By this User Agreement (“Agreement”), Niagara Support Services (“NSS”), a Not- for-Profit Charitable Ontario Corporation, and the User, identified as any individual who accesses or utilizes MiProfile, agree as follows:
1. PURPOSE. MiProfile is a free, electronic, web-based application (“App”), created by NSS, enabling individual Users to develop one-page personal profiles within which they are able to describe specific characteristics, interests and/or preferences unique to themselves and display pictures or images of their choosing. Once created, the profile can then be shared by emailing the hyperlink to their one-page profile to any MiProfile member or any other individual at the sole discretion of each User. The purpose of the App is to aid individual Users in effectively communicating to others how they would like to be treated and supported.
2. SCOPE AND INTENT. Each User agrees that by creating a MiProfile account through NSS, or by using the MiProfile App, they are entering into a legally binding agreement with NSS based on the terms of the within Agreement and will become a MiProfile User. By accessing MiProfile and creating a personal profile the User acknowledges that they have read and understood the terms and conditions of the within Agreement and agree to be bound by the Agreement and any other document or form that may be designated by NSS from time to time in accordance herewith as forming part of this Agreement.
3. USER SUBMISSIONS TO MIPROFILE. A User owns and is solely responsible for any and all information and/or photographs posted to their MiProfile page. As NSS does not control or oversee the content a User posts on their profile page, each User acknowledges that the posting of any information, statements, data, content, photos and/or images to their MiProfile page is done so voluntarily. The User represents and warrants that they are entitled to post the information submitted and that all content posted is accurate, non-confidential, is not in violation of any contractual restrictions or laws of the province of Ontario and does not infringe any third party rights. The User represents and warrants that they will not upload or post images that are threatening, contain nudity, are or may be considered to be pornographic in nature or that encourage or incite violence or hate. The User also represents and warrants that they will not upload any data, content and/or virus that may compromise, impair or disable the proper functioning of the MiProfile App.
It is the User’s responsibility to maintain their MiProfile account to ensure that all information is accurate and up to date. A User may delete any content or their MiProfile page in its entirety at any time. Should a User choose to delete their MiProfile account, NSS will not be liable if the User’s content is not deleted in full due to the content having been saved by another member of the User’s support network or sent to an individual who is not a member of MiProfile or the User’s support network.
4. SERVICE ELIGIBILITY. To be eligible to use MiProfile, the User must represent and warrant that they:
i. will only maintain one MiProfile account at any given time;
ii. will use their real name and provide only information that is true and accurate;
iii. have full power and authority to enter into this Agreement and in doing so do not violate any other agreement to which they may be a party; and
iv. will not violate any rights belonging to NSS or those of third parties, including intellectual property rights such as copyright and/or trade-mark rights.
5. USERSHIP. A User owns and bears sole responsibility for their MiProfile account. As between the User and other Users, each User agrees as follows:
i. to keep their password secure and confidential;
ii. not to permit others to access, use or alter their MiProfile account;
iii. not to access, use or alter the MiProfile account of another User; and
iv. not to sell, trade or transfer their MiProfile account to another party.
6. INDEMNIFICATION. Each User agrees to indemnify and hold NSS harmless for any and all damages, losses and costs (including, but not limited to, reasonable lawyers’ fees) related to all third party claims, charges and investigations caused by the User’s failure to comply with the within Agreement, including without limitation, any content posted to their MiProfile page that violates third party rights or applicable Ontario laws.
7. NOTIFICATION AND SERVICE MESSAGES. NSS reserves the right to contact the User from time to time at the email address associated with their MiProfile page in order to deliver service messages and/or notices regarding the MiProfile App.
8. USER RIGHTS. On the condition that the User comply with all of their obligations under this Agreement, NSS grants the User a limited, revocable, nonexclusive and nonassignable license and right to access the MiProfile App, through a generally available web browser or mobile device, in order that the User may view MiProfile account information and use the MiProfile App in accordance with this Agreement. Any other use of the MiProfile account that is contrary to its Purpose (as set out in section 1 above), such as seeking to connect with someone the User does not know or trust or seeking to use information gathered from other MiProfile accounts for commercial purposes without the express authorization of the other Users or NSS is strictly prohibited and considered a violation or breach of this Agreement.
9. NSS RIGHTS. NSS reserves the right to update, improve and/or expand the functionality of the MiProfile App. As such, NSS may modify, replace, refuse access to, suspend or discontinue MiProfile accounts and/or the MiProfile App, either partially or entirely, at its sole discretion. Any changes shall be communicated to Users via the email account associated with their MiProfile account. While NSS does not control or oversee User generated content, NSS reserves the right to withhold, remove or discard any content posted to a User’s account, with or without notice to the User, if the content is deemed by NSS to be contrary to the within Agreement and/or any law of the Province of Ontario. NSS also reserves the right to terminate a User’s MiProfile account in the event a User is found to have breached any of the terms of the within Agreement.
10. TERMINATION/DEACTIVATION. Either party may terminate the User’s MiProfile account, for any or no reason, with or without notice. A User may deactivate their User account and profile page by following the instructions contained within the prompt on the home page of the MiProfile App. Any termination shall be effective immediately. Termination includes disabling the User’s access to the MiProfile App as well as to their MiProfile Account.
11. NSS DISCLAIMER. THE USER ACKNOWLEGES AND AGREES THAT THE MIPROFILE APP AND USER’S ACCOUNT ARE PROVIDED BY NSS “AS IS” AND “AS AVAILABLE” AND, TO THE EXTENT PERMITTED BY LAW, WITHOUT WARRANTY BY NSS OR ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NSS SHALL HAVE NO LIABILITY WHATSOVER TO USERS FOR: (1) ANY INTERRUPTIONS OR DISRUPTIONS TO THE MIPROFILE APP OR USER ACCOUNT OR ANY OTHER DAMAGES SUFFERED BY THE USER WHICH ARE CAUSED DIRECTLY OR INDIRECTLY BY ANY FAILURES OF THE APP; (2) ANY POWER FAILURES; (3) ANY ACTS OR OMISSIONS OF THE USER INCLUDING, WITHOUT LIMITATION, DEFAMATION OR COPYRIGHT INFRINGEMENT; (4) ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS ARISING FROM OR IN CONNECTION WITH THE USER’S USE OF THE APP AND/OR PROFILE ACCOUNT; OR (6) ANY TERMINATION OF THE USER’S ACCOUNT.
12. LIMITATION OF LIABILITY. NSS, ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS SHALL NOT BE LIABLE TO THE USER OR ANY OTHER PERSON (EXCEPT FOR PHYSICAL INJURIES AS A RESULT OF NSS’ NEGLIGENCE) FOR (1) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSSES INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, LOSS OF DATA, LOSSES RESULTING FROM A THIRD PARTY’S UNAUTHORIZED ACCESS TO DATA, LOSS OF PROFIT, LOSS OF EARNINGS, FINANCIAL LOSS, LOSS OF BUSINESS OPPORTUNITY, PERSONAL INJURY, DEATH OR ANY OTHER DAMAGE OR LOSS HOWEVER CAUSED, RESULTING DIRECTLY OR INDIRECTLY, OR RELATING, IN ANY MANNER, TO THE TERMS AND CONDITIONS HEREIN OR THE MIPROFILE APP OR (2) DEFAMATION OR COPYRIGHT INFRINGEMENT THAT RESULTS FROM MATERIAL TRANSMITTED OR RECEIVED BY USERS OF THE MIPROFILE APP. THESE LIMITS APPLY TO ANY ACT OR OMISSION OF NSS, NSS EMPLOYEES, OR AGENTS, WHICH WOULD OTHERWISE BE A CAUSE OF ACTION IN CONTRACT, TORT OR ANY OTHER DOCTRINE OF LAW.
13. DISPUTE RESOLUTION. Any dispute between the parties whether arising during the period of this Agreement or at any time thereafter which attaches upon the validity, construction, meaning, performance or effect of this Agreement or the rights and liabilities of the parties or any matter arising out of or connected with this Agreement shall be subject to arbitration and pursuant to the Arbitration Act (Ontario) and the decision shall be final and binding upon the parties hereto and shall not be subject to appeal.
The arbitration shall be carried out by a single arbitrator if the parties can agree upon one, failing which, such arbitrator as shall be appointed by a judge of the Superior Court of Justice (Ontario) at St. Catharines, upon the application of any of the parties and the said Judge shall be entitled to act as such arbitrator if he or she shall so desire. The arbitration shall take place in the City of St. Catharines and the arbitrator shall fix the time and place in such Municipality for the purpose of hearing such evidence and representation as the parties or any of them may present.
The decision of the arbitrator both in procedure and the conduct of the parties during the proceedings and the final determination of the issue shall be binding upon the parties hereto and no appeal shall lie therefrom. The costs of the arbitration shall be borne by the parties hereto as may be specified in the decision of the arbitrator. Submission to arbitration pursuant to the provisions of this Article shall be a condition precedent to the bringing of an action with respect to this Agreement.￼￼￼
14. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and there are no representations, warranties, covenants, agreements or collateral understandings, oral or otherwise, expressed or implied, affecting this instrument which are not expressly set forth herein.
15. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada, as applicable.
16. WAIVER OF DEFAULT. Waiver by NSS of any default by the User shall not be deemed a continuing waiver of such default or a waiver of any other default.
17. SEVERABILITY. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of the Agreement.
18. ENUREMENT. This Agreement shall be binding upon and enure to the benefit of the parties and their respective legal successors and permitted assigns.