j) introduce any viruses, trojan horses, worms, logic bombs, or other material to the Website that is malicious or technologically harmful; (k) attack the Website via a denial-of-service attack, distributed denial-of-service attack, flooding, mailbombing or crashing; or (l) otherwise attempting to interfere with the proper working of the Website.

6.2 Users are not permitted to modify Content from the Website or remove or alter any visible or non-visible identification, marks, copyright, trademark or other proprietary rights notices, logos, or disclaimers visible on Content.

6.3 If you print off, copy or download any part of our Website or Content in breach of this Agreement, your right to use the Website will cease immediately and you must, at our option, return or destroy any copies of the Content you have made. This does not affect the other rights and remedies available to us.

7. User Content

7.1 When using the Website, you warrant and agree:

(a) To use the Website in compliance with all applicable laws, including, without limitation, any laws regarding the export of data or software, patent, trademark, trade secret, copyright, or other intellectual property, legal rights (including the rights of publicity and privacy of others);

(b) To only post User Content that contains accurate information regarding the poster of the User Content and that any User Content you post does not misrepresent the origin of the User Content, impersonate any person or falsely state or otherwise misrepresent an affiliation with another person;

(c) To not post or transmit any unlawful, threatening, abusive, libellous, defamatory, discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or other such legally prohibited ground, hateful, obscene, vulgar, pornographic, profane or indecent material or information of any kind, such determination to be made in Smart Serve’s sole discretion, including any submission constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, provincial, national or international law or regulation;

(d) To not post or transmit any User Content which violates or infringes upon the rights of others, including material which is an invasion of privacy or publicity rights or which is protected by any intellectual property rights, including, without limitation, copyright, patent, trade secret, trademark or other proprietary rights herein, or derivative works with respect thereto, without first obtaining permission from the owner or rights holder;

(e) To not post or submit any User Content which attempts to exploit, harm, or solicit passwords or personal identifying information for commercial or unlawful purposes from other users;

(f) To not cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, or alarm any other user;

(g) To not post or transmit junk mail, chain letters, unsolicited mass mailing or spam; and

(h) To not use the Website for commercial purposes, including, without limitation, posting, uploading or transmitting any submissions which contain advertising or which engage in commercial activities and/or sales, or which involve contests, sweepstakes, barter and/or advertising.

7.2 Smart Serve may review User Content before or after it is posted and may refuse to post any User Content to the Website. Smart Serve reserves the right, in its sole discretion and without notice, to edit or remove, refuse to accept, post, display or transmit any User Content for any or no reason, including any violation of this Agreement. You acknowledge and agree that Smart Serve may, in its sole discretion and without notice, monitor or have monitored the Website periodically and disclose any information as necessary to satisfy any law, regulation or other governmental or Court request, to operate the Website properly or to protect itself or other users of the Website. Any such disclosure shall be in accordance with Smart Serve’s Privacy Policy which may be found at https://smartserve.ca/privacy-policy/.

7.3 ALTHOUGH SMART SERVE MAY FROM TIME TO TIME MONITOR OR REVIEW USER CONTENT AS STATED ABOVE, SMART SERVE DOES NOT HAVE ANY OBLIGATION TO DO SO, AND DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY USER CONTENT POSTED ON THE WEBSITE. USER CONTENT REPRESENTS THE VIEWS AND OPINIONS OF THE PERSON(S) POSTING THE USER CONTENT AND DOES NOT REPRESENT THE VIEWS OR OPINIONS OF SMART SERVE, ITS DIRECTORS, OFFICERS OR EMPLOYEES. SMART SERVE DOES NOT ASSUME ANY LIABILITY, AND SPECIFICALLY DISCLAIMS ANY LIABILITY, TO YOU OR ANY OTHER PERSON ARISING FROM SMART SERVE’S DECISION TO MONITOR OR NOT TO MONITOR USER CONTENT CONSISTENTLY OR AT ALL. YOU, AND NOT SMART SERVE, REMAIN SOLELY RESPONSIBLE FOR THE CONTENT, ACCURACY AND USE OF YOUR USER CONTENT.

8. Tests, Certification and Audits

8.1 The Website includes the ability for users to independently take and submit online tests in order to receive a Smart Serve certification pursuant to the “Responsible Alcohol Beverage Sales and Service Training Program for Ontario”. Online tests may be offered in conjunction with Smart Serve’s third party service providers.

8.2 Smart Serve reserves the right to audit all completed tests. Should Smart Serve or its third party service providers determine that you have submitted any false information in the provision of your test, received unapproved assistance in taking a test, or cheated on a test, your certificate will be voided. Smart Serve also reserves the right to complete user audits at any point after you have received a Smart Serve certification. As a result of such audit or for any other reasonable cause as determined by Smart Serve in its absolute discretion, Smart Serve reserves the right to revoke your certification at any time. Refunds will not be issued for voided or revoked certifications.

9. Analytical Data

9.1 Extracted Data. You agree that, except as otherwise set forth in this Agreement, Smart Serve shall be entitled to generate data or information with respect to your use of the Website and Smart Serve products and services based on your use of the Website (“Usage Data”). Usage Data will be considered your confidential information. Smart Serve may extract and create anonymized data from Usage Data in aggregate from only (“Extracted Data”). Extracted Data shall not (a) contain, disclose or otherwise identify, directly or indirectly, your name or any other user’s name, or (b) contain any information which could reasonably be used to identify you. Smart Serve shall exclusively own all rights, including all intellectual property rights, in and to all Extracted Data. You acknowledge and agree that Smart Serve owns all Extracted Data.

9.2 Smart Serve may invite you to participate in surveys. Smart Serve understands that any information submitted in response to a Smart Serve survey (“Survey Data”) will be considered confidential information. Smart Serve will only use Survey Data collected from Smart Serve surveys: (a) for targeted communications between Smart Serve and you, and (b) at an aggregate level by collecting Survey Data provided by Smart Serve survey respondents, analyzing the Survey Data and presenting reports based on the aggregated Survey Data collected (“Aggregated Survey Data”). Smart Serve shall not be prevented from sharing with others the Aggregated Survey Data collected through Smart Serve surveys or from storing, downloading, adapting, transmitting, making derivative works from, publishing, displaying or otherwise using the Aggregated Survey Data.

10. No Advice

10.1 The Website and the Content are for informational, training, and demonstrative purposes only, and may not be relied upon as professional, legal, or other advice. You are responsible for obtaining appropriate advice from external sources prior to acting upon any information available at or through the Website.

11. Privacy policy

11.1 Smart Serve collects, uses and discloses personal information in accordance with its Privacy Policy, which is incorporated by reference into this Agreement and available by clicking here https://smartserve.ca/privacy-policy/.

11.2 This Privacy Policy may be changed by Smart Serve from time to time, in its sole discretion, without notifying or being liable to you or any other person, by making an amended Privacy Policy accessible through the Website. Each time you use the Website, you consent to the collection, use and disclosure of your personal information by Smart Serve in accordance with the Privacy Policy as it then reads.

11.3 You acknowledge and agree that you have read our Privacy Policy and you consent to the collection, use and disclosure of your personal information by Smart serve in accordance with the terms of and for the purposes set out in our Privacy Policy.

12. Other sites

12.1 The Website may contain links to third party sites (“Linked Sites”) or direct users to third party sites as part of the services available through the Website, including to Smart Serve’s third party proctoring service provider for the proctoring of online tests and the provider of the Website’s learning management system. When you access such Linked Sites, you are doing so at your own risk and are subject to the terms and conditions of use of the Linked Sites in question and Smart Serve has no responsibility or liability whatsoever to you, or any third party, for the content or accuracy of any Linked Sites materials or the actions of the third party Linked Site provider.

12.2 Linked Sites may include links to certain social media features that enable you to link or transmit on your own or using certain third-party websites, certain content from the Website. You may only use these features when they are provided by us and solely with respect to the content identified.

12.3 You acknowledge and agree that Smart Serve may have the need to utilize subcontractor(s) or third party service providers in performance of the services available through the Website or otherwise in connection with the operation of the Website. The Website may contain features or functionalities, including widgets, that designed to interoperate (“Integrations”) with third party services, such as the third party proctoring service and learning management system. If a third party service provider for which Smart Serve offers an Integration ceases to make such third party service available, Smart Serve, in its sole discretion, may cease providing such Integration and the corresponding features of the Website or a service to you without entitling you to any refund, credit, or other compensation.

12.4 Your access and use of Linked Sites and third party services provided by subcontractors or service providers as part of the Website functionality, products and services (“Third Party Services”) is governed solely by the terms and conditions of such Third Party Services, and Smart Serve does not endorse, is not responsible or liable for, and makes no representations and warranties as to any aspect of such Third Party Services, including their content or the manner in which they handle data and your personal information (including User Data) or any interaction between you and the provider of such Third Party Services. You acknowledge and agree that Smart Serve is not responsible or liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access or use of any such Third Party Services, or any reliance on the privacy practices, data security processes or other policies of such Third Party Services. You may be required to register for or log into such Third Party Services on their respective websites or service. By using any Third Party Services in connection with your use of the Website, you are expressly permitting Smart Serve to permit the provider of that Third Party Service to access and use: (a) User Data and your personal information solely as required for the interoperation of that Third Party Service with the services provided through the Website; or (b) User Data and your personal information solely as necessary to facilitate the use or enablement by you of such Third Party Services. Smart Serve is not responsible for any disclosure, modification or deletion of User Data resulting from access by any Third Party Service. The foregoing shall survive the expiration or termination of this Agreement.

13. Disclaimers

13.1 YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR MATERIALS ACCESSED OR ATTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE ITS CONTENT, AND ANY SERVICES OR MATERIALS ACCESSED OR ATTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

13.2 NEITHER SMART SERVE NOR ITS PARENT, SUBSIDIARIES, AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS OR SUCCESSORS MAKE ANY WARRANTY, REPRESENTATION OR ENDORSEMENT WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, SUITABILITY, ACCURACY, CURRENCY OR AVAILABILITY OF THE WEBSITE OR ITS CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER SMART SERVE NOR ITS PARENT, SUBSIDIARIES, AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS OR SUCCESSORS REPRESENT OR WARRANT THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES ACCESSED OR ATTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

13.3 WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES OR DATA AVAILABLE FROM THE INTERNET OR THE WEBSITE WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR YOUR USE OF THE WEBSITE AND YOUR COMPUTER, INTERNET AND DATA SECURITY. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, MAILBOMBING OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR CONTENT ACCESSED OR ATTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

14. Liability Limitations

14.1 EXCEPT WHERE SUCH EXCLUSIONS ARE PROHIBITED BY LAW, IN NO EVENT WILL SMART SERVE, NOR ITS PARENT, SUBSIDIARIES, AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, OR SUCCESSORS BE LIABLE FOR NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION, FUNDAMENTAL BREACH, DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, BREACH OF PRIVACY OR OTHERWISE, EVEN IF THE PARTY WAS ALLEGEDLY ADVISED OR HAD REASON TO KNOW, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, OR RELIANCE ON, THE WEBSITE, ANY LINKED WEBSITES OR SUCH OTHER THIRD-PARTY WEBSITES, NOR THE WEBSITE’S CONTENT, MATERIALS, POSTING OR INFORMATION THEREON EVEN IF THE PARTY WAS ALLEGEDLY ADVISED OR HAD REASON TO KNOW. SMART SERVE IS NOT RESPONSIBLE FOR ANY CONTENT THAT YOU MAY FIND UNDESIRABLE OR OBJECTIONABLE.

14.2 NOTWITHSTANDING THE FOREGOING, IF SMART SERVE SHOULD BE FOUND LIABLE FOR ANY LOSS OR DAMAGE WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH ANY OF THE FUNCTIONS OR USES OF THE WEBSITE OR ITS CONTENT, OR ANY OF THE PRODUCTS OR SERVICES OFFERED THROUGH THE WEBSITE, THE ABSOLUTE MAXIMUM LIABILITY OF SMART SERVE TO YOU WILL IN NO EVENT EXCEED $100 CAD IN THE AGGREGATE.

15. Indemnity

15.1 To the maximum extent permitted by applicable law, you agree to defend, indemnify, and hold harmless Smart Serve, its parent, subsidiaries, affiliates, and their respective directors, officers, employees, agents, service providers, contractors, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to: (a) your breach of this Agreement; (b) your use of the Website other than as expressly authorized in this Agreement, including, but not limited to, use of third-party sites, use of Smart Serve Content, use of Smart Serve services and products; (c) your violation of any applicable laws; and (d) your User Content. You will assist and co-operate as fully as reasonably required by Smart Serve in the defence of any indemnified claim or demand.

16. Linking and Framing

16.1 You may link to a Website homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. The Website must not be framed on any other site, nor may you create a link to any part of a Website other than the homepage. We reserve the right to withdraw linking permission without notice. You agree to cooperate with us in causing any unauthorized framing or linking to immediately stop. To request specific permission to link to the Website, please contact Smart Serve’s webmaster at socialmedia@smartserve.ca.

17. Comments and Unsolicited Ideas

17.1 Smart Serve welcomes your comments and feedback regarding the Website (“Comments”). Any Comments you submit to Smart Serve are subject to the terms referenced in this Section.

17.2 By submitting any Comments to Smart Serve you hereby grant (or warrant that the owner of the Comments grants) to Smart Serve a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display the Comments or any ideas, concepts, know-how or techniques associated with the Comments for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or anyone else, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of Smart Serve, and you warrant and represent that all moral rights in the Comments are waived.

18. Jurisdictional Issues

18.1 The Website is controlled by Smart Serve from its offices in Toronto, Ontario, Canada. The Website is provided for use only by persons located in Canada. Access to the Website from locations where the Content is illegal is prohibited. If you are accessing the Website from locations outside of Canada, you do so at your own risk and you must comply with all laws applicable in your jurisdiction.

19. Termination of this Agreement

19.1 If you breach any provision of this Agreement or your Facilitator Agreement, Smart Serve may prohibit you from using the Website or your Smart Serve Account. Smart Serve may, at any time without notice or liability, and for any reason whatsoever, terminate, change, suspend or discontinue any aspect of the Website, or any part thereof, including (a) changing the availability of, restricting access to, or imposing limits on any or all features or services on, or links to, the Website including Smart Serve accounts; (b) removing, adding, modifying or otherwise changing any Content on the Website. Smart Serve reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Website at any time without notice, but confirms that it has no obligation to do so. Smart Serve may terminate this Agreement with you at any time in its sole discretion without notice.

19.2 If this Agreement or your permission to use the Website is terminated for any reason, then (a) all licenses granted to you by Smart Serve hereunder shall immediately terminate; (b) you must cease your use of the Website and destroy all materials and Content obtained from the Website and all related documentation and all copies and installations thereof, whether made under this Agreement or otherwise; (c) this Agreement will nevertheless continue to apply and be binding upon you in respect of your prior use of the Website and anything connected with, relating to or arising from that use; (d) we will terminate your access to your Smart Serve Account; (e) any perpetual licenses granted by you to Smart Serve hereunder shall continue in force notwithstanding such termination; and (f) we may continue to use and disclose your personal information in accordance with our Privacy Policy, as amended from time to time, which may be found at https://smartserve.ca/privacy-policy/.

19.3 Sections 4 (Ownership), 6 (Prohibited Activities), 7 (User Content), 9 (Analytical Data), 11 (Privacy Policy), 12 (Other Sites), 13 (Disclaimers), 14 (Liability Limitations), 15 (Indemnity), 16 (Linking and Framing), 17 (Comments and Unsolicited Ideas), 19 (Termination), 20 (Governing Law and Jurisdiction) and 20 (General) will survive any termination of this Agreement.

20. Governing Law and Jurisdiction

20.1 This Agreement, your use of the Website and its Content, and all matters relating thereto are governed by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws and notwithstanding your domicile, residence or physical location.

20.2 Any action or proceeding arising from or relating to Website, the Content or this Agreement shall be resolved before the Courts of the Province of Ontario, Canada, sitting in the City of Toronto, and each party irrevocably submits to the original and exclusive jurisdiction of those Courts in respect of any such action or proceeding. You waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.

21. General

21.1 If any provision of this Agreement is found to be unlawful, void, illegal or for any reason unenforceable, then that provision shall be deemed to be severable from the rest of the Agreement and shall not affect the validity and enforceability of any remaining provisions.

21.2 No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

21.3 This Agreement, including any changes made to this Agreement from time to time, our Privacy Policy, any additional terms and conditions posted on the website from time to time as referred to in Section 3.1, and your Facilitator Agreement (if applicable) constitute the entire agreement between you and Smart Serve with respect to the matters contained herein and supersedes all previous agreements, written, oral or otherwise, between the you and Smart Serve regarding such subject matter. This Agreement does not vary, alter, modify or otherwise affect any other more specific agreements between you and Smart Serve regarding other matters.

21.4 Smart Serve may, without prior notice and without your consent, assign any or all of our rights and obligations under this Agreement to another party at any time and upon such assignment the assignee shall assume all of our rights and obligations under this Agreement and Smart Serve shall be released.

21.5 The application the United Nations Convention of Contracts for the International Sale of Goods does not apply to the purchase of goods and services from Smart Serve and is expressly excluded.

21.6 Any rights not expressly granted by this Agreement are reserved to Smart Serve.

22. Contact Us

22.1 The Website is operated by Smart Serve Ontario, 5407 Eglinton Ave. W, Unit 105, Toronto, Ontario, M9C 5K6.

22.2 If you have any comments or questions about this Agreement or your use of the Website please contact Smart Serve at info@smartserve.ca.

Last Updated: August 20, 2019.