IMPORTANT – YOU MUST BE AT LEAST 18 YEARS OLD TO USE ANY OF THE SERVICES. IF YOU ARE UNDER THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE, YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN READ THE AGREEMENT BELOW AND AGREE TO IT FOR YOU. IF YOU DO NOT GET YOUR PARENT OR GUARDIAN TO READ AND AGREE TO THIS AGREEMENT, THEN YOU DO NOT HAVE PERMISSION TO USE ANY OF THE SERVICES.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICES. BY ACCESSING AND/OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT, AND YOU MUST NOT, ACCESS OR USE ANY OF THE SERVICES.
- Modification of this Agreement. Company, in its sole and absolute discretion, may change this Agreement and any of the Other Terms or Additional Terms, at any time, and such changes shall be effective immediately upon posting to the Website. You acknowledge and agree that: (i) Company may notify You of such changes by posting them to the Website and/or the Services; and (ii) Your use of any of the Services after such changes or modifications have been made (as indicated by the effective date noted at the top of this page) shall constitute Your acceptance of this Agreement as last revised. If You do not agree to such amended Agreement, then You must immediately stop using all of the Services.
- Eligibility. Company makes no representation that the Services are appropriate for use in locations other than Canada. You are solely responsible for compliance with all Applicable Laws. Any diversion of the Services contrary to any Applicable Law is prohibited.
- Rights to Use the Services.
- Access to the Services. Subject to the terms set forth in this Agreement, We grant You a non-transferable, non-exclusive, revocable license to use the Services for Your personal non-commercial use.
- Restrictions on Use. We hope you enjoy the information and materials on our Site. We’re glad when you link to them or post them on your social media accounts, but only for your personal use. You’re not permitted to post or upload any of our Site content for your commercial, business, or non-personal use. If you use or post our Site information and materials for any non-personal purposes, you’ll be violating our intellectual property rights. You shall not use the Services (whether in whole or in part) in any fashion except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, You shall not and shall not encourage or assist any third party to, directly or indirectly, do any of the following acts: (i) sell, reproduce, modify or attempt to modify the Services in any way; (ii) reverse engineer, disassemble or decompile the Website or any software or other products or processes accessible through the Services, or attempt to discover or recreate the source code used to provide or access the Services, including, but not limited to, the Website; (iii) use any of the Services in any manner or for any purpose other than as expressly permitted by this Agreement, Other Terms or Additional Terms; (iv) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to You with respect to the Services to any third party; (v) remove, obscure or alter any proprietary rights notice pertaining to any of the Services; (vi) use the Services to engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (vii) use any robot, spider, scraper or other automated means to access the Services; (viii) interfere with or disrupt servers or networks used by Company to provide the Services or used by other users’ to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of the Services; (ix) cause, in Company’s sole discretion, inordinate burden on the Services or Company’s system resources or capacity; (x) modify, translate, or create derivative works based on any portion of the Services; (xi) execute the Services on an emulator; (xii) access or use the Services in order to build a competitive product or service or copy any features or functions of any of the Services; (xiii) circumvent, remove, alter, deactivate, degrade or thwart any of any security technology or software that is part of the Services (or otherwise attempt to do so or encourage or assist any other party to do so); (xiv) impersonate or attempt to impersonate any member of the Company Group (as defined below); or (xv) violate any Applicable Law. You acknowledge and additionally agree that We reserve the right to stop any conduct that restricts or inhibits other users of the Services from fully utilizing and enjoying the Services.
- Intellectual Property Ownership and Reservation of Rights. Except for Content You post (as defined below) on, through or in connection with the Services, all trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights in or related to the Services are and will remain the exclusive property of Company or its licensors, whether or not specifically recognized or perfected under local law. You will not acquire any rights in the Services except the limited use right specified in this Agreement. The Services are proprietary to Company and/or its licensors. You agree to take adequate steps to protect the Services from unauthorized disclosure or use. All the content on the Site that was created, developed, designed or generated by Oombawka, including without limitation including patterns, posts, and images, as well as the selection, composition and arrangement of such content, are protected by worldwide copyright and either belong to or are licenced to Oombawka. You are strictly prohibited from sharing, modifying, transmitting, or using the components of the Site, in whole or in part, without Oombawka’s prior written authorization. If you would like to share content from the Website, please do so by sharing a link to the post or materials. If you are a blogger and would like to share content from our Services or the Website on your blog, you may share one image with a link back to the original post on the Website. No licence or right of use is granted to you or may be inferred from your use of this Site.
- Rights to Your Content.
- Company does not claim any ownership rights in the files, images, photos, works of authorship, applications, or any other materials (collectively, “Content”) that You upload, transmit, submit, display or publish (“post”) on, through or in connection with the Services. After posting Your Content on, through or in connection with the Services, You continue to retain any such rights that You may have in Your Content, subject to the limited license granted herein.
- By posting any Content on, through or in connection with the Services, You hereby grant to Company an irrevocable, non-exclusive, royalty-free, fee-free and fully paid, transferable, perpetual, worldwide right to grant sublicenses, to reproduce, distribute, publicly display, publicly perform, telecommunicate to the public, prepare adaptations and derivative works of, incorporate into other works, and otherwise use Your Content in connection with the Services by all means and manners now or later known, including, without limitation, on, through or in connection with the Services to third party email addresses, applications, widgets, websites, or mobile, desktop or other services which are linked by You at Your election (collectively, “Linked Services”), including, without limitation, distributing part or all of the Services and any Content included therein. Except as prohibited by law, You hereby waive, and You agree to waive, any moral rights (including attribution and integrity) that You may have in any Content. To the extent not waivable, You irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the rights granted hereunder. You understand that You will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 2.
- Each time You post any Content, You represent and warrant that You are at least the age of majority in the jurisdiction in which You reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor (including Yourself) who is depicted in or contributed to any Content You submit, and that, as to that Content: (i) You are the sole author and/or owner of the Content posted by You on, through or in connection with the Services, or otherwise have the lawful right to grant the license set forth in Section 2 or that is provided in any Additional Terms, all without any Company obligation to obtain consent of any third party and without creating any obligation or liability of Company, (ii) the Content is accurate (other than as authorized in Section 8 or any Additional Terms); (iii) the posting of Your Content on, through or in connection with the Services and/or Linked Services does not violate the privacy rights, publicity rights, intellectual property rights, contract rights or any other rights of any person or entity; and (iv) the Content will not violate this Agreement (including the prohibitions in Section 8 or any Additional Terms, or cause injury or harm to any person or entity. You agree to pay all royalties, fees, and any other monies owing any person or entity by reason of the use of any Content posted by You on or through the Services and/or Linked Services.
- Prohibited Content.
- Please choose carefully the Content that You post on, through or in connection with the Services. Your Content may not include any form of Prohibited Content, as outlined in Section 2 below. You are solely responsible for the Content that You post on, through or in connection with any of the Services and/or Linked Services, and any material or information that You transmit to, and Your interactions with, third parties. We reserve the right to request at any time proof of the permissions referred to above in a form acceptable to Us.
- We limit use of the Services to Content and activities that are appropriate, in Our discretion, to the Services. The following are examples, without limitation, of the kind of Content or activities that are illegal, or prohibited to post on, through or in connection with the Services (“Prohibited Content”). Prohibited Content includes, but is not limited to, Content that, in the sole discretion of Company:
- includes a photograph of a third party that You have posted without that third party’s consent;
- violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any third party;
- is bullying, harassing, abusive, threatening, harmful, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination,
- violates any law, regulation, or contractual obligations;
- is tortious, trade libelous, defamatory, false, intentionally misleading, or that impersonates any other person or entity, including any member of the Company Group;
- solicits or is designed to solicit personal information from anyone under age 18;
- solicits or is designed to solicit an inappropriate or unlawful relationship with a third party;
- publicly posts information that poses or creates a privacy or security risk to any person or entity;
- constitutes or promotes information that You know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or
- furthers, promotes or depicts any illegal or criminal activity or enterprise.
- Company reserves the right to investigate and take appropriate action (which may include taking legal action) in Our sole discretion, with or without notice, against anyone who, in Company’s sole discretion, violates Sections 5.2 or 8, including, without limitation, removing the offending Content from the Services, reporting such Content or activities to law enforcement authorities. Company may reject, refuse to post or delete any Content that, in the sole judgment of Company, violates this Agreement, is inappropriate for the Services or which may be offensive, illegal or violates the rights of any person or entity, or harms or threatens the safety of any person or entity. However, We are not obligated to take any action not required by law. Company, may, but assumes no responsibility or obligation for reviewing or monitoring the Services for inappropriate Content or conduct. If at any time Company chooses, in its sole discretion, to review or monitor the Services, Company nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
- Third Parties.
- Content of Other Users. The Services contain Content of Users (“User Content“). Except as otherwise provided within this Agreement, or in any Additional Terms, You may not copy, download, communicate, make available, modify, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any User Content appearing on or through the Services. We are not responsible for and do not control User Content. We have no obligation to review or monitor, and do not approve, endorse, or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at Your own risk.
- Modification and Availability of the Services. We reserve the right to do any of the following, at any time, at Our sole discretion, with or without notice: (1) modify, suspend, or terminate operation of or Your access to the Services, or any portion of the Services; or (2) interrupt the regular operation of the Services, or any portion of the Services, as necessary to perform routine or non-routine maintenance, to correct errors, or to make other changes to the Services. You agree that we will not be liable to You or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
- Wireless Access. The Services may offer certain features and services that are available to You via Your wireless Device used to access the Services. These features and services may include the ability to access the Services’ features and upload Content to the Services and download applications to Your wireless Device (collectively, “Wireless Features”). Standard data and other fees may be charged by Your carrier to participate in Wireless Features. Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or Device. You should check with Your carrier to find out what plans are available and how much they cost or any other questions regarding these carrier-related issues.
- We welcome Your feedback and comments regarding the Services. By submitting or providing Us with comments, messages, suggestions, ideas, concepts, feedback or other information about the Services, Company and/or its operations (collectively, “Submissions”) You thereby and hereby: (a) represent and warrant that none of the Submissions are confidential or proprietary to You or to any other party; (b) represent and warrant that none of the Submissions breach any agreement to which You are a party; and (c) grant Company an exclusive fully paid-up, royalty-free, perpetual, irrevocable, unrestricted, transferable, sub-licensable, worldwide right and license to the right to use, share and commercialize Your Submissions in any way and for any purpose. You also waive in favour of Company and its successors and assigns any and all of Your moral rights in and to all Submissions. These rights survive this Agreement.
- Disclaimer. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. COMPANY, COMPANY LICENSORS, COMPANY’S SUPPLIERS AND SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, “COMPANY GROUP”) MAKE NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; OR (II) THE SERVICES. YOU AGREE THAT WE MAY ENFORCE THIS SECTION 14 ON BEHALF AND IN FAVOUR OF COMPANY GROUP AS THEIR AGENT AND TRUSTEE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
- Limitation of Liability. UNDER NO CIRCUMSTANCES WILL COMPANY GROUP, INCLUDING ITS RESPECTIVE SUCCESSORS AND ASSIGNS, BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OR IMPAIRMENT OF OTHER ASSETS) ARISING FROM THIS AGREEMENT, THE SERVICES, LINKED SERVICES OR THIRD PARTY SITES AND PRODUCTS OR OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL COMPANY GROUP’S CUMULATIVE OR AGGREGATE LIABILITY TO YOU FOR DIRECT OR ANY OTHER DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH THE SERVICES, LINKED SERVICES, THIRD PARTY PRODUCTS OR SERVICES (INCLUDING BUT NOT LIMITED TO, THIRD PARTY SITES AND PRODUCTS), OR OTHERWISE UNDER THIS AGREEMENT EXCEED FIFTY CANADIAN DOLLARS (CDN $50.00). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. YOU AGREE THAT WE MAY ENFORCE THIS SECTION 15 ON BEHALF AND IN FAVOUR OF THE COMPANY GROUP AS THEIR AGENT AND TRUSTEE.
- To the maximum extent permitted by Applicable Law, You agree to indemnify, defend (at Company’s election) and hold the Company Group harmless from any loss, expense, liability, claim, damage or demand alleged by any third party, including, but not limited to, reasonable legal fees and costs, due to or arising out of or in connection with: (a) Your use of the Services or Linked Services, and Your activities in connection with the Services or Linked Services; (b) Your violation of any Applicable Law in connection with Your use of the Services or Linked Services, or Your activities in connection with the Services or Linked Services; (c) a breach of this Agreement or any Additional Terms; or (d) any Content that You post on, through or in connection with the Services or Linked Services (all of the foregoing, “Claims and Losses”). You will cooperate fully as required by Company in the defense of any Claim and Losses. Notwithstanding the foregoing, Company retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company reserves the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of Company. You agree that We may enforce this Section 16 on behalf and in favour of the Company Group as their agent and trustee.
- Termination. You or Company may terminate this Agreement for any reason by giving notice to the other party. We may suspend the Services at any time, with or without cause. All provisions of this Agreement, which by their nature should survive, shall survive termination of Services, including, without limitation, ownership provisions, Your payment obligations, warranty disclaimers, limitations of liability, indemnifications and Sections 1, 2, 3, 6 – 10,13 – 16 and 18 – 21.
- Compliance With Laws. Company reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Company to disclose the identity of anyone posting any Content, email or other messages that is believed or alleged (reasonably or not) to violate this Agreement or any Applicable Law. You acknowledge and agree that Company may investigate any violations of law and may cooperate with law enforcement authorities in this regard.
- Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province without regards to conflict of laws principles. The parties hereby expressly and irrevocably attorn to the exclusive jurisdiction of the courts in the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement.
- Miscellaneous. This Agreement (and the documents referred to herein, including, without limitation, Other Terms and Additional Terms) constitutes the entire agreement between You and Us in relation to the use of the Services, and replace and extinguish all prior agreements, arrangements or undertakings of any nature made by the parties, whether oral or written, in relation to such subject matter. The division of this Agreement into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. You may not transfer or assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Company and any such assignment shall be null and void from the beginning. We may assign this Agreement and all rights and/or obligations hereunder to any third party without notice for any purpose, including without limitation, collection of unpaid amounts, or in the event of an acquisition, corporate reorganization, merger or sale of substantially all of the party’s assets to another entity. You hereby consent to such assignment. You must continue making all required payments to Us in accordance with Your billing statement, unless notified otherwise. This Agreement shall enure to the benefit of and be binding upon Company’s or Your respective heirs, executors, administrators, successors and permitted assigns.
- Contacting Company.
If You have questions about this Agreement, feel free to contact Us.
Mail: Oombawka Design
PO Box 23
Wellesley ON N0B 2T0
Thanks for reading!
GOWLING WLG (CANADA) LLP,
50 Queen St N, Suite 1020,
PO Box 2248,
Kitchener, Ontario, NSH 6M2,