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1. Warranty Disclaimers.
- 1.1 THE SITE AND ANY PRODUCTS (INCLUDING WITHOUT LIMITATION, ANY WORKS) AND/OR SERVICES PURCHASED VIA THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. ‘‘THE PICTURALIST’’ DOES NOT WARRANT THAT THE SITE WILL OPERATE ERROR-FREE, THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR SAFE FROM SECURITY BREACHES OR THAT ‘‘THE PICTURALIST’’ WILL CORRECT ANY ERRORS ON THE SITE. YOU AGREE THAT ‘‘THE PICTURALIST’’ WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
- 1.2. ‘‘THE PICTURALIST’’ DOES NOT WARRANT, ENDORSE OR GUARANTEE ANY CONTENT, PRODUCT, OR SERVICE THAT APPEARS IN A USER SUBMISSION OR THAT IS FEATURED OR ADVERTISED ON, OR FACILITATED VIA, THE SITE BY A THIRD PARTY. YOUR RELIANCE OR USE OF ANY SUCH CONTENT, PRODUCT OR SERVICE IS ENTIRELY AT YOUR RISK. YOU SPECIFICALLY ACKNOWLEDGE THAT ‘‘THE PICTURALIST’’ SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE CONDUCT (INCLUDING DEFAMATORY, OFFENSIVE, ILLEGAL, OR NEGLIGENT CONDUCT) OF ANY OTHER SITE USER OR THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTION WITH ANY OTHER SITE USERS. IF YOU HAVE A DISPUTE WITH ANY SUCH USER, YOU AGREE THAT ‘‘THE PICTURALIST’’ IS NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. ‘‘THE PICTURALIST’’ RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR ANY SUCH DISPUTE.
- 1.4. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE SITE IS ENTIRELY, OR TO THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK.
2. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL ‘‘THE PICTURALIST’’ OR OUR AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, ASSIGNS AND AGENTS, OR ANY DISTRIBUTOR, BE LIABLE FOR ANY LOSS OF MONEY, GOODWILL, REPUTATION, SPECIAL, INDIRECT, DIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THESE TERMS OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, OR FROM YOUR PURCHASE OF ANY PRODUCTS (INCLUDING WITHOUT LIMITATION, ANY WORKS) AND/OR SERVICES VIA THE SITE, EVEN IF ‘‘THE PICTURALIST’’ OR ANY DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, AND WITHOUT LIMITING THE GENERALITY OF THIS SECTION TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT ‘‘THE PICTURALIST’’’ TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES AND LOSSES UNDER THESE TERMS, OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SITE OR YOUR PURCHASE OF SAID PRODUCTS AND/OR SERVICES, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, TO ‘‘THE PICTURALIST’’ FOR USING THE SITE WITHIN THE THREE (3) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
3. Term and Termination.
These Terms is effective until terminated by ‘‘THE PICTURALIST’’ or you. We reserve the right, at any time, to: (i) discontinue or modify any aspect of the Site; and/or (ii) terminate these Terms and your use of the Site with or without cause, and we shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of these Terms or any subsequent modifications thereto, or become dissatisfied with the Site in any way, your only recourse is to immediately discontinue use of the Site. Upon termination of these Terms, you shall cease all use of the Site. This Section and (Intellectual Property Rights), (License to User Submissions), (Privacy), (Warranty Disclaimers), 2. (Limitation of Liability), 4. (Assignment), 5. (Indemnity) and 6. (General) shall survive any termination of these Terms.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by ‘‘THE PICTURALIST’’ without restriction or notification.
You agree to defend, indemnify and hold harmless ‘‘THE PICTURALIST’’ and our affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney's fees) arising from: (i) your use of, or inability to use, the Site; (ii) your violation of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) your User Submissions and interaction with another Site user or third party via the Site. Without derogating from or excusing your obligations under this section, ‘‘THE PICTURALIST’’ reserves the right (at its own expense), but is not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you. You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval.
These Terms, and the relationship between you and ‘‘THE PICTURALIST’’, shall be governed by and construed in accordance with the laws of the Canada, without regard to its conflict of laws rules. You agree to submit to the personal and exclusive jurisdiction of the federal and states courts located in Montreal, Quebec, Canada, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, ‘‘THE PICTURALIST’’ may seek injunctive relief in any court of competent jurisdiction. The Site Terms shall constitute the entire agreement between you and ‘‘THE PICTURALIST’’ concerning the Site. If any provision of the Site Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Site Terms, which shall remain in full force and effect. No waiver of any term of the Site Terms shall be deemed a further or continuing waiver of such term or any other term, and a party's failure to assert any right or provision under the Site Terms shall not constitute a waiver of such right or provision.
YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.