3. MEMBER CONDUCT
3.1 Member Conduct. By accessing or using the Services, you agree to act responsibly, exercise good judgment and comply with the Community Guidelines. In addition, you agree not to:
(a) use the Services in violation of any applicable law or regulation, including promoting or encouraging any illegal activity;
(b) infringe the rights of any third party, including without limitation, intellectual property, privacy, publicity or contractual rights;
(c) use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other members from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of the Services in any manner;
(d) use our Services in connection with the distribution of spam (which we define as unsolicited bulk e-mail or any other unsolicited messages of a commercial, religious, romantic, political or other nature not within the intended purposes of the Services);
(e) stalk, intimidate, threaten or otherwise harass or cause discomfort to any other member of our Services;
(f) collect or store any information about any other member other than as permitted on our Services;
(g) use our Services for any commercial purpose whatsoever, unless with prior written consent from Twtpoll;
(h) register for more than one member account;
(i) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity, whether by providing or omitting to provide information;
(j) circumvent or attempt to defeat any security or verification measure relating to use of the Services;
(k) hold yourself out as an agent, representative, employee or affiliate of Twtpoll, including but not limited to when you host an event for other Twtpoll members or sign up to be a Twtpoll Volunteer; or
(l) assist any third party in doing any of the foregoing.
4. COPYRIGHT AND LIMITED LICENSE
Unless otherwise indicated, the Services and all content and other materials on the Services, including, without limitation, the Twtpoll logo, and all designs, text, graphics, pictures, videos, information, data, software, sound files and other files, and the selection and arrangement thereof, (collectively, the “Twtpoll Materials”) are the proprietary property of Twtpoll or our licensors or members and are protected by Canadian and international copyright laws.
You are granted a limited, non-exclusive and non-sublicensable license to access and use the Services and Twtpoll Materials; however, such license is subject to these Terms and does not include: (a) any resale or commercial use of the Services or the Twtpoll Materials; (b) the distribution, public performance or public display of any Twtpoll Materials; (c) modifying or otherwise making any derivative uses of the Services and the Twtpoll Materials, or any portion thereof, unless modification or derivative use is specifically permitted under applicable law or provided for under separate terms; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Services, the Twtpoll Materials or any information contained therein, except as expressly permitted on the Services; or (f) any use of the Services or the Twtpoll Materials other than for their intended purposes. Any use of the Services or the Twtpoll Materials other than as specifically authorized herein, without the prior written permission of Twtpoll, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
If you are in breach of these Terms, or any other policies or community standards we have in place from time to time, we may, in our discretion at any time: (a) terminate your access to our Services, (b) deactivate or delete your account and all related information and files in such account and/or (c) bar your access to any of such files or Services. In any of these instances, you are not permitted to register for another Twtpoll account without our prior written permission.
In rare circumstances, when we feel it is necessary to protect the safety or the well being of the Twtpoll community, we will remove a member’s account from our Services. We don’t take this decision lightly, but it is sometimes required.
6. DISCONTINUANCE OF SERVICES
We may, in our discretion and without liability to you, with or without prior notice and at any time, modify or discontinue, temporarily or permanently, any portion of our Services.
7. MEMBER’S REPRESENTATIONS AND WARRANTIES
7.1. You hereby represent and warrant that you have the full power and authority to enter into and perform under these Terms. If you are using our Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf.
7.2. You hereby represent and warrant that you will use our Services in a manner consistent with any and all applicable local, state, national and international laws and regulations, including, but not limited to, Canadian export-control laws.
7.3. If you are (a) located in, under the control of, or a national or resident of any country to which Canada has embargoed goods or services, (b) identified as a “Specially Designated National”, or (c) placed on the Commerce Department’s Denied Persons List, you represent and warrant that you will not engage in financial transactions with, or commercial activities on, Twtpoll. Without limiting the foregoing, you are solely responsible for determining whether you have complied with travel restrictions to and from certain countries, including travel to and from countries other than Canada.
7.4. You hereby represent and warrant that you will not use the Services if the laws of your country prohibit you from doing so in accordance with these Terms (for example, if you are not allowed to provide the types of personal information that we require or if you are prohibited from participating in certain Internet activity). By using the Services, you represent and warrant that such use will not violate, or cause us to violate, the laws of your country.
8. DISCLAIMER OF WARRANTIES
8.1. IF YOU USE OUR SERVICES, YOU DO SO AT YOUR SOLE RISK. OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM, AND YOU WAIVE, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN.
8.2. WE DO NOT REPRESENT OR WARRANT THAT (A) OUR SERVICES WILL MEET YOUR REQUIREMENTS; (B) OUR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) ANY INFORMATION THAT YOU MAY OBTAIN THROUGH OUR SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICES WILL MEET YOUR EXPECTATIONS; (E) ANY INFORMATION YOU PROVIDE OR WE COLLECT WILL NOT BE DISCLOSED TO THIRD PARTIES; OR (F) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED.
8.3. IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF OUR SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE ARISING OUT OF SUCH ACCESS OR TRANSMISSION; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
8.4. NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM US OR THROUGH OR FROM OUR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
9. LIMITS ON LIABILITY
9.1. SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL Twtpoll, OR OUR DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATING TO: (A) THE USE OR INABILITY TO USE OUR SERVICES; (B) THE COST OF REPLACEMENT OF ANY GOODS, SERVICES OR INFORMATION PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICES; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT; (D) DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS OR PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF WE KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (E) STATEMENTS, CONDUCT OR OMISSIONS OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON OUR SERVICES; (F) YOUR OR ANYONE ELSE’S CONDUCT OR ACTS IN CONNECTION WITH THE USE OF THE SERVICES; OR (G) ANY OTHER MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICES OR THESE TERMS.
9.2. WE SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS, WHETHER OR NOT SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL.
9.3. IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM OR RELATING TO OUR SERVICES OR THESE TERMS EXCEED THE SUM OF ONE HUNDRED US DOLLARS ($100).
9.4. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF SECTIONS 9 AND 10 MAY NOT APPLY TO YOU.
9.5 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS EXCLUDES OR LIMITS OUR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR FOR FRAUD.
You shall defend, indemnify and hold harmless Twtpoll (and each of our officers, directors, members, employees, agents and affiliates) from any claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out of or relating to (a) your use of our Services; (b) any Member Content or Submissions you provide; (c) your violation of these Terms; (d) your violation of any rights of another; or (e) your conduct in connection with the Services. Further, if you are using the Services on behalf of any entity, you represent and warrant that such entity agrees to indemnify you and Twtpoll for violations of these Terms in accordance with this Section. If you are obligated to indemnify us, we will have the right, in our sole and unfettered discretion, to control any action or proceeding and determine whether we wish to settle it, and if so, on what terms.
11. REPORTING MISCONDUCT
If you interact with anyone through our Services who you feel is acting or has acted inappropriately, including but not limited to offensive, violent or sexually inappropriate behavior, who steals from you or engages in any other disturbing conduct, we strongly encourage you to immediately report such person to the appropriate authorities and to us by contacting us. Please note that although we encourage you to report misconduct, we are not responsible or liable for our members’ actions, and we are not obligated to take any action.
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH Twtpoll AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. You and Twtpoll agree to arbitrate any dispute arising from these Terms or relating to the Services, except that you and Twtpoll are not required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. SUBJECT TO ANY RIGHTS YOU MAY HAVE UNDER APPLICABLE LAW, ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Twtpoll agree that you will notify each other of any dispute within thirty (30) days of when it arises, that you will attempt informal resolution prior to any demand for arbitration, that any arbitration will occur in Montreal, Quebec and that arbitration will be conducted confidentially by a single arbitrator. You and Twtpoll also agree that the provincial or federal courts in Montreal, Quebec have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND Twtpoll WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
13.1 Assignment. You may not assign any of your rights or obligations under these Terms without prior written consent from Twtpoll. Twtpoll may assign any or all of its rights under these Terms, in whole or in part, without obtaining your consent or approval.
13.2 Entire Agreement. These Terms contain the entire agreement, and supersede all prior and contemporaneous understandings, between the parties regarding their subject matter.
13.3 Waiver. Our failure or delay in exercising any right, power or privilege under these Terms shall not operate as a waiver thereof.
13.4 Severability. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.
13.5 Headings. Headings of sections are for convenience only and shall not be used to limit or construe such sections.