ORDER TERMS AND CONDITIONS
In this document, the term “this Agreement” shall mean the agreement of which this document forms part.
In this Agreement, the following capitalized terms shall have the following meanings:
• Parties means the parties to this Agreement
• BigDawgs means BigDawgs Promotions
• Customer means the party that has entered into this Agreement with BigDawgs
• User Works includes all works delivered by Customer to BigDawgs pursuant to this Agreement for incorporation by BigDawgs into an item to be delivered by BigDawgs to Customer pursuant to this Agreement, including but not limited to documents, data, files, photos, videos, text, etc.
Definitions Incorporated by Reference
Terms defined in this Agreement externally of this document shall have the same meaning within this document.
Representation and Warranty
Customer represents and warrants that
(i) Customer owns and controls all of the rights to the User Works or otherwise has the lawful right to deliver the User Works to BigDawgs for the purposes of this Agreement;
(ii) the content of the User Works is accurate and not misleading
(iii) the use and reproduction of the User Works by BigDawgs for the purposes of this Agreement will not violate any rights of or cause injury to any person or entity nor violate any applicable law
(iv) the User Works do not contain any message, data, files, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
(v) the User Works do not provide instructions for a criminal offense or incite hatred
(vi) the User Works do not contain any viruses, corrupted data or other harmful, disruptive or destructive files
Customer agrees to defend BigDawgs and the present and former directors, officers, employees, agents and other representatives of BigDawgs from and against any and all claims, demands, causes of action and proceedings (including but not limited to legal costs and fees) associated, directly or indirectly, with the incorporation by BigDawgs of the User Works into a product or the delivery of such product by BigDawgs to the Customer or any other person or entity.
Customer agrees to indemnify and hold harmless BigDawgs and the present and former directors, officers, employees, agents and other representatives of BigDawgs from and against any and all claims, demands, causes of action and proceedings (including but not limited to legal costs and fees) associated, directly or indirectly, with a breach by the Customer of the representations and warranties set out in this Agreement.
This Agreement shall be governed by the laws of the Province of Ontario, Canada, without giving effect to principles of conflict of laws. The courts sitting in Ontario, Canada, shall have exclusive jurisdiction to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
Entire Agreement and Waiver
This Agreement contains the complete agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. The failure or delay of BigDawgs to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach.
No amendments or modifications may be made to this Agreement by Customer. Customer acknowledges that this document is a living document, i.e. expected to change, and is capable of incorporation into agreements by, inter alia: acceptance of offers extended by BigDawgs. Accordingly, Customer agrees that, in the event that it enters, in any manner, into a subsequent agreement with BigDawgs, the Included Terms of that subsequent agreement shall apply to this Agreement, notwithstanding that this document has changed in the interim.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
Headings contained in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement.
BigDawgs shall not be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, terrorism, power failures, internet interruption, transportation difficulties or other occurrences which are beyond the reasonable control of BigDawgs. In the event that BigDawgs is prevented or delayed in the performance of its obligations under this Agreement, for reasons beyond its control, such performance shall take place as soon thereafter as is reasonably possible.
Enurement and Assignment
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, permitted assigns and legal representatives, provided, however, the rights and obligations of the Customer hereunder may not be assigned, sublicensed or otherwise transferred, in whole or in part, without the prior written consent of BigDawgs, which consent may be granted or withheld by BigDawgs in its sole and absolute discretion and any purported assignment, sublicense or other transfer, without such prior written consent shall be null and void. This Agreement may be assigned by BigDawgs without notice to or consent of the Customer.
This Agreement has been drawn up in English at the express wish of the parties. Le présent contrat a été rédigé en anglais à la demande expresse des parties.
General Limitation of Liability
BIGDAWGS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THE RELATIONSHIP OF THE PARTIES, THIS AGREEMENT, OR THE NEGOTIATION, BREACH OR TERMINATION OF THIS AGREEMENT INCLUDING WITHOUT LIMITATION, LOST DATA OR LOST PROFITS AND DAMAGES RESULTING FROM INCONVENIENCE OR DELAY, EVEN IF BIGDAWGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The terms of this Agreement are confidential and shall not be disclosed, orally or in writing, by Customer to any third party without the prior written consent of BigDawgs.
General Limitation of Liability
THE TOTAL ACCUMULATED LIABILITY OF BIGDAWGS TO THE CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS, DAMAGES, COSTS OR EXPENSES ASSOCIATED IN ANY WAY WITH THIS AGREEMENT SHALL BE LIMITED TO FEES ACTUALLY PAID BY CUSTOMER HEREUNDER DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LOSS, DAMAGES, COSTS OR EXPENSES BECOME PAYABLE BY BIGDAWGS.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY BIGDAWGS, THE GOODS AND SERVICES PROVIDED BY BIGDAWGS PURSUANT TO THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. BIGDAWGS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.