Membership Terms and Conditions
PART I - DEFINITIONS
1.01 In these conditions the following words have the following meanings unless the context requires otherwise:
(1) "Agreement" means the agreement between the Member and the Provider incorporating these conditions for the provision of the Service, along with the Provider’s Privacy Policy and Website Conditions and Terms of Use;
(2) "Intellectual Property Rights" means all patents, database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same;
(3) "Liability" means the Liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities;
(4) "Member" means any person over the age of 18 years whose membership has been accepted by the Provider and whose membership is current;
(5) "Post" means display, exhibit, publish, distribute, transmit and/or disclose information, details and/or other material on the Service, and the phrases
“Posts”, "Posted" and "Posting" shall be constructed accordingly;
(6) "Profile" means the section containing background details, and/or information about the Member;
(7) “Provider” means Listening with Heart;
(8) "Service" means the service provided by the Provider including, but not limited to, the Member to browse and access the Website, contact and/or be contacted by other Members through the Website and/or Post information on the Website;
(9) "User" means any non member who browses the Web Site;
(10) “Visitor” means User;
(11) "Website" means www.listeningwithheart.com (or such other URL that the Provider may use to provide the Service from time to time).
PART II - BASIS OF AGREEMENT
2.01 This is a legally binding Agreement between the Member and the Provider for the provision of the Service.
2.02 These conditions (as amended by the Provider from time to time) shall govern the Agreement between the Member and the Provider to the exclusion of any other terms or conditions and the Member agrees to abide by these terms and conditions (as amended by the Provider from time to time).
2.03 These conditions (as amended by the Provider from time to time) supersede all terms and conditions and shall replace any terms and conditions previously notified to the Member.
2.04 We reserve the right to vary these conditions at any time. If the Provider varies these Conditions, the updated conditions will be posted on the Website from time to time.
2.05 The Provider’s employees, sub-contractors and/or agents are not authorised to make any representations or warranties concerning the Service unless confirmed by the Provider in writing.
2.06 The Member acknowledges that he/she does not rely on any representation and/or warranty that have not been made in accordance with these conditions.
2.07 The Provider reserves the right to monitor and at its option to remove for any reason any information, photographs and/or other material Posted by the Member.
2.08 The Provider shall have the right to refuse to register applications for membership and to terminate memberships at any time for any reason whatsoever.
2.09 This Agreement between the Member and the Provider shall come into effect on the Provider’s acceptance of the Member’s application for membership. No application for membership shall be deemed to be accepted by the Provider until the potential member has received confirmation of approval of membership from the Provider via e-mail.
2.10 The Member will not be able to contact other Members or read and reply to other Members' messages or any other Member privilege until the Provider has received payment.
2.11 The Provider reserves the right to make changes to the Service as required from time to time by law or otherwise.
PART III - PRICE AND PAYMENT
3.01 The Website is free of charge to browse. If the User wishes to upgrade at a membership, then the User shall obtain all of the Provider’s services for an additional yearly charge. The User will see these prices posted on the Website. Any price changes will be posted on the Website.
3.02 If the User does upgrade, the User’s credit card (or other forms of payment) will be applied every year until the membership or is cancelled. If paying by cheque, the membership will only last one year until another cheque is cashed from the Member by the Provider.
3.03 The prices are exclusive of any applicable GST, PST, HST or other applicable tax and any details given in relation to exchange rates are approximate only and may vary from time to time.
3.04 The Member shall pay all sums due to the Provider under this Agreement by the means of the payment specified in the Provider’s Website and without any set-off, deduction, counterclaim and/or any other withholding of monies. Any applicable banking charges, save and except a Non Sufficient Fund (N.S.F.) charge, on such payments shall be borne by the Provider.
3.05 Payment shall not be deemed to be made until the Provider has received either cash or cleared funds in respect of the full amount outstanding.
3.06 Either party may terminate this Agreement at any time, for any reason. Termination of the agreement by either party will be effective upon that party sending an electronic mail (e-mail) notice to the other party of their intentions. To terminate the Agreement the Member must visit the Member’s “My Accounts” page and press the “Cancel Membership” button, and follow the onscreen instructions.
3.07 All monies paid by the Member to the Provider are non-refundable and cancellation and/or termination of this Agreement by either party at any time for any reason will not entitle the Member to a refund of any monies paid.
PART IV - MEMBER'S OBLIGATIONS
4.01 As a Member, he/she shall not:
(1) Post the Member’s or any third parties’ personal details such as telephone number, address and/or e-mail address or URL in the Member’s Profile or any other information which would allow other Members and/or Members to contact the Member directly;
(2) Transmit and/or Post information, pictures and/or any other material which breaches, infringes, violates and/or is contrary to any law, by-law, statute and/or regulation or any other parties' rights in (including but not limited to Intellectual Property Rights and/or privacy rights);
(3) Use the Service to promote another site, service and/or business in any way including but not limited to Posting any personal e-mail addresses URL's and/or other personal telephone numbers;
(4) Solicit other Members' business, buy or sell products and/or services through the Service;
(5) Misuse in any way the Service or any information Posted on the Service;
(6) Attempt to gain unauthorised access to any information available on the Service or to any of the networks used in providing the Service;
(7) Post and/or reproduce in any way any information and/or material in which the Intellectual Property Rights belong to another party without first obtaining the prior consent of the owner of such rights;
(8) Copy, in whole or in part any of the information on the Website (including, but not limited to any information contained in other Members' Profiles) other than for the purposes contemplated in this Agreement;
(9) Post any spam and/or junk e-mail to other Members;
(10) In any way assign, transfer, part with and/or authorise any other person to use the Member’s membership;
(11) Transmit and/or Post and/or email to another Member any information which in the opinion of the Website administrator is sexually explicit, racist, abusive, threatening, libellous, obscene, or is capable of offending other Members’/Users' political and/or religious beliefs.
PART V – MEMBER’S PROFILE
5.01 The Member acknowledges that other Members and Users will be able to view certain information of the Member.
5.02 The Provider may copy and/or reproduce any information Posted by the Member on the Website in any form and in any manner at the Provider’s sole discretion.
5.03 If the Member Posts and/or disclose to other Members or Users any confidential or sensitive information about the Member then the Member does so entirely at his/her own risk.
5.04 The Member will be able to view the details and profiles of other Members.
5.05 The Member warrants and represents to the Provider that all information Posted by the Member:
(1) Is accurate, true, complete and is not misleading; and
(2) Will be regularly updated by the Member so that it remains accurate, true, complete and not misleading.
5.06 The Provider reserves the right to review the Member’s Profile from time to time and to amend and/or delete it if the Provider, in its sole discretion, thinks that it should be amended and/or deleted.
PART VI – TERMINATION
6.01 A membership may be terminated if:
(1) The Member fails to make any payment to when due;
(2) The Member breaches the terms of this Agreement, the Provider’s Privacy Agreement or the Provider’s Conditions and Terms of Use of the Website;
(3) The Member persistently breaches the terms of any agreement between the Provider and the Member; and/or
(4) In the Provider’s reasonable opinion, any information Posted by the Member is damaging or potentially damaging to the interests of the Provider’s business then the Provider shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 6.02 hereinbelow.
6.02 If any of the events set out in clause 6.1 hereinabove occurs in relation to the Member then:
(1) The Provider may terminate this Agreement immediately; and/or
(2) The Provider may immediately suspend and/or terminate the Member’s access to the Service without notice.
PART VII - INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
7.01 All Intellectual Property Rights in the Service shall be owned by the Provider absolutely.
7.02 The Member warrants and represent to the Provider that the information Posted in the Member’s Profile is Posted by the Member and that he/she is the sole author of the Profile. The Member assigns to the Provider with full title guarantee all copyright in the Member’s Profile.
7.03 The Member agrees that he/she will keep confidential and not use, except for purposes contemplated by this agreement, any and/or all information relating to the Service which may be disclosed to the Member or which the Member may learn, except where such information is public knowledge or it is required to be disclosed by law.
7.04 The Provider will use its reasonable commercial endeavours to keep the Member’s personal details such as surname, address and telephone number and credit card number confidential and will not disclose such information, except where such information is public knowledge or it is required to be disclosed by law.
PART VIII - GUARANTEE
8.01 The Service is provided in its current form and the Provider does not guarantee that the Service, or any element of the Service will meet the Member’s requirements, purpose and/or expectations.
8.02 The Provider does not warrant that any of the information and/or material provided in the Service is accurate in any way whatsoever.
8.03 The Provider does not provide any warranty in respect of the Service, results, availability, and/or uninterrupted use of the Service.
8.04 The Provider does not warrant whatsoever that any products, forum, email or chat forming part of the Service is by a medical physician or psychological professional. THE SERVICE IS FOR ENTERTAINMENT PURPOSES ONLY AND NOT TO REPLACE THE ADVICE AND DIRECTION OF A LICENSED MEDICAL PHYSICIAN, PSYCHOLOGICAL PROFESSIONAL OR ANY OTHER TYPE OF COUNSELLOR OR PROFESSIONAL.
PART IX - USE OF THE SERVICE
9.01 The Website is merely a forum for Members to Post information about themselves and to allow the Member to make contact with other Members through use of the Service if the Member chooses to do so. We also offer options, NOT MEDICAL ADVICE; the Provider holds no responsibility should the options not work for the Member.
9.02 The Provider does not make any representation or warranty that the information contained in any profile or part of the Service is accurate and the Provider is not under any obligation to verify any information contained in any profile or any part of the Service.
9.03 Before acting on any information contained in any profile or on any information received by the Member through Listening with Heart, the Member should at the his/her own cost and expense, carry out such investigation as the Member thinks is necessary to satisfy the Member of the worthiness and accuracy of such information. Such investigation should include consulting a licensed medical and/or psychologist professional to evaluate the information of the Service to the Member.
9.04 If the Member Posts any information or relies on any option(s) or opinion(s) given then the Member does so at his/her own risk. The Member should take such precautions as he/she deems necessary to ensure his//her own safety, any repercussions derived from any unintentional reliance of another Member or the Provider.
PART X - LIMITATIONS ON LIABILITY
10.01 The Provider shall have no Liability for any defect in the Service caused or contributed to by the Member, User, and/or any other Member.
10.02 The Member shall give the Provider a reasonable opportunity to remedy any matter for which the Provider is liable before the Member incurs any costs and/or expenses in remedying the matter. If the Member does not do so the Provider shall have no Liability to whatsoever to the Member.
10.03 The Member shall produce to the Provider written evidence of any claims for which it is alleged that the Provider is liable together with written details of how any loss was caused by the Provider and the steps the Member has taken to mitigate the loss before the Provider shall have any Liability for the claim.
10.04 The Provider shall have no Liability to the Member to the extent that the Member is covered by any policy of insurance and the Member shall ensure that his/her insurers waive any and all rights of subrogation they may have against the Provider.
10.05 The Provider shall have no Liability to the Member arising out of the Member’s use of the Service and/or the Member’s reliance on any information and/or other material Posted on the Service or Posted to the Member by other Members or Users.
10.06 It is possible for other Members and/or unauthorised users to obtain and misuse information about the Member as a result of the Member’s use of the Service. The Provider shall have no Liability to the Member arising out of any Member's and/or unauthorised Member’s/User's misuse of information and/or other material Posted by the Member on the Service and/or to other Members or Users.
10.07 The Provider shall have no Liability to the Member for any:
(1) Consequential losses (including but not limited to loss of profits, damage to goodwill, damage to reputation, loss of data, loss of programs and/or service interruptions);
(2) Economic and/or other similar losses; and/or
(3) Punitive damages, special damages and indirect losses.
10.08 The Member shall be under a duty to mitigate any loss, damage, costs or expenses that he/she may suffer.
10.09 The Provider’s total Liability to the Member under and/or arising in relation to any Contract shall not exceed two (2) times the amount paid by the Member for the yearly fee of the Service under this Agreement or the sum of two hundred dollars ($200), whichever is the higher.
10.10 Each of the limitations and/or exclusions in this Agreement shall be deemed to be repeated and apply as a separate provision for each of:
(1) Liability for breach of contract;
(2) Liability in tort (including negligence); and
(3) Liability for breach of statutory duty;
except clause 10.09 above which shall apply once only in respect of all the said types of Liability.
10.11 Nothing in this Agreement shall exclude or limit the Provider’s Liability for death or personal injury due to the Provider’s negligence or any Liability which is due to the Provider’s fraud or any other Liability which the Provider is not permitted to exclude or limit as a matter of law.
10.12 Nothing in this Agreement shall exclude or limit any of the Member’s statutory rights.
10.13 The Provider shall have no Liability to the Member for any delay in performance of this Service and/or any other matters to the extent that such events and/or matters are due to any events outside the Provider’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events.
10.14 Any material that causes offence is not the Provider’s intension.
PART XI - INDEMNITY
11.01 You agree to indemnify and keep indemnified the Provider against any and all losses, proceedings, lost profits, damages, awards, expenses, costs (including increased administration costs and legal costs on a full indemnity basis), claims, actions and any other losses and/or liabilities suffered by the Provider arising from and/or relating to the Member’s use of the Service, information and/or other material Posted on the Service by the Member and/or arising from or due to any breach of contract, any tortuous act and/or omission and/or any breach of statutory duty by the Member.
PART 12 - GENERAL
12.01 We offer a service that allows women to talk about their current issues and allow others in similar positions to share information and options and opinions that may or may not have worked from them in the past.
12.02 All third party rights are excluded and no third parties shall have any right to enforce this Agreement. This shall not apply to Members who shall have the right to enforce this Agreement as if they were the Provider. Any right of a third party to enforce this Agreement may be varied and/or extinguished without the consent of the any such third party.
12.03 No waiver by the Provider of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
12.04 This Agreement contains the entire agreement between the Member and the Provider. If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
12.05 All references herein are to Canadian currency.
12.06 This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable thereto, and each party irrevocably attorns and submits to the exclusive jurisdiction of the courts of Ontario. The parties agree that all court actions including but not limited to motions, claims and injunctions be commenced in Hamilton, Ontario or other location selected by the Provider.
12.07 The section captions contained in this agreement are for convenience only and do not in any way limit or amplify any term or provision hereof. Terms as used herein shall include the plural as well as the singular; the neuter shall include the masculine and feminine genders.
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