TERMS OF SERVICE

Last Updated: November 13th, 2020


  1. BACKGROUND


    1. You must read, agree with and accept all of the terms and conditions contained in this Terms of Service agreement, including Bookmark’s Privacy Policy, and, if applicable, Data Processing Addendum (“DPA”), and White Label Reseller Program before you may become a Bookmark user.


    2. These Bookmark Terms of Service (the “Agreement”) govern Customer’s access to and use of the Bookmark Services. This Agreement forms a binding legal agreement between Bookmark Your Life Inc. (“Bookmark”, “us”, “we”, “our”) and Customer. The term “Customer” or “you” refers to the individual using the Bookmark Services. If an individual is using the Bookmark Services on behalf of an organization, “Customer” or “you” refers to that organization. The “Parties” refer to Bookmark and Customer and “Party” refers to each of Bookmark and Customer.


    3. BY ACCESSING OR USING THE WEBSITE OR THE BOOKMARK SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH ALL THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 3.4. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE WEBSITE AND BOOKMARK SERVICES.


    4. CUSTOMER REPRESENTS AND WARRANTS TO BOOKMARK THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE BOOKMARK SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO BOOKMARK THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.


    5. This Agreement is entered into the earlier of: (a) the date Customer first uses any part of the Bookmark Services; and (b) the date Customer agrees to be bound by this Agreement (the “Effective Date”).


  2. DEFINITIONS


    1. Affiliate” means, with respect to a party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that party. As used in this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.

    2. Applicable Laws ”means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.


    3. Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads, receives through, transmits to or enters into the Website, Bookmark Services and any Hosted Website, including but not limited to Personal Information.


    4. Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Bookmark, Customer, the Bookmark Services, the Customer Data or any other person, property, transaction, activity, event or other ma[er related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities.


    5. Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.


    6. Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.


    7. Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.


    8. Order Form” means any online sign-up or ordering form by which Customer signs up to obtain Bookmark Services, or any additional order form that references this Agreement and that is agreed to by the parties.


    9. Permitted User(s)” means those employees [and independent contractors] authorized by Customer to access and use the Bookmark Services on Customer’s behalf.


    10. Personal Information” means information about an identifiable individual or information that is subject to applicable privacy or data protection laws.

    11. Bookmark Services” means: (a) services through which Bookmark hosts and makes available the website hosting, online store, and other e-commerce website tools as described in an Order Form; (b) any component or Modification of the services referred to in (a); and (c) the Support Services.


    12. Website” means any websites used by Bookmark to provide the Bookmark Services, including the website[s] located at [Insert URL(s) of every website used in the operation of your business.]


  3. SERVICES


    1. Provisioning of the Bookmark Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Bookmark will make the Bookmark Services available to Customer on the terms and conditions set out in this Agreement during the Term.


    2. Website Hosting; Content. As part of the Bookmark Services, we may provide you with website templates and may host a website (a “Hosted Website”) and provide certain website functions on your behalf. The templates we provide may be populated with sample content. You will not make these templates or the sample content publicly available and that you will remove all sample content from your Hosted Website before permitting any third parties to access or use the Hosted Website.


    3. Restrictions on Use. Customer will abide by all Applicable Laws when using the Website or Bookmark Services, including when creating a Hosted Website. Customer will not itself, and will not permit others to:


      1. sub-license, sell, rent, lend, lease or distribute the Bookmark Services or any Intellectual Property Rights therein, or otherwise make the Bookmark Services available to parties other than the Permitted Users;


      2. use the Bookmark Services to permit timesharing, service bureau use or commercially exploit the Bookmark Services;


      3. use or access the Bookmark Services: (i) in violation of any Applicable Law or Intellectual Property Right; (ii) in a manner that threatens the security or functionality of the Bookmark Services; or (iii) for any purpose or in any manner not expressly permitted in this Agreement;


      4. use the Bookmark Services to create, collect, transmit, store, use or process any Customer Data: (i) that Customer does not have the lawful right to create, collect, transmit, store, use or process; (ii) that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (iii) that

        contains any computer viruses, worms, Trojan horses, time bombs, cancelbots, malicious code, or any so`ware intended to damage or alter a computer system or data;


      5. upload (including into a Hosted Website), post, email or otherwise transmit any Customer Data that:


        1. constitutes unsolicited, unauthorized or excessive advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," commercial electronic messages or that was created for the purposes of gaining search rankings or Facebook likes;


        2. is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, false or misleading, invasive of another's privacy, hateful, racially, ethnically or otherwise objectionable, or is of a sexual nature or adult themed;


        3. may provide an injurious experience for users such as extreme flashing, excessive animated movement, or content that would provoke seizures; or


        4. create a false identity of the operator of a Hosted Website, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the operator of any Hosted Website or the origin of any material transmitted through the Website or the Hosted Website;


        5. alter transmission data without consent;


        6. host or store files for other users on the Website or Hosted Website; and


        7. use, download or otherwise copy, or provide to any person or entity any Website users directory or other user or usage information or any portion thereof other than in the context of your use of the Website.


        8. Modify the Bookmark Services;


        9. attempt to reverse engineer, de-compile or disassemble the Bookmark Services;


        10. access or use the Bookmark Services for the purpose of building a similar or competitive product or services; or

        11. perform any vulnerability penetration or similar testing of the Bookmark Services.


    4. Suspension of Access; Scheduled Downtime; Modifications. Bookmark may, from time to time and in its discretion without limiting any of its other rights or remedies at law or in equity under this Agreement:


      1. suspend Customer’s access to or use of the Bookmark Services if Customer breaches this Agreement, and such breach (i) is incapable of cure; or (ii) being capable of cure, remains uncured seven days a`er Bookmark provides Customer with written notice of such breach; and


      2. make any Modifications to the Bookmark Services provided the Bookmark Services continue to materially conform to the description set forth in the Order Form.


  4. OWNERSHIP


    1. Customer Data. Except as specifically set forth in this Agreement, nothing in this Agreement assigns or grants to Bookmark any right, title or interest including any Intellectual Property Rights in or to Customer Data. Customer grants to Bookmark a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right during the Term to access, collect, use, process, store, disclose and transmit Customer Data to: (a) provide the Bookmark Services; (b) improve and enhance the Bookmark Services and its other offerings; and (c) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Bookmark may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind


    2. Forums. Bookmark may provide you with the opportunity to participate in a discussion forum or bulletin board (“Forum”). Bookmark is not responsible for any content or data posted on the Website or in such Forums and will not have any liability related to the content of any such communications, whether or not arising under the laws of copyright, libel, privacy, obscenity or otherwise. Bookmark may, but is not obligated to, monitor or review activity and the content of any communications on the Website and in the Forums. Bookmark reserves the right to terminate the privilege of any user to post on a Forum if such users violate this Agreement.


      For any content data or information you post to a Forum, you grant Bookmark a royalty-free, irrevocable, transferable right and license to use the content however Bookmark desires, including without limitation, to copy, reproduce, delete in its entirety, adapt, publish, communicate by telecommunications to the public all or any portion of the content, translate, create derivative works from

      and/or distribute such content and/or incorporate such content into any form, medium or technology throughout the world, in all cases without compensation to you.


    3. Reservation of Rights. Bookmark or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (a) the Bookmark Services; (b) any and all content, templates, data, graphics, photographs, images, audio, video, so`ware, systems, processes, trademarks, service marks, trade names and other information including, without limitation, the "look and feel" of the Website or the Bookmark Services (collectively, the "Content"); (c) anything used, developed or delivered by or on behalf of Bookmark under this Agreement; and (d) any Modifications to the foregoing (a), (b) and (c).


  5. PRIVACY


    1. Privacy. Bookmark respects your right to privacy. You acknowledge that Personal Information, including Personal Information of Permitted Users, will be treated in accordance with our Privacy Policy located at https://www.bookmark.com/ privacy.


  6. CUSTOMER USER ACCOUNT; RESPONSIBILITY FOR PERMITTED USERS


    1. Registration. To access certain portions of the Website and/or to use certain Bookmark Services, you may be asked to complete an online registration form. In consideration for your use of this Website and the Bookmark Services, you will provide true, current, complete and accurate information as requested on any registration form to which this Website may direct you, and to update that registration information as soon as possible a`er any information on such registration form changes.


    2. Permitted Users and Accounts. Upon registration, Bookmark will issue one account (the “Customer User Account”) to you for use by you and all individuals who are your employees or contractors that you wish to have access to and use of the Bookmark Services (each, a “Permitted User”). You will ensure that Permitted Users only use the Bookmark Services through the Customer User Account. You will not allow any Permitted User to share the Customer User Account with any other person. You are responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Bookmark Services in compliance with this Agreement


    3. Unauthorized Use. You will promptly notify Bookmark of any actual or suspected unauthorized use of the Bookmark Services. Bookmark reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.

    4. Responsibility for Users. You will ensure that all individual users of the Bookmark Services, including Permitted Users, are contractually bound to terms and conditions that are no less restrictive or protective of Boomark’s rights than those set forth in this Agreement


    5. Bookmark may terminate any free account if it is inactive (zero log ins) for 12 or more months. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including your websites.


  7. TRIALS & PURCHASES


    1. Order Process. You will not be able to make changes to your order once you have submitted it. Bookmark reserves the right, at its sole discretion, to cancel or refuse any order for any reason. Some situations that may result in your order being cancelled or refused are (a) inaccuracies or errors in pricing information on the Website; or (b) our inability to confirm or obtain authorization for charges to your credit card. We may also require additional verifications or information before accepting any order. Bookmark will contact you if all or any portion of your order is cancelled or if additional information is required to accept your order.


    2. Prices & Currency. The prices displayed on the Website are shown in US dollars. You are responsible for the payment of any federal or provincial taxes that may apply to your order. These taxes are included in the prices displayed on the Website.


    3. Payment Methods. You may pay for your order using any of the methods presented to you during checkout. Your name, address and postal code must match the name, address and postal code associated with your payment method. You authorize Bookmark to charge the applicable payment method the total amount of your order, including applicable taxes. You represent and warrant that you are the holder and authorized user of the applicable card or account. If your payment method cannot be validated or processed, Bookmark will have no obligation to fulfil your order.


    4. Subscription Memberships. All subscription membership purchases made on the Website will renew automatically. Unless you notify us or cancel your subscription in your account settings before a charge that you want to cancel, you understand that your purchase will automatically renew on the interval you selected during your original purchase, and you authorize us to collect the then- applicable fee and any taxes, using the payment card provided when you made the original purchase.


    5. Refunds. We offer a 14-day money back guarantee on our subscription memberships. If you are not satisfied with your purchase, you can contact our help center within 14-days of your purchase for a refund. No refunds will be provided on the purchase of domain names, email services or stock photos.

    6. One-Year Free Domain Name. If the cost of registering a single domain name for one year is included in the annual subscription membership you are purchasing on the Website, and the domain name that you wish to register is both an eligible type of domain name and available, Bookmark will register the domain for you without charging the domain registration fee so long as you continue to subscribe to the Bookmark Services for a period of at least 12 months. However, if the subscription is terminated less than 12 months a`er registering the domain name, or you attempt to transfer the domain name during that 12 month period, Bookmark will charge you and you are required to pay Bookmark’s then current fee for registering a domain name.


  8. SUPPORT


    1. Support. Bookmark will provide Customer with technical support for the Bookmark Services (“Support Services”) via Bookmark’s knowledge base and documentation available online at https://help.bookmark.com/en/.


  9. SERVICE LEVELS


    1. Service Levels. Bookmark will use commercially reasonable efforts to make the Bookmark Services available on a 24 x 7 x 365 basis with an objective of achieving [99.50]% availability for each [calendar month], excluding downtime or suspension of the Bookmark Services for scheduled maintenance or due to a Force Majeure (the “Availability Service Level”). If Bookmark fails to meet its Availability Service Level in any [calendar month] during the Term, Customer will be entitled to credits as follows:


  10. FEES AND PAYMENT


    1. Fees. Customer will pay to Bookmark the fees described in any Order Form (the “Fees”). Unless otherwise noted on an Order Form, all Fees are identified in US dollars and are payable in advance. [If Customer’s use of the Bookmark Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.]


    2. Changes to the Fees. Bookmark reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than [60] days prior notice to the Customer.

    3. Invoicing. Bookmark will bill the Customer, using the then-current payment method on file with Bookmark, for any Fees that have become due and payable, either monthly or annually in accordance with the Order Form.


    4. Disputed Invoices or Charges. If Customer believes Bookmark has charged Customer incorrectly, Customer must contact Bookmark no later than [30] days a`er having been charged by Bookmark in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.


    5. Late Payment. Customer is responsible for keeping its payment method information up to date. Bookmark reserves the right to suspend Customer’s access to the Bookmark Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of [1.5% compounded monthly (19.56% annually)], or the maximum legal rate (if less), plus all expenses of collection, until fully paid.


    6. Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Bookmark.


    7. Suspension. Any permitted suspension of the Bookmark Services by Bookmark pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.


  11. DOMAIN NAME REGISTRATION


    1. Ownership and Maintenance. By purchasing a domain name, you become the legal owner of the domain name. You acknowledge that domain name registry and associated services are provided to you and managed by an independent third party registrar. You will be the registrant, administrative contact and technical contact, and you agree to be bound by all applicable terms and conditions published by the applicable registrar (http://www.opensrs.com/docs/ contracts/exhibita.htm). You are responsible for the ongoing maintenance, control and use of any domain name registered in your name and for any fees or taxes associated with its maintenance. Bookmark will make reasonable efforts to contact you before the end of the registration period and provide you with the option to renew your domain name registration. Bookmark shall not be liable for loss of the domain name.

    2. ICANN Requirements. You will comply with the ICANN requirements, standards, policies, procedures, and practices for which each applicable Registry Operator has monitoring responsibility in accordance with the Registry Agreement between ICANN and itself or any other arrangement with ICANN. https://www.icann.org/


    3. Privacy Registration. You are responsible for obtaining privacy registration of your domain name.


    4. As is. Assistance with registering domain names and securing related privacy services is provided “as is” and without any warranties, representations or conditions whatsoever.


  12. CONFIDENTIAL INFORMATION


    1. Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (a) information already known or independently developed by Recipient without access to Discloser’s Confidential Information;

      1. information that is publicly available through no wrongful act of Recipient; or

      2. information received by Recipient from a third party who was free to disclose it without confidentiality obligations.


    2. Confidentiality Covenants. Recipient will during the Term and at all times thereafter it will not, except to exercise its rights or perform its obligations under this Agreement: (a) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (b) use Confidential Information of the Discloser; or (c) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.


    3. Exceptions to Confidentiality. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar

      judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (b) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.


  13. WARRANTY; DISCLAIMER


    1. Customer Warranty. Customer represents and warrants to, and covenants with Bookmark that the Content will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Bookmark to provide the Bookmark Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Bookmark and to or from all applicable third parties.


    2. GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BOOKMARK DOES NOT WARRANT THAT THE BOOKMARK SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BOOKMARK SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE BOOKMARK SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY BOOKMARK TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BOOKMARK DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE BOOKMARK SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.


      ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD-PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.


      TO THE EXTENT

      TO THE EXTENT PERMITTED BY APPLICABLE LAW, BOOKMARK HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR

      FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.


  14. INDEMNITY


    1. Customer Indemnity. Customer will defend, indemnify and hold harmless Bookmark, and its officers, directors, employees and agents (each, a “Bookmark Indemnitee”) from and against any and all Losses incurred by a Bookmark Indemnitees arising out of or relating to any Action by a third party (other than an Affiliate of a Bookmark Indemnitee) that arise from or relate to: (a) Customer Data; (b) Customer’s breach of any Customer’s obligations, representations, warranties or covenants under this Agreement; (c) use of the Bookmark Services (or any part thereof) by Customer or any Permitted User in combination with any third party so`ware, application or service ; (d) unauthorized use of the Bookmark Services or any wilful misconduct in relation thereto by Customer or any Permitted User; or (e) the use of, access to, interaction with or reliance upon, your Hosted Site. Customer will fully cooperate with Bookmark in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Bookmark.


  15. LIMITATION OF LIABILITIES


    1. Limitation as Essential Bases of Bargain. The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:


    2. Amount. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF BOOKMARK IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE BOOKMARK SERVICES IN THE [12 MONTH] PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. WHERE THE BOOKMARK SERVICES UNDER THIS AGREEMENT ARE BEING PROVIDED FREE OF CHARGE, BOOKMARK’S TOTAL LIABILITY IN CONNECTION WITH OUR UNDER THIS AGREEMENT WILL NOT EXCEED [$100 USD]. IN NO EVENT WILL BOOKMARK’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.


    3. Type. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BOOKMARK BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOST OR LOSS OF (I) SAVINGS, (II) PROFIT, (III) DATA, (IV) USE, OR

      (V) GOODWILL; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (F) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.


  16. TERM AND TERMINATION


    1. Term. This Agreement will commence on the Effective Date and continue to be in effect for a period of one month or one year (the “Term”) whichever is chosen by the Customer at the time of entering the Agreement. The Term will automatically renew for a successive one month or year term whichever is applicable unless cancelled by either party before the expiration of the Term.


    2. Termination for Convenience. While the agreement may be cancelled by either party at any time, the cancellation will come into effect only at the start of the next billing cycle irrespective of the date the cancellation was requested and as such, no payments shall be made in lieu of the days remaining in the Term.


    3. Termination for Cause. Either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days a`er the non-breaching party provides the breaching party with written notice of such breach.


    4. Transition. Upon effective termination of this Agreement, the Customer will immediately cease the ability to access or use paid Bookmark Services. Notwithstanding the termination of the Agreement, the Customer shall nevertheless be able to access Bookmark services made available through a free membership model. Should the Customer choose to completely delete his account through mechanism set forth in the DPA, Bookmark shall (at Customer's election) delete all Customer Data (including copies) in its possession or control within a reasonable amount of time, save that this requirement shall not apply to the extent Bookmark is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data Bookmark shall securely isolate and protect from any further processing, except to the extent required by applicable law.


    5. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: (a) Fees and Payment; (b) Confidential Information;

      (c) Warranty; Disclaimer; (d) Limitation of Liabilities; (e) Survival; and (f) General Provisions.


  17. GENERAL PROVISIONS


    1. Mandatory Mediation. Unless and except otherwise expressly agreed in writing by Bookmark and Customer at the time of the Agreement, for any dispute between the parties relating to the application, interpretation, implementation or validity of this Agreement, or any of the transactions contemplated or completed, both the parties shall be required to enter into a mandatory mediation of such dispute or disagreement prior to the initiation of any action or proceeding against the other. In the event of a dispute, the disputing party shall be required to serve a notice on the other party stating a desire to resolve a particular dispute by mediation. The mediator shall be appointed by mutual agreement between the Parties Moreover, the mediation will be held in Toronto, Ontario. The Parties agree to attempt to resolve their dispute at mediation. The costs of the mediator shall be shared equally by the Parties. If the dispute has not been resolved within ninety days of the notice of desire to mediate, any Party may terminate the mediation and proceed to arbitration as per law.


    2. Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day a`er being sent by overnight courier, or five days a`er being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent:

      1. if to Bookmark, to the following address:


        171 East Liberty Street, Unit 200. Toronto, Ontario M6K 3R3 AttenKon: Bookmark Your Life Inc.

        and (b) if to Customer, to the current postal or email address that Bookmark has on file with respect to Customer. Bookmark may change its contact information by posting the new contact information on the Website or by giving notice thereof to the Customer. Customer is solely responsible for keeping its contact information on file with Bookmark current at all times during the Term.


    3. Assignment. Bookmark may, upon giving written notice to Customer, assign its rights and obligations under this Agreement to [any of its Affiliates]. In this case, such assignee will have and may exercise all the rights, and will assume all of the obligations of Bookmark under this Agreement, except that the assignment will not release Bookmark from liability for Bookmark’s obligations under this Agreement. Except for such permitted assignment, neither party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of each of the other party. This Agreement ensures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.

    4. Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts signing therein. Notwithstanding the foregoing, Bookmark may: (a) commence lawsuits to collect unpaid fees from Customer; and (b) seek injunctive relief with respect to a violation of Bookmark’s Intellectual Property Rights; in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.


    5. Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Bookmark Services.


    6. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.


    7. Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).


    8. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.


    9. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.


    10. Independent Contractors. Bookmark’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and neither party will represent to any third party that it has, any authority to act on behalf of the other party.

    11. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the parties, whether written or oral.


    12. Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, BOOKMARK MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (A) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (B) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY BOOKMARK, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).


    13. English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y ra[achent soient rédigés en anglais.