Access License and Terms of Use

Updated: December 8, 2012

www.totallyADD.com

IMPORTANT: Big Brain Productions Inc. and its subsidiaries (“Big Brain”) operate this website, and other websites that are part of the TotallyADD.com portfolio of websites (collectively, the “Site”) and the services related to or offered on the Site (hereinafter, the “Services”). Big Brain’s Services may include, without limitation, tools, applications, email services, bulletin and message boards, chat areas, news groups, forums, communities, calendars, and downloadable mobile applications related to the Site or provided through the Site. By using the Site, you (referred to herein as the “User”) are agreeing to comply with and be bound by the Access License and Terms of Use. These Terms of Use (“TOU”) govern your use of the Site and Services that are provided by Big Brain. Please read this agreement carefully before accessing or using the Site or Services. Each time you access or use the Site or Services, you agree to be bound by these TOU. If you do not agree to be bound by all of these TOU, you may not access or use the Site or Services. In addition, certain areas of the Site or Services may be subject to additional terms of use that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional terms of use applicable to such areas. In the event that any of the additional terms of use governing such area conflict with these TOU, the additional terms will control.

PLEASE REVIEW THE FOLLOWING TERMS AND CONDITIONS CAREFULLY

1. Ownership and Copyright of Site

1.1. Ownership – Save and except for the access license granted pursuant to Article 2 (Access License), 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 Big Brain. Except as permitted by Section 1.3 below, the User does not acquire ownership rights to any content or document obtained through the Site

1.2. 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 (Access License), is strictly prohibited.

1.3. User Content – Notwithstanding this Article 1, Big Brain 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 (“User Content”). By allowing a User to upload User Content or use the Site’s requesting and/or messaging capability, Big Brain in no way waives any of its proprietary rights to the Site information and materials as contemplated in this Article 1.1 and 1.2 above.

1.4. License in User Content – The User is deemed to grant Big Brain a free, perpetual, non-exclusive, unrestricted, worldwide license to: (a) use, copy, adapt, publicly transmit, perform or display any such User Content, (b) sub-license any or all of these rights to third parties; and (c) exploit any proprietary rights that the User may have in such User Content for its own use so that any right, title or interest in any new content based on User Content shall vest in Big Brain including (without restriction) any patent, trademark or copyright in any jurisdiction.

2. Access License

The User is hereby granted a non-exclusive non-transferable royalty-free license to access the Site for the purpose of: (a) reading, copying and using the publicly-available information on the Site to educate oneself and others about the mental health issues arising out of Attention Deficit Disorder (“ADD”) or Attention Deficit Hyperactivity Disorder (“ADHD”); (b) establishing an account, with login and password, to enable the User to maintain a personal profile, participate in discussion forums, subscribe to newsletters and blogs, all of which are related to ADD and ADHD; and (c) purchase any merchandise made available on the Site by Big Brain, or its affiliates, in accordance with the terms in this Agreement and any additional contractual terms of purchase set out at the Site at the time of sale. The User may not use the Site for any other purpose.

3. General License Limitations

3.1. Educational Use – In the event the that the User copies information from the Site, quotes the Site or otherwise makes any use of any material on the Site for his or her own purposes, the User shall identify Big Brain and the Site as the source of the material. Such information shall only be used for personal and educational purposes, and commercial use of such information is expressly prohibited.

3.2. Account Password and Security – Any account(s) contemplated above require that all Users establish a login and password approved by Big Brain. Users are entirely responsible for keeping their account information confidential. Furthermore, Users are required to notify Big Brain immediately of any unauthorized use or other breach of security. The login and password may only be used by a single User and are non-transferable without Big Brain’s consent. A User may be liable, in accordance with Article 7 (Indemnification), for any losses incurred by Big Brain as a result of failing to comply with this paragraph.

3.3. Account Changes – In addition to any other rights hereby reserved, Big Brain 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 existing account(s) set out above.

3.4. License Revocation – In addition to any other rights hereby reserved, where a User violates the terms of this Agreement Big Brain 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. Deadlines

In addition to any other disclaimer provided herein, Big Brain in no way represents, warrants or guarantees that the Site will be available within any deadline or time period. Furthermore, for greater clarity, Big Brain in no way assumes any obligation on the part of any User to provide access to the Site within any prescribed deadline, and hereby disclaims any liability for any User who acts or fails to act for any reason because such User relied solely on the Site. IF THE SITE IS UNAVAILABLE IT IS THE USER’S SOLE RESPONSIBILITY TO ACCESS THE INFORMATION CONTAINED THEREIN BY SOME OTHER MEANS.

5. Disclaimer and Limitation of Liability

5.1. Disclaimer – The articles, documents, discussion forums and other Site content are made available on an “as is” “where is” basis. All representations warranties, express or implied, are disclaimed and without limiting the foregoing the User expressly acknowledges each of the following:

(a) the information made available on the Site relating to any mental health issues are available for entertainment, information and educational purposes only and DO NOT QUALIFY AS MEDICAL ADVICE. If a User require an individualized diagnosis, he or she should consult his or her own physician;

(b) Big Brain in no way recommends or endorses any research, services, medication, treatments, therapy options or products relating to any mental health issues discussed on the Site, irrespective of whether same are mentioned anywhere on the Site;

(d) opinions and recommendations contained in this Site from a named author, or a person using a discussion forum, are not attributable to Big Brain or its affiliates. As such, the User may be exposed to posted content from other Users that are offensive, indecent or objectionable;

(e) Content from anyone other than Big Brain is for personal use only. Permission to otherwise reprint or electronically reproduce any document in part or in its entirety is expressly prohibited, unless prior written consent is obtained from the owner;

(f) there is no guarantee of privacy for personal information (including medical/health information) uploaded to the Site by the User about themselves. Such information may be included in a User’s personal profile. Users should not upload private information or participate in any Site services or features if they are concerned about their personal privacy; and

(g) with respect of any product or service included on the Site, Big Brain and its affiliates make no representation or warranty of merchantability and/or fitness for a particular purpose.

The User assumes all responsibilities and obligations with respect to any decision to upload or download content from the Site, or when deciding to select and/or rely on any other document or any other Site material, to achieve the User’s intended result.

5.2. Particular Situations – The information within the Site, or available through the Site, may not be appropriate under the circumstances for any particular situation and does not substitute for appropriate professional advice. The specifics of a given situation may require provisions not contemplated in the documents or content of the Site. 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 a particular situation.

5.3. 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.

5.4. Servers in Foreign Jurisdictions – The User hereby acknowledges that Big Brain may host the Site but, in so doing, may utilize servers and hosting services based outside of Ontario or Canada. Any documents or materials uploaded to, or downloaded 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. Big Brain hereby disclaims any and all liability with respect to the enforcement of foreign laws, including the Patriot Act.

5.5. Limitation of Liability – Big Brain and its, shareholders, directors, officers, employees and affiliates have no liability whatsoever for a User’s reliance on the Site or use of any information contained on the Site. In particular, but not as a limitation thereof, Big Brain 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,

i) to immediately discontinue his or her use of it, and

ii) to recover from Big Brain damages equal to, and not any greater than, any fees accrued and unpaid by the User to Big Brain for use and access to the Site (if any are owing), which damages shall be set-off against such amounts as are owed to Big Brain by the User.

6. Accounts, Access Fees, Transactions

6.1 Payment of Access Fees – If applicable, the User shall pay any fees required by Big Brain for access to the Site as Big Brain may post on the Site from time to time, including any fees charged on a “membership”, “per download”, “per upload” or “per access” basis. Big Brain 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, Big Brain 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.

6.2 Accounts, Passwords and Security – If the Site or Services require you to open an account, you must complete the registration process by providing Big Brain with current, complete and accurate information, as prompted by the applicable registration form. You acknowledge that by providing any information to Big Brain which is untrue, inaccurate, not current or incomplete, Big Brain reserves the right to terminate your access and use of the Site and/or the Services. As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree to notify Big Brain immediately of any unauthorized use of your account or any other breach of security. Neither Big Brain nor its Licensors will be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for any losses incurred by Big Brain, its Licensors or another party due to someone else using your account or password.

6.3 Commercial Transactions – Certain products or services may be offered for sale on the Site or through the Services. In the event you wish to purchase or to subscribe for any of these products or services, you will be asked by Big Brain or an authorized third party to supply certain information, including without limitation, your full name, address, telephone number and credit card information as well as any other information that Big Brain may deem as required. You agree to provide us or such third party with the foregoing information as well as any other mandatory information. You agree that any such information provided shall be accurate, complete and current. You agree to comply with the terms and conditions of any agreement that you may enter into governing your purchase of the product or service. You shall be responsible for all charges incurred through your account as well as for paying any applicable taxes. By providing Big Brain with your credit card number and associated payment information, you agree that Big Brain and/or our third party service providers are authorized to immediately invoice your account for all fees and charges due and payable to us as a result of your order, including but not limited to service fees, subscription fees or any other fee or charge associated with your access to the Services and/or purchase of products. In the event that access to an applicable Service requires a recurring payment, you agree that we (or our third party payment service provider) may automatically invoice your account at the beginning of each recurring period. We reserve the right to increase charges and fees, or to institute new charges or fees at any time, upon reasonable advance notice communicated to you through a posting on the applicable Site or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail). You agree to immediately notify Big Brain of any change in your billing address or the credit card used for payment hereunder. Your right to use a paid service or a specific product is conditional upon our receipt of payment. If payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, we reserve the right to either suspend or terminate your access and account. You agree that in the event we are unable to collect the fees you owe us for the products or services specified in your order, we may take any other steps we deem necessary to collect such fees from you, and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, interest, court costs and attorneys’ fees. To review the billing terms on your account, you may email customersupport@totallyadd.com or to terminate a subscription service call 1-855-428-3233, Monday through Friday, 9 a.m. to 4 p.m. Eastern Standard Time (EST).

7. Indemnification

User agrees to indemnify, save and hold Big Brain 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 Big Brain that occurs as a result of accessing or using the Site and/or the User violating this Agreement.

8. Uploaded Documents

8.1. Prohibited Material – In uploading any materials or content or sending any requests with the Site, the User shall not, under any circumstances, supply, upload or send messages that,

(a) are unlawful, harmful, threatening, abusive, harassing, defamatory (either libelous or slanderous), invasive of another’s privacy, pornographic, or is harmful to minors in any way. Despite this paragraph, the User acknowledges that Big Brain does not pre-screen or otherwise censor any content from other Users on the Site;

(b) is false, deceptive or misleading;

(c) infringes any patent, trademark, copyright, industrial design, or other form of intellectual property right of Big Brain or any other person;

(d) contains personal information except as permitted by the Personal Information and Electronics Documents Act (Canada);

(e) constitutes unsolicited e-mail, junk mail, spam, or any form of advertising or solicitation for commercial purposes;

(f) 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;

(g) is designed to disrupt the ability of other Users to use the Site or makes disproportionately high use of network resources or infrastructure, or otherwise negatively affect the ability of others to use the Site;

(h) is in violation of any Canadian or Ontario law not already mentioned above, including any statute, regulation, or common law requirement whether in law or equity; and

(i) constitutes content or material that is deemed prohibited by Big Brain in its sole and absolute discretion that may be exercised unreasonably at any time.

8.2. Moving, Deleting or Editing Documents – The User acknowledges that Big Brain 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 on, transmitted through, or linked from the Site, are the sole responsibility of the person from whom such documents originated and Big Brain shall not be liable for any damages arising from such documents as contemplated by Article 5 (Disclaimer and Limitation of Liability).

9. Prohibited Activity

9.1. 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 Big Brain server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means.

9.2. 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. Big Brain reserves the right to bar any such activity.

9.3. 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 to its source any information on any other user of or visitor to the Site, or any client or customer of Big Brain, 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.

9.4. 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 Big Brain’s systems or networks, or any systems or networks connected to the Site or to Big Brain.

9.5. 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.

9.6. Harassing and Stalking – User also hereby agrees that they shall not use the Site to,

(a) contact anyone against their will or “stalk” or otherwise harass anyone in any manner; and

(b) collect personal data about anyone for commercial purposes unrelated to the purpose set out in Article 2 (Access License) if any, or for any unlawful purposes.

9.7. 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 Big Brain 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.

9.8. Unlawful Activity – Users shall not use the Site or any content 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 Big Brain or others.

9.9. Code of Honour – In addition to the requirements set out in this Article 9 (Prohibited Activity), the User also agrees to comply with the Members Code of Honour and any Codes of Conduct or other rules that Big Brain may set out on the Site at any time from time to time.

10. Social Networking, Chat Rooms and Posting Guidelines

Big Brain hosts social networking, chats and other public forums on its Site and through the Services. Social networking, chats and other public forums are intended to serve as discussion centers for users and subscribers of the Site. These are public forums and any information that you post on the Site or through the Services may be seen by anyone on the Internet. Any user will have the ability to edit or delete their own posts after posting. When posting information on the Site or through the Services, use good taste when discussing sensitive topics. Both users and moderators are required to treat others with respect and honesty. Be fair and informative. Post honest and valuable information and don’t post rumors or negative opinions that are not supported by facts. Unless the information in your post arises directly from your personal experience, references to any health-related or medical information you provide must be included in your post.

In addition to the prohibited activities described above, when posting information and media on the Site or through the Services you must not:

Post anything that interferes with or disrupts the Site or the operation thereof, including files that contain malicious code, viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer, network or the Site;
Post statements or materials that are libelous or defame, harass, abuse, stalk, threaten, intimidate or in any way infringe on the rights of others;
Post statements or materials that violate other contractual or fiduciary rights, duties or agreements;
Post or upload personal information, pictures, videos or any other media of another person without their express permission;
Delete or revise any material posted by any other person or entity;
Post statements or materials that are bigoted, hateful, racially offensive, vulgar, obscene, pornographic, profane, or otherwise objectionable, including language or images that typically would not be considered socially or professionally responsible or appropriate in person;
Post statements or materials that encourage criminal conduct or that would give rise to civil liability or otherwise violate any law or regulation in any jurisdiction;
Post statements or materials that in any way harm minors;
Post statements or materials that impersonate any other person or entity, whether actual or fictitious, including, without limitation, employees and representatives of Big Brain;
Post statements or materials that misrepresent your affiliation with any entity and/or Big Brain;
Post anything that violates the privacy or publicity rights of any other person, including, without limitation, posting any personal identifying information of another individual, including, without limitation, addresses, phone numbers, email addresses, Social Insurance/Security numbers, credit card numbers or any trade secrets or information for which you have any obligation of confidentiality;
Post statements or materials that constitute junk mail, spam or unauthorized advertising or promotional materials, including, without limitation, links to commercial products or services or any political campaigning;
Post material that in the sole judgment of Big Brain is objectionable or restricts or inhibits any person or entity from using or enjoying any interactive features or other portions of the Site, or which may expose Big Brain or its users to harm or liability of any nature; or
Post material that infringes, or that may infringe, any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, or that you otherwise do not have the right to make available, without the express permission of the owner of the copyright, trademark or other proprietary right. Big Brain does not have any express burden of responsibility to provide any user with indications, markings or anything else that may aid any user in determining whether the material in question is copyrighted or trademarked. Users shall be solely liable for any damage resulting for infringements of copyrights, trademarks, proprietary rights or any other harm resulting from such submission.

Any user failing to comply with these guidelines may be expelled from and refused continued access to the social networking, chats or other public forums in the future. Big Brain or its designated agents may remove or alter any user-created content at any time for any reason. Materials posted and/or uploaded to the various public forums may be subject to size and usage limitations. You are responsible for adhering to such limitations. Big Brain and its Licensors expressly disclaim all responsibility and endorsement and make no representation as to the validity of any opinion, advice, information or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will Big Brain, its Licensors, or our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on information obtained through these forums. The opinions expressed in these forums are solely the opinions of the participants, and do not reflect the opinions of Big Brain, its Licensors or any of their subsidiaries or affiliates. Big Brain and its Licensors have no obligation whatsoever to monitor any of the content or postings on the social network, chat rooms or other public forums. However, you acknowledge and agree that we reserve the right to monitor the same at our sole discretion. Big Brain employees typically moderate discussions on a daily basis. Unless otherwise stated, these moderators are not medical professionals and should not be construed as such. Our moderators reserve the right to alter, edit, refuse to post or remove any postings or content, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our clients, sponsors, users and visitors. In addition, Big Brain and it’s moderators reserve the right to contact users to inform them of policies, hide users’ posts or delete users’ accounts without warning or notice in advance, for any reason, including but not limited to the violation of these Terms. By sending or transmitting to us content, images, video, audio files, creative suggestions, ideas, notes, concepts, information or other materials (collectively, “Submission Materials”), or by posting such Submission Materials on the Sites, you hereby grant to us and our designees a worldwide, non-exclusive, sublicenseable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, modify, create derivative works of, publicly perform, publicly display, digitally perform, sell, offer for sale and import such Submission Materials in any media now known or hereafter devised, for any purpose whatsoever, commercial or otherwise, without compensation to you. The foregoing license to Big Brain shall be fully paid-up and royalty free. You represent and warrant that any person or entity named or pictured in such Submission Material has provided any necessary licenses, rights or authorizations to allow Big Brain’s use of such Submission Materials in accordance with such license. None of the Submission Materials disclosed or posted via message boards, chats or other public forums shall be subject to any obligation, whether of confidentiality, attribution or otherwise.

11. Personal Information in User Content

11.1. PIPEDA – In connection with any personal information contained in any other document uploaded by the User or any other User Content, the User hereby acknowledges that Big Brain 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”). Except as otherwise expressly set out in the Privacy Policy on the Site, the parties hereto acknowledge that Big Brain 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.

11.2. PHIPA – The User acknowledges that Big Brain and its affiliates are not “health information custodians” as that term is used in the Personal Health Information Protection Act (“PHIPA”). The User further acknowledges that PHIPA does not apply with respect to any User Content consisting of health information.

12. Links to Other Sites

12.1. Links to Merchant Sites – Big Brain may provide links on the Site, or other websites developed and hosted by Big Brain, 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,

(a) neither Big Brain 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;

(b) neither Big Brain nor its affiliates is or will be a party to the transactions entered into between Users and Merchants;

(c) 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 Big Brain, express, implied or otherwise including warranties of title, fitness for purpose, merchantability or non-infringement;

(d) all rules, policies (including privacy policies) and operating procedures of Merchants will apply to Users while on the Merchants’ sites. Big Brain is not responsible for information provided by Users to Merchants. Merchant and Big Brain are independent contractors and neither party has authority to make any representations or commitments on behalf of the other; and

(e) Under no circumstances is Big Brain 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 merchant. As contemplated in Article 5 (Disclaimer and Limitation of Liability), Big Brain 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.

12.2. Links to Other Sites – This Site may contain links to other websites other than Merchant Sites. Big Brain 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 Big Brain. Inclusion of any linked website does not imply approval or endorsement of the linked website by Big Brain. If a User decides to leave Site and access these third party sites, he/she does so at his/her own risk.

13. Governing Law and Jurisdictional Issues

13.1. 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.

13.2. 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 (if any) shall be in Canadian currency.

12.3. 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 Limitation of Liability).

13.4. 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 Big Brain to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.

12.5. Users Outside Ontario – This site is controlled and operated by Big Brain from its offices within the Province of Ontario. Big Brain makes no representation that documents, 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

13.1. Entire Agreement – This Agreement constitutes the entire and only agreement between Big Brain and a User, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.

13.2. 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. Big Brain hereby reserves the right to update and amend this Agreement from time to time. Big Brain will post the latest version of this Agreement on the Site in electronic form.

13.3. Assignment – Big Brain 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 Big Brain’s written consent.

13.4. 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. This Access License and Terms of Use are made as of November 26, 2009 at 12:00 PM EST.

14. Disclaimer of Warranties – THE SITE AND THE SERVICES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITE AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BIG BRAIN, ITS LICENSORS AND THEIR AFFILIATES, SUPPLIERS, AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE SITE AND/OR SERVICES AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE; (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE; (iii) THAT DEFECTS WILL BE CORRECTED; OR (iv) THAT ANY SOFTWARE, SERVICES, SITES OR SERVER(S) ON WHICH THE SITES OR SERVICES ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITES AND THE SERVICES AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITES AND SERVICES ARE ENTIRELY AT YOUR OWN RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCTS OR SERVICES SOLD OR ADVERTISED HEREIN OR ABOUT THE SATISFACTION OF GOVERNMENT REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS WITH REGARD TO THE CONTENT CONTAINED ON THE SITE OR THROUGH THE SERVICES. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY TREATMENT, ACTION OR APPLICATION OF MEDICINE, MEDICATION OR THE INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE SITE OR THE SERVICES.

15. Updates.

We may modify these TOU at any time, as we deem appropriate. If you disagree with the changes to the TOU, you must discontinue your use of the Sites and Services, and if you have registered as a member, cancel your registration. Your continued access or use of any of the Sites or Services following such notice signifies your acceptance of the modified TOU. It is your responsibility to review the TOU regularly to be aware of such modifications. We reserve the right to modify or discontinue the Sites or Services with or without notice. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Sites or Services. If you object to any such changes, your sole recourse will be to cease access to the Sites or Services. Continued access to the Sites or Services following notice of any such changes will indicate your acknowledgement of such changes and acceptance of the Sites or Services as so modified and your use of new Services will be governed by these TOU.