PLEASE REVIEW THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
1. Ownership and Copyright of Site
- Ownership – Save and except for the access license granted pursuant to Article 2, the content of the Site and the expression, organization, gathering, compilation, magnetic translation, digital conversion, electronic transmission thereof are protected under applicable law relating to copyrights, trademarks and other proprietary rights (including but not limited to intellectual property) and are strictly reserved in favour of SHIFT. Except as permitted by Article 1(3) below, the User does not acquire ownership rights to any content or document obtained through the Site
- No Copying etc. – The copying, redistribution, use or publication by a User of any content or other part of the Site, except as allowed by Article 2, is strictly prohibited.
- User Content – Notwithstanding this Article 1, SHIFT will not acquire any ownership, or proprietary rights in any form (including copyright, trademark or other intellectual property right), to any document or information uploaded to the Site by the User in accordance with the license contemplated in Article 2. However, by allowing a User to upload information, contribute materials, or use the Site’s requesting and/or messaging capability, SHIFT in no way waives any of its proprietary rights to the Site information and materials as contemplated in this Article 1(1) and (2) above.
2. CONDUIT Access License
- Purpose – The User is hereby granted a non-exclusive non-transferable license to access the Site for the purpose of uploading and accessing “status certificates” (as that term is defined in the Condominium Act, 1998 (Ontario)) in an electronic form for a particular unit at a particular point in time in a condominium created under the Condominium Act, 1998. The licenses granted herein shall conform to the rights attaching to the User’s access account as set out below.
- Requestor Accounts – Users who receive a Requestor Account for Site access have the right to request an electronic status certificate from any other User holding a Company Account or Staff Account. Such Users shall also have the right to access and view, for a period of thirty (30) days, any electronic status certificate that they have so requested. SHIFT may extend this period at its discretion and subject to such additional fees, terms and conditions as SHIFT deems necessary.
- Board Accounts – Only Users who constitute Condominium Act, 1998 corporations, or directors or officers thereof, may receive a Board Account for Site access. Board Account Users shall have the right to access and view electronic status certificates issued for units within their own condominium.
- Staff Accounts – Only Users who are employees (which shall include independent contractors) of a corporation or individual holding a Company Account (as defined below) may receive a Staff Account for Site access. Staff Account Users may,
- upload the components of a status certificate to the Site in Adobe ® Personal Document Format (PDF) or such other file format as permitted by SHIFT. The components of the electronic status certificate shall strictly conform to the requirements of s. 76(1) of the Condominium Act, 1998 and the regulations thereunder, including such requirements with respect to the Form 13 – Status Certificate under O.Reg 48/01. Any such status certificate components requiring a signature may be electronically signed under s. 11(1) of the Electronic Commerce Act (Ontario);
- create Requestor Accounts and Board Accounts, and are hereby authorized to sub-license access to the Site to such Users who qualify for those accounts; and
- access the archive of electronic status certificates for all condominium corporations clients belonging to such User’s employer.
- Company Accounts – Company Accounts shall only be granted to Users by SHIFT, and can include property management companies and condominium corporations. Company Account Users,
- may use the Site to add and maintain a list of all of their condominium corporation clients (if any);
- may create Staff Accounts, and are hereby authorized to sub-license access to the Site to such Users who qualify for those accounts; and
- shall enjoy all of the privileges and benefits of a Staff Account, including the ability to create Requestor Accounts and Board Accounts, along with the authority to grant any requisite sub-licenses contemplated thereby.
3. General License Limitations
- Account Password and Security – All of the accounts contemplated above require that all Users establish a SHIFT-approved login and password. Users are entirely responsible for keeping their account information confidential and are required to notify SHIFT immediately of any authorized use or other breach of security. The Login and Passwords may only be used by a single User and are non-transferable without SHIFT’s consent. A User may be liable, in accordance with Article 7 (Indemnification), for any losses incurred by SHIFT as a result of failing to comply with this paragraph.
- Account Changes – In addition to any other rights hereby reserved, SHIFT hereby reserves the right to add new categories of accounts for access to the Site, and to change the nature, characteristics and rights associated with any of the existing accounts set out above.
- License Revocation – In addition to any other rights hereby reserved, where a User violates the terms of this Agreement SHIFT reserves the right to deny such User access to the Site, and revoke such User’s license by cancelling that User’s access account at any time.
4. Status Certificate Deadline
- Site Availability for Deadlines – Where User requires an electronic status certificate by a statutorily prescribed deadline (including the ten (10) day deadline contemplated in s. 76(3) of the Condominium Act, 1998), SHIFT shall only be required to use its best commercial efforts to make the Site available so as to allow the User to upload, access and download an electronic form of said status certificate and components by such deadline. However, this obligation shall be conditional on the following:
- the User accurately disclosing to SHIFT the date of the request and/or date of any fee the payment made under s. 76(3) of the Condominium Act, 1998; and
- the User accurately calculating the deadline in accordance with any relevant statutory requirements, including s. 76(3) of the Condominium Act, 1998, and advising SHIFT of that deadline in writing.
- Qualification on Availability – Save and except as expressly provided in paragraph (1) above, and in addition to any other disclaimer provided herein, SHIFT in no way represents, warrants or guarantees that the Site will be available to allow the User to upload or download a status certificate within any deadline or time period. Furthermore, for greater clarity, SHIFT in no way assumes any obligation on the part of any User to provide the status certificate within any prescribed deadline, and hereby disclaims any liability for any User who fails to deliver a status certificate because such User relied solely on the Site. IF THE SITE IS UNAVAILABLE IT IS THE USER’S SOLE RESPONSIBILITY TO REQUEST, GENERATE AND DELIVER A STATUS CERTIFICATE BY SOME OTHER MEANS.
5. Disclaimer and Limitation of Liability
- Disclaimer – The forms, condominium declarations, by-laws, rules, agreements, other prescribed status certificate attachments, other site content, and other information from or through the Site are made available on an “as is” basis. All representations warranties, express or implied, are disclaimed including but not limited to the disclaimer of any implied warranties,
- that the electronic form of status certificate will satisfy any obligations imposed on the User to obtain and deliver a status certificate under the Condominium Act, 1998 (Users are encouraged to seek their own independent legal advice in respect of same);
- for the quantity, quality or accuracy of any electronic status certificate or whether such status certificate conforms to the requirements of the Condominium Act, 1998 or any successor legislation thereto; and
- for merchantability and fitness for a particular purpose in respect of any product or service included on the Site.
The User assumes all responsibilities and obligations with respect to any decision to upload or download content with respect to an electronic status certificate, or when deciding to select and/or rely on an electronic status certificate, any other document or any other Site material, to achieve the User’s intended result.
- Particular Situations – The status certificate and other information within the Site, or available through the Site, may not be appropriate under the circumstances for any particular transaction. The specifics of a given situation may require provisions not contemplated in the forms or documents. No representations, warranties or guarantees whatsoever are made as to the accuracy, currency, completeness, adequacy, reliability, suitability, quality or applicability of any information contained herein, including any information uploaded by a User for use in an electronic status certificate, to a particular situation.
- Site Accessibility and Viruses – The Site may be unavailable or inaccessible from time to time, at any time, due to routine maintenance, errors, problems or other unforeseeable causes. Moreover, the information on the Site may contain bugs, errors, problems or other limitations. All responsibility or liability for any damages caused by viruses contained within the electronic file containing the form or document is hereby disclaimed.
- Servers in Foreign Jurisdictions – The User hereby acknowledges that SHIFT may host the Site but, in so doing, may utilize servers and hosting services based outside of Ontario or Canada. Any documents, materials and status certificate information uploaded to, or download from, the Site may be stored in servers located in, and subject to, the laws of a foreign jurisdiction. Such laws can include (without limiting the generality of foregoing) criminal and administrative legal requirements relating to investigation, search and seizure. Additionally, any information stored on servers located in the United States of America may be subject to search and seizure by United States Federal authorities under the U.S.A Patriot Act and other laws of the United States relating to national security. SHIFT hereby disclaims any and all liability with respect to the enforcement of foreign laws, including the Patriot Act.
- Limitation of Liability – SHIFT and its, shareholders, directors, officers, employees and affiliates have no liability whatsoever for a User’s reliance on an electronic status certificate from the Site or use of any information contained on the Site. In particular, but not as a limitation thereof, SHIFT and its affiliates are not liable for any INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING NEGLIGENCE ARISING FROM PRODUCT LIABILITY AND NEGLIGENT MISREPRESENTATION), ANY LEGAL COSTS ARISING THEREFROM, OR ANY OTHER COSTS OR EXPENSES ARISING OTHERWISE. Even if advised of the possibility of such damages, the disclaimer of liability for damages set forth above is a fundamental element of this Agreement for the use of the Site. This Site and the information contained herein would not be provided without such limitations. The User’s sole remedies in respect of any damages suffered as a result of their use of the Site shall be,
- to immediately discontinue his or her use of it, and
- to recover from SHIFT damages equal to, and not any greater than, any fees accrued and unpaid by the User to SHIFT for use and access to the Site, which damages shall be set-off against such amounts as are owed to SHIFT by the User.
6. Payment of Access Fees
The User shall pay any fees required by SHIFT for access to the Site as SHIFT may post on the Site from time to time, including any fees charged on a “per download”, “per upload” or “per access” basis. SHIFT may require that such fees are to be paid by credit card, PayPal or other electronic payment mechanism prior to the User accessing or using the Site. Alternatively, SHIFT may allow the User to access the Site and send him/her/it an invoice at a later date. Any such invoice shall be paid strictly in accordance with the payments terms therein. If no payment terms are contained in said invoice, then the User shall pay within thirty (30) days of receipt, and interest shall accrue on any unpaid invoices at a rate of 10% per annum, calculated daily without deduction or set-off.
User agrees to indemnify, save and hold SHIFT and its directors, officers, employees, partners, and affiliates harmless from any liability for expenses, losses, costs (including any legal fees on a substantial indemnity basis) as a result of any damages arising out of any demand, claim, action, cause of action, mediation, arbitration or other legal proceeding against SHIFT that occurs as a result of accessing or using the Site and/or the User violating this Agreement.
8. Uploaded Documents
- Prohibited Material – In uploading any materials or content (including any status certificate materials) or sending any requests with the Site, the User shall not, under any circumstances, supply, upload or send messages that,
- are unlawful, harmful, threatening, abusive, harassing, defamatory (either libellous or slanderous), invasive of another’s privacy, pornographic, or is harmful to minors in any way;
- is false, deceptive or misleading;
- infringes any patent, trademark, copyright, industrial design, or other form of intellectual property right of SHIFT or any other person;
- contains personal information except as permitted by the Personal Information and Electronics Documents Act (Canada);
- constitutes unsolicited e-mail, junk mail, spam, or any form of advertising or solicitation for commercial purposes;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- is designed to disrupt the ability of other Users to obtain status certificates or makes disproportionately high use of network resources or infrastructure, or otherwise negatively affect the ability of others to use the Site;
- is in violation of any Canadian or Ontario law, including any statute, regulation, or common law requirement (including such requirements in law and equity); and
- constitutes content or material that is deemed prohibited by SHIFT in its sole and absolute discretion that may be exercised unreasonably at any time.
- Moving, Deleting or Editing Documents – The User acknowledges that SHIFT shall have the right (but not the obligation), in its sole and absolute discretion, to edit, delete or move any documents uploaded to the Site at any time. The User understand that all documents, including any status certificate components, on, transmitted through, or linked from the Site, are the sole responsibility of the person from whom such documents originated and SHIFT shall not be liable for any damages arising from such documents as contemplated by Article 5 (Disclaimer and Limitation of Liability).
9. Prohibited Activity
- Hacking, etc. – Users shall not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any SHIFT server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means.
- Monitoring and Circumventing Site – Users shall not use any “deep-link”, “page-scrape”, “robot”, “spider”, “agent” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. SHIFT reserves the right to bar any such activity.
- Probing, etc. – Users shall not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. Users will not reverse look-up, trace or seek to trace any information on any other User of or visitor to the Site, or any other customer of SHIFT, including any SHIFT account not owned by the User, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than the User’s own information, as provided for by the Site.
- Overloading Site – The User will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure (including the bandwidth capacity) of the Site or SHIFT’s systems or networks, or any systems or networks connected to the Site or to SHIFT.
- Interference – Users shall not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.
- Harassing and Stalking – User also hereby agrees that they shall not use the Site to,
- contact anyone against their will or “stalk” or otherwise harass anyone in any manner; and
- collect personal data about anyone for commercial purposes unrelated to the purpose set out in Article 2, or for unlawful purposes.
- Disguising Messages and Identity – Users shall not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal the User sends to SHIFT or another User on or through the Site, or disguise the origin of any service offered on or through the Site. No User may impersonate any other individual or entity, and no User may fraudulently hold him/herself out as representing another person or entity.
- Unlawful Activity – Users shall not use the Site or any content, status certificate or other document therein for any purpose that is contrary any statute, regulation, by-law, rule, common law principal (whether in law or equity) or other requirement of Ontario law or the laws of Canada, or any purpose prohibited by this Agreement, or to solicit the performance of any such illegal activity or other activity which infringes the rights of SHIFT or others.
10. Personal Information and PIPEDA
In connection with any personal information contained in any portion of the status certificate, any other document uploaded by the User or any other User-supplied content, the User hereby acknowledges that SHIFT constitutes a third-party to whom personal information has been transferred for processing (and for no other purpose) as contemplated in Principle 4.1.3 of Schedule 1 of the Personal Information Protection and Electronic Documents Act (Canada) (“PIPEDA“). The parties hereto acknowledge that SHIFT is not collecting, using or disclosing any such personal information for its own purposes or using any of it in the ordinary course of its business. SHIFT is solely making the Site available so that the User can collect, use and disclose such personal information as permitted by the Condominium Act, 1998 and in accordance with ss. 7(1)(e)(ii), (2)(d) and (3)(i) of PIPEDA.
11. Links to Other Sites
- Links to Merchant Sites – SHIFT may provide links on the Site, or other websites developed and hosted by SHIFT, that allow access to third party merchant (“Merchants“) sites from which the User may obtain information and possibly purchase certain goods or services. The User understands that,
- neither SHIFT nor its affiliates operates or control the products or services offered by Merchants, and such Merchants are responsible for all aspects of order processing, fulfillment, billing and customer service;
- neither SHIFT nor its affiliates is or will be a party to the transactions entered into between Users and Merchants;
- information about and purchase and use of the products or services offered by the Merchants is at the sole risk of User and is without warranties of any kind by SHIFT, express, implied or otherwise including warranties of title, fitness for purpose, merchantability or non-infringement;
- all rules, policies (including privacy policies) and operating procedures of Merchants will apply to Users while on the Merchants’ sites. SHIFT is not responsible for information provided by Users to Merchants. Merchant and SHIFT are independent contractors and neither party has authority to make any representations or commitments on behalf of the other; and
- Under no circumstances is SHIFT or its affiliates liable for any damages arising from the transactions between Users and Merchants or for any information appearing on merchant sites or any other site linked to the SHIFT site. As contemplated in Article 5 (Disclaimer and Limitation of Liability), SHIFT will not be liable to Users for any incidental, special or consequential damages of any kind that may result from access to merchant sites or the use of any products or services offered by merchants.
- Links to Other Sites – This Site may contain links to other websites other than Merchant Sites. SHIFT is not responsible for the content, accuracy, or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by SHIFT. Inclusion of any linked website does not imply approval or endorsement of the linked website by SHIFT. If a User decides to leave Site and access these third party sites, he/she does so at his/her own risk.
12. Governing Law and Jurisdictional Issues
- Governing Law and Disputes – This Agreement shall be treated as though it were executed and performed in Toronto, Ontario, Canada and governed by the laws of Ontario and the laws of Canada as may be applicable herein. All disputes, controversies or claims arising out of in connection with or in relation to this Agreement, including any question regarding its existence or validity shall be submitted to and be subject to the jurisdiction of the courts of the Province of Ontario (including the Supreme Court of Canada), which shall have exclusive jurisdiction in the event of any dispute hereunder. The parties hereby irrevocably submit and attorn to the exclusive jurisdiction of such courts to finally adjudicate or determine any suit, action, or proceedings arising out of or in connection with this Agreement.
- Compliance with Ontario Law – In using the Site, the User hereby agrees to comply with all legislation, regulations, common law requirements (including such requirements in law and equity) as may be applicable and in force pursuant to the laws of Ontario and Canada. Any monies payable pursuant to the terms hereof shall be in Canadian currency.
- Actions Subject To Disclaimer – All actions, applications and other legal proceedings shall be subject to the disclaimers and limitations set forth in Article 5 (Disclaimer and Limitations of Liability).
- Severability and Waiver – Should any part of this Agreement be held invalid, unenforceable or inconsistent with the law applicable to this Agreement, that portion shall be severed from this Agreement and the remaining portions shall remain in full force and effect. Failure of SHIFT to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
- Users Outside Ontario – Unless otherwise specified, the electronic status certificates (including the components thereof), and other materials on the Site are presented solely for the purpose of providing status certificates for condominium units located in Ontario, Canada. This site is controlled and operated by SHIFT from its offices within the Province of Ontario. SHIFT makes no representation that documents, status certificates, or other materials from the Site are appropriate or available for use outside of Ontario. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
13. Interpretation of Agreement
- Entire Agreement – This Agreement constitutes the entire and only agreement between SHIFT and a User, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site, any electronic status certificates derived therefrom, the content, any other goods and services provided by or through the Site, and the subject-matter of this Agreement. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.
- Electronic Form – The electronic form of this Agreement presented to the User when they access the Site shall be the sole true and correct version. SHIFT hereby reserves the right to update and amend this Agreement from time to time. SHIFT will post the latest version of this Agreement on the Site in electronic form.
- Assignment – SHIFT may assign its rights and obligations under this Agreement to any person without notice to the User. No part of this Agreement may be assigned by the User without SHIFT’s written consent.
- Independent Contractor – Each of the parties acknowledge and agree that the relationship created hereby is one of independent contractors and no other, including without limiting the generality of the foregoing, that of partnership or employment. None of the parties shall have the authority to bind the other parties to any contractual or other legal obligations, whether as agent, partner, employee, representative, authorized signing officer or otherwise. None of the parties shall hold themselves out as being an agent, employee or other representative of the other party so as to make said other party vicariously liable for any tort against any other person.