Cynergy Interactive - Terms and Conditions

Terms and Conditions

1. Definitions and Interpretation

1.1 "This Agreement" means the completed Application Form and the terms and conditions herein as from time to time amended, modified or varied.

"Application Form" means the application form or registration form in relation to the Affiliate Network completed in full and submitted by Affiliate to Cynergy (as defined below).

"Affiliate" means the persons whose applications to enter into this Agreement are accepted by Cynergy Interactive.

"Person(s)" includes individual(s), corporation(s) and unincorporated bodies of persons.

2. Cynergy's Rights

Cynergy actively monitor information stored within the Cynergy systems, Cynergy shall have the right to manage and control the access to computer systems and information stored within the Cynergy system in a manner deemed appropriate by Cynergy. Subject to any applicable laws, regulations or the directions of any relevant authority, Cynergy may, in its sole discretion, if it deems appropriate, vary, amend or suspend an Affiliate or any part thereof including but not limited to the removal of membership rights on its servers, the removal of postings on its news Affiliate Network and the blocking of electronic messages through its mail servers.

3. Obligations

3.1 Affiliate shall :

be solely responsible for the set-up or configuration of his or her equipment for access to the Affiliate Network and shall provide at his or her own expense;

be solely responsible for obtaining, at his or her own cost, all licenses, software, permits, consents, approvals and intellectual property rights as may be required;

comply with the rules of any network through which Affiliate accesses the Affiliate Network;

not intentionally attack Cynergy's network system and/or the Affiliate Network, nor create or cause a situation whereby other affiliates are affected in their use of the Affiliate Network; and

not use Cynergy's network system and/or the Affiliate Network to cause harm to any third party including, but not limited to circumvention of user or security of any host, network or account, and not to launch a technical attack on other users of the Affiliate Network or other Internet Affiliate Network.

3.2 Affiliate undertakes :

to comply with and shall not contravene all applicable laws, regulations and directives including without limitation the laws of Ontario;

where it is a corporation, not to allow any person (other than the authorized persons named in the Application Form) to use the Affiliate Network; and

not to share the Affiliate Network with any person without the prior written approval of Cynergy and shall use the Affiliate Network only for the purpose for which it is subscribed.

4. Software

4.1 Affiliate shall be solely responsible for ensuring that such software is suitable for his or its needs and the compatibility of such software for use with any equipment used by him or her, whether or not any changes are introduced to the Affiliate Network by Cynergy; and

Affiliate shall adhere to all instructions and notices (written or otherwise) given by Cynergy whether originating from Cynergy or any other person from time to time regarding the use of such software.

4.2 Cynergy shall not be responsible in any way for software. In the event that Affiliate uses such software in connection with the Affiliate Network, Cynergy will not be liable for any fault, loss and/or damage of whatever nature resulting directly or indirectly from such use.

5. Disclaimer

5.1 Cynergy shall not be liable to Affiliate for any cost, claim, liability, expense, demand or damages whatsoever (including any loss of profits, lost savings or incidental or consequential damages) arising out of Affiliate's use of or inability, even if Cynergy or any of its authorised representatives has been advised of the possibility of such damages, or for any claim by any other person whatsoever.

5.2 Any condition or warranty which may be implied or incorporated within this Agreement by reason of statute or common law or otherwise (including warranties as to satisfactory quality and fitness for purpose) is HEREBY EXPRESSLY EXCLUDED.

5.3 No advice or information, whether oral or written, obtained by Affiliate from Cynergy or through the Affiliate Network shall create any warranty not expressly made herein.

6. Indemnity

Affiliate shall indemnify and hold Cynergy harmless at all times against all actions, proceedings, costs, claims, expenses (including legal costs on a full indemnity basis), demands, liabilities, losses (whether direct, indirect or consequential) and damages (whether in tort, contract or otherwise) whatsoever including without limitation claims made by third parties and claims for defamation, infringement of intellectual property rights, death, bodily injury, wrongful use of computers, unauthorised or illegal access to computers (including but not limited to hacking), property damage or pecuniary losses howsoever arising which Cynergy may sustain, incur, suffer or pay arising out of, in connection with or pursuant to this Agreement or the use of Affiliate's account whether authorised or not authorized or the use of the Affiliate Network by Affiliate or any act or omission of Affiliate thereof.

7. Confidentiality

7.1 AFFILIATE SHALL NOT DIVULGE OR COMMUNICATE TO ANY PERSON OR USE OR EXPLOIT FOR ANY PURPOSE WHATSOEVER (OTHER THAN THAT CONTEMPLATED IN THIS AGREEMENT) ANY CONFIDENTIAL INFORMATION WHICH MAY OR MAY HAVE COME TO HIS OR HER KNOWLEDGE BY REASON OF OR IN CONNECTION WITH THIS AGREEMENT, AND SHALL USE ALL REASONABLE EFFORTS TO PREVENT ITS EMPLOYEES, OFFICERS, AGENTS AND CONSULTANTS FROM SO ACTING, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF CYNERGY OR WHERE REQUIRED TO BE DISCLOSED PURSUANT TO ANY APPLICABLE LAW OR LEGAL PROCESS USED BY ANY COURT OR THE RULES OF ANY RELEVANT REGULATORY BODY.

7.2 Cynergy shall not divulge or communicate to any person (other than those who have been bound under a similar obligation of confidence as Cynergy) any confidential information which may or may have come to its knowledge by reason of or in connection with this Agreement, except with the prior consent of the Affiliate or where required to be disclosed pursuant to any applicable law or legal process used by any court or the rules of any relevant regulatory body. Affiliate agrees that Cynergy may disclose to third parties certain registration data and certain information about the Affiliate provided that such disclosures do not include Affiliate's name, mailing address, credit history, usage patterns, network configuration, telephone or facsimile number.

7.3 Affiliate acknowledges and agrees that Cynergy may from time to time access his or her content and other parts of the Affiliate Network as necessary to identify or resolve technical problems or to respond to Affiliate Network complaints. Affiliate acknowledges and agrees that certain technical processing of information is and may be required (a) to send and receive such data; (b) to perform planning and scheduling functions; (c) to conform to the technical requirements of connecting networks; (d) to conform to the technical requirements of the Affiliate Network; or (e) to conform to other similar technical requirements.

8. Variation and Waivers

8.1 Cynergy reserves the right to amend the terms and conditions contained herein at any time upon written notice (in such form as may be determined by Cynergy) to Affiliate. Affiliate agrees that notice via electronic mail to the Affiliate's electronic mail address, by the posting on Cynergy's website or by the posting of advertisements in major newspapers in Ontario shall be deemed to be sufficient written notice for the purposes of this clause 8.1.

8.2 Without limitation to the generality of the foregoing, any provision of this Agreement may be varied, supplemented or amended only if Cynergy so agrees in writing. Any provision of this Agreement may be waived only if Cynergy so agrees in writing provided that such waiver may be given subject to conditions thought fit by Cynergy and shall be effective only in the instance and for the purpose for which it is given.

8.3 No failure on the part of Cynergy to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies (whether provided by law or otherwise).

9. Assignment

The rights and obligations under this Agreement shall not be capable of assignment by Affiliate without the prior written consent of Cynergy, but subject thereto, shall be binding on and inure for the benefit of his or its successors and permitted assigns.

10. Force Majeure

Cynergy shall not have any liability for any delay or default in the performance of its obligations under this Agreement caused by circumstances beyond its control and without the fault or negligence of Cynergy including but not restricted to acts of God, acts of the public, enemy, decrees or restraints by governmental authorities, strikes, war, riots, insurrections, civil commotion and other causes of such nature. In any of the events mentioned above, Cynergy shall for the duration of such event, be relieved of any such obligation under this Agreement as is affected by the said event.

PROVIDED that the provisions of this Agreement shall remain in force with regard to all other obligations under this Agreement which are not affected by such event.

And PROVIDED further that the parties shall resume their full obligations under this Agreement upon the cessation of such event.

11. Governing Law and Jurisdiction

This Agreement is governed by, and construed in accordance with, the laws of the Province of Ontario and each of Affiliate and Cynergy hereby submits to the exclusive jurisdiction of the Ontario courts.

12. Severability

If any provision in this Agreement is found or held to be invalid or unenforceable, then the meaning of such provision shall be construed to the fullest extent allowed by law so as to render the provision valid and enforceable, and if no such construction is possible, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect and the parties to this Agreement shall use their best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

13. Legal Costs

Without prejudice to any of the other provisions of this Agreement and to any other rights and remedies which Cynergy may possess, Affiliate shall at all times be liable for and shall indemnify Cynergy against all costs and expenses (including legal costs on a full indemnity basis) which Cynergy may sustain, incur, suffer or pay in protecting or enforcing any rights under this Agreement.

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