Kostuch Media Ltd. Website and Database (February 2011)
Thank you for visiting the Kostuch Media Ltd. website located at www.kostuchmedia.com (the “Site“). Please read these Terms and Conditions of Use (the “Agreement“) carefully before using the Site. By using the Site, you agree to comply with the Agreement. If you do not agree to comply with the Agreement, you may not use the Site. Kostuch Media Ltd. (“Kostuch”) and its affiliates (collectively, “we”, “us”) reserve the right, at our sole discretion, to modify the Agreement at any time, and such modifications shall be effective immediately upon posting of the modified version on the Site. You agree to review the Agreement periodically to be aware of such modifications, and your continued use of the Site shall be deemed your conclusive acceptance of the modified Agreement.
1. Database Licence
Subject to your compliance with this Agreement, Kostuch grants to you a personal, non-transferable and non-exclusive license to access Kostuch’ proprietary database accessible through the Site (the “Database”) and all associated documentation published by Kostuch on the Site or otherwise provided to you in connection with the Database (the “Documentation”), solely for your own internal business or personal purposes and solely through the Site. Your license to access the Database and use the Documentation continues until terminated by you or Kostuch.
2. Site Membership
You have the option to register as a “member” of the Site (a “Member”). Membership is not required to access the Database. Each Member will be issued a unique user name and password to access the Member’s Section of the Site. You are solely responsible for protecting your user name and password. We are not liable for any claims, losses, actions, damages, suits or proceedings relating to the sharing or disclosure of your user name and password with others. You agree to notify Kostuch immediately after you become aware of any unauthorized use of your user name and password, and to take such reasonable steps as are necessary to prevent any reoccurrence of such event.
4. Proprietary Nature of Site, Database and Content
The Site; all articles, text, information, reports, images, audio, video and other elements or material posted on the Site (“Content”); the Database; all data contained in the Database (the “Data”); all Documentation; and all downloadable Database search results (all of the foregoing are collectively referred to herein as the “Proprietary Materials”), are protected by copyright, trade-mark, database rights, and other intellectual property and proprietary rights laws, and are owned and/or controlled by Kostuch and/or its affiliates, licensors and related companies. All Proprietary Materials remain the valuable intellectual property of their owner(s), and are made available by to you solely for the purposes expressly authorized hereunder, and subject to the terms hereof. You agree to abide by all copyright and other intellectual property notices, information and restrictions contained in or displayed with any Proprietary Materials.
5. Prohibited Use of the Database, the Site and Other Proprietary Materials
Your use of the Site, Database and other Proprietary Material must comply with this Agreement, all applicable laws and all applicable Kostuch policies. You agree that you will not, directly or indirectly:
- copy the Database, Documentation or any other Proprietary Materials for any purpose;
- access or use the Database through any means other than the Site, or permit any unauthorized person to access or use the Database by any means or for any purpose;
- use any data from the Database (“Data”) to create a similar or competitive database or service;
- transfer, lease, export or grant a sub license of the Database or any rights granted to you herein to any other person unless authorized by Kostuch in writing;
- use the Database, the Documentation or any other Proprietary Materials for any purpose not expressly authorized herein;
- re-publish or otherwise use the Database or any Data, in whole or in part, for any commercial purpose, except as expressly permitted herein; or
- sell any Data to a third party.
You agree further that you will not use the Site to, directly or indirectly:
- invade another person’s privacy or collect, disclose or store personal information about other persons (including telephone numbers, street addresses, email addresses, last names, etc.);
- “stalk” or otherwise harass another person;
- harm minors
- unlawfully promote or incite hatred;
- impersonate any person or entity, including, but not limited to a Kostuch official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity; or
- transmit any information, software, email or attachment which contains any virus, worm, Trojan Horse or other harmful code or component.
6. Damages for Wrongful Access or Disclosure
If you copy, or permit the copying of the Database, in whole or in part, by any third party, you will pay to Kostuch twice the market value of the copied information, as determined by Kostuch, at the time that the copy was made. If you permit the use of the Database by an unauthorized individual, you will pay Kostuch twice the market value of a personal license to use the Database at the time that the breach of this Agreement occurred. The foregoing is without prejudice to any other remedies that may be available to Kostuch at law or in equity.
7. No Rights Granted in Trade-Marks or Proprietary Material
Nothing contained in this Agreement or on the Site should be considered as granting you, expressly, by implication, estoppel, or otherwise, any license or right to use any trade-marks, logos, or other names, including, but not limited to, those identifying Kostuch and/or its affiliates, licensors and related companies, or their respective products and services displayed on the Site, without the expressed written consent of the applicable rights holder. You do not acquire any ownership rights in any Proprietary Materials, nor are you granted any commercial, sale, resale, reproduction, licensing or sub-licensing, distribution, publishing, broadcast, transmission, performance or promotional use rights with respect to any Proprietary Materials.
8. Your Limited Rights with Respect to Content
You may only copy and store Content and the Documentation on your own computer solely for the purposes authorized herein, and you may not copy, forward, modify, translate, license or sublicense, distribute, publish, broadcast, transmit, perform, display, sell or disseminate any Proprietary Material to another recipient. You are hereby advised that Kostuch, its affiliates and licensors will aggressively enforce their intellectual property rights to the fullest extent permitted by law.
9. Changes & Upgrades
We reserve the right to alter, modify, or change the Site, the Database, the Documentation, and any other Proprietary Materials at any time in our sole discretion. Such changes may result in you being unable to access the Site or the Database. We may have to suspend access to the Site or Database from time to time to carry out maintenance and to make upgrades.
10. Uploaded Content
10.1 Grant of Rights. With respect to Content that you upload, post, transmit, distribute or otherwise disseminate or make available on or through the Site (your “Contributions”), you irrevocably grant us the world-wide, perpetual, royalty-free, non-exclusive, sub-licensable and transferable right and license (without obligation) to use, distribute, reproduce, encode, modify, adapt, edit, display, exhibit, publish, translate, publicly perform, communicate, publicly display your Contributions, and to incorporate them into other works, in any format and through any media channel, whether now known or hereafter invented, including, without limitation, by way of the Site. Subject to the rights expressly granted to us, you retain ownership of the copyright in your Contributions.
10.2 Moral Rights Waiver. You irrevocably waive your so-called moral rights with respect to your Contributions, in connection with our exploitation of the rights granted to us in this Agreement.
10.3 Prohibited Content. You will not upload, post, transmit, distribute, or otherwise disseminate or make available on or through the Site any Content that:
- is copyrighted, protected by trade secret or otherwise subject to third party proprietary or contractual rights, including privacy and personality/publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to post the Content and to grant us all of the rights granted herein;
- is obscene, profane, defamatory, libelous, slanderous, fraudulent, deceptive, threatening, intimidating, pornographic, harassing, abusive, hateful, racially or ethnically offensive, encourages or assists conduct that would constitute a criminal offence, could result in civil liability, or is otherwise objectionable, offensive, inappropriate or unlawful;
- implies or suggests an endorsement by us;
- otherwise violates this Agreement or any applicable municipal, provincial, federal or international law, order or regulation.
10.4 Third Party Clearances. You represent and warrant that you own or have secured all necessary licenses, rights, consents and permissions to use, and to authorize us to use, any trade-marks, copyrighted material or other intellectual property and/or proprietary material contained in your Contributions, and that you have the written consent, release and/or permission of every identifiable individual person appearing or referenced in your Contributions to use his/her name and/or likeness.
10.5 Removal of Content. Kostuch has no obligation to, and does not and cannot, monitor or review every item of Content that you and other users make available through the Site, and Kostuch is not responsible for any of this Content. However, Kostuch reserves the right to investigate, monitor, delete and/or refuse to transmit, move, remove, edit or refuse to post any material or information, in whole or in part, without notice to you, that it deems in its absolute discretion, unacceptable, undesirable or in violation of any law or this Agreement.
10.6 Responsibility for Uploaded Content. You will be solely responsible for any Content that you make available through the Site, and any liability resulting from its use as contemplated in this Agreement. You will also be liable for any costs, losses or damage resulting, directly or indirectly, from your making any Content available on or through the Site.
10.7 Postings Non-Confidential. Any communications, comments, ideas or concepts that you post to the Site will be treated as non-confidential and non-proprietary. You agree that Kostuch and its affiliates are free to use any ideas, concepts, know-how or techniques that you send us for any purpose and without paying you compensation of any kind.
11. Third Party Content
11.1 Third Party Content. You acknowledge that, despite the prohibitions above, Content posted on the Site by other end users, may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services and links to other web sites. We do not have control over Content provided by third parties, and assume no responsibility or liability for it. Content you access or transmit using the Site is accessed and transmitted at your own risk.
11.2 Third Party Web Sites. Web sites accessed via links or other means from the Site have, unless otherwise indicated, been independently developed by third parties. The inclusion of any Content or links on the Site should not be construed as an express nor an implied endorsement of any third party products or services by us. We are not responsible for the Content or opinions expressed on any linked web sites, and such web sites are in no way investigated, monitored or checked by us.
12. Linking and Framing
Unless otherwise agreed in writing by us, you may only provide a hypertext link to the Site on another web site, provided that (a) the link must be a text-only link clearly marked “Kostuch Media Ltd.”; (b) the link must point the user directly to the URL http://www.kostuchmedia.com and not to other pages within the Site; (c) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with our names and trade-marks; (d) the appearance, position and other aspects of the link may not create the false appearance that an entity is associated with or sponsored by us; (e) the link, when activated by a user, must display the Site full-screen and not within a “frame” on the linked web site; (f) we reserve the right to inspect the link from time to time in our discretion to verify compliance with this paragraph; and (g) we reserve the right to revoke our consent to the link at any time in our sole discretion.
We may discontinue, or terminate your access to, the Site and/or the Database, at any time in the event that you fail to comply with the terms set forth herein. Our discontinuance of the Site or any portion of the Site may result in the removal or deletion of Content made available by you. You are responsible for maintaining any required back up copies of such Content. Kostuch will not be liable to you with respect to its deletion of any Content. Upon receipt by you of written notice of termination form the Licensor or termination by you, you shall immediately cease using the Database and return any Documentation in your possession to Kostuch. The provisions of clauses 4 through 7 and 10 through 20 shall survive termination of this Agreement.
14. Disclaimer of Warranties & Limitation of Liability
THE SITE, THE DATABASE AND ALL OTHER PROPRIETARY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. KOSTUCH, ITS AFFILIATES, LICENSORS AND RELATED COMPANIES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS AND AGENTS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL REPRESENTATIONS AND WARRANTIES OF TITLE AND NON-INFRINGEMENT, AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE, SUITABILITY FOR ANY PARTICULAR PURPOSE, AND ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE PROPRIETARY MATERIAL. NEITHER KOSTUCH NOR ITS AFFILIATES, LICENSORS AND RELATED COMPANIES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS AND AGENTS MAKES ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, TIMELINESS, RELIABILITY, TRUTHFULNESS OR COMPLETENESS OF THE PROPRIETARY MATERIALS, INCLUDING, BUT NOT LIMITED TO, THE SITE, THE DATABASE, ANY SERVICES PROVIDED THROUGH THE SITE, OR ANY LINKS TO OTHER SITES MADE AVAILABLE ON THE SITE OR THE CONTENT CONTAINED ON SUCH SITE(S), OR AS TO THE CONTINUOUS OR ERROR FREE USE AND OPERATION OF THE SITE OR THE DATABASE. NEITHER KOSTUCH NOR ITS AFFILIATES, LICENSORS AND RELATED COMPANIES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS OR AGENTS MAKES ANY REPRESENTATIONS OR WARRANTIES THAT THE SITE OR THE DATABASE, OR ACCESS TO AND USE OF THE SITE OR THE DATABASE, WILL BE UNINTERRUPTED, ERROR FREE, OR FREE FROM DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS. YOU EXPRESSLY AGREE THAT USE OF THE SITE AND THE DATABASE IS AT YOUR SOLE RISK.
15. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION AND FUNDAMENTAL BREACH SHALL KOSTUCH OR ITS AFFILIATES, LICENSORS AND RELATED COMPANIES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS AND AGENTS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS THAT RESULT FROM YOUR USE OF, OR YOUR INABILITY TO USE, ANY CONTENT, INFORMATION, MATERIAL, OR POSTINGS ON THE SITE, DIRECTLY OR INDIRECTLY. THESE LIMITATIONS APPLY REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER KOSTUCH NOR ITS AFFILIATES, LICENSORS AND RELATED COMPANIES, NOR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS AND AGENTS SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER, INCLUDING YOU.
To the maximum extent permitted by applicable law, you will defend, indemnify and hold harmless Kostuch, its affiliates, licensors and related companies, and each of their respective directors, officers, employees, consultants and agents from and against all claims, liability, and expenses, including all legal fees and costs, arising out of: (a) your breach of any provision of this Agreement; or (b) use of any Proprietary Materials by you or others using your user name and password. Kostuch reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You will co-operate as fully as reasonably required in the defense of any claim.
18. Remedies & Recourse
18.1 If you are dissatisfied with the Site, the Database or with this Agreement, your sole and exclusive remedy is to discontinue using the Site and the Database.
18.2 Kostuch reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including the right to injunctive relief and to block access from a particular IP address to the Site or the Database or any part thereof.
To contact Kostuch in connection with this Agreement, you may either call (416) 447-0888, send an e-mail to firstname.lastname@example.org or write to KOSTUCH MEDIA LTD. 23 Lesmill Rd., Suite 101, Toronto, Ontario, Canada, M3B 3P6, Attention: Publisher
20. Other Important Terms
Any disputes arising hereunder shall be governed exclusively by the laws of the province of Ontario and the laws of Canada applicable therein, without giving effect to their conflict of laws principles. You expressly consent to the exclusive forum, jurisdiction, and venue of the courts of Ontario and/or the Federal Court of Canada in Ontario, or any other judicial district or jurisdiction as Kostuch may determine in any and all actions, disputes, or controversies relating hereto. This Agreement and any rules, policies, guidelines or other agreements posted on the Site by Kostuch constitute the entire agreement between Kostuch and you with respect to your use of the Proprietary Materials. No waiver by either Kostuch or you of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provisions contained herein shall be determined to be void, invalid, or otherwise enforceable by a court of competent jurisdiction, such termination shall not affect the remaining provisions contained herein.