THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND THE SKY ECC GROUP EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, STABILITY, ACCURACY, OR NONINFRINGEMENT. THE SKY ECC GROUP MAKE NO REPRESENTATION OR WARRANTY THAT THE SECURE SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THE SKY ECC GROUP IS NOT RESPONSIBLE FOR ANY THIRD PARTY CONDUCT OR USER CONTENT ON ITS SERVICES. THE SKY ECC GROUP TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH THE SKY ECC GROUP WILL BE RESPONSIBLE FOR. YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE AND FOREVER DISCHARGE THE SKY ECC GROUP FROM ANY AND ALL CLAIMS, DEMANDS, AND RIGHTS OF ACTION, WHETHER NOW KNOWN OR UNKNOWN, THAT RELATE TO ANY INTERACTIONS WITH, OR ACTS OR OMISSION OF, THE SERVICES AND THE SKY ECC GROUP. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” 13. Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SKY ECC GROUP WILL IN NO EVENT WHATSOEVER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT OR THE SERVICES, PRODUCTS OR THIRD PARTY SITES AND THEIR SERVICES AND PRODUCTS, EVEN IF THE SKY ECC GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES, OR THIRD PARTY SITES AND THEIR PRODUCTS AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE SKY ECC GROUP’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICES AND PRODUCTS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF: (A) FIFTY CANADIAN DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID SKY ECC IN THE PRIOR 12 MONTHS (IF ANY). IN NO EVENT WILL THE SKY ECC GROUP’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. 14. Choice of Law & Exclusive Venue This Agreement shall be construed and governed exclusively by the laws in force in British Columbia and the laws of Canada applicable therein, and the courts of British Columbia (and the Supreme Court of Canada, if necessary), and except as set out in Section 15(b) hereof, shall have exclusive jurisdiction to hear and determine all disputes arising hereunder. Except as provided in Section 15(b), each of the parties hereto irrevocably attorns to the jurisdiction of said courts, consent to the commencement of proceedings in such courts and waive any right to a jury trial. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, any forum non conveniens defence to the maintenance of such action or proceeding in any such court. This provision shall not be construed to affect the rights of a party to this Agreement to enforce a judgment or award outside said province, including the right to record and enforce a judgment or award in any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 15. Resolution of Disputes a. Limitation period. YOU AND SKY ECC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. b. Mandatory Arbitration. Except for any matter that requires equitable or injunctive relief, all disputes arising out of or in connection with this Agreement shall be referred to and finally resolved by a single arbitrator (the “Arbitrator”) under the Arbitration Act of British Columbia. The decision of the Arbitrator on all issues or matters submitted to the Arbitrator for resolution shall be conclusive, final and binding on all of the parties hereto. The arbitrator shall be appointed by agreement between the parties, or in default of agreement, the arbitrator shall be appointed by a judge of the Supreme Court of British Columbia, upon the application of any party to this Agreement. The Arbitrator shall determine who shall bear the costs of arbitration pursuant to this section. The place of the arbitration shall be in Vancouver, British Columbia. c. Class Action Waiver. THE ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING AND MAY NOT AWARD CLASS-WIDE RELIEF. d.
No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to a court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief. 16. Severability If any part of these Terms is found to be unenforceable, then that provision will be modified to the extent necessary to render it enforceable without losing its intent or severed from these Terms if no such modification is possible and not affect the validity or enforceability of the remaining Terms. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. 17. Final Terms All rights not granted to you are reserved by the SKY ECC Group and all intellectual property in the Services is owned by us. These Terms are the final, complete and exclusive Agreement between you and SKY ECC and supersede all prior Agreements between us. If we don’t enforce a part of these Terms, it will not be considered a waiver. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our consent. We may assign the Terms without restriction in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or bankruptcy or other operation of law, without your consent. If we need to contact you about these Terms, you: (1) agree to receive electronic messages from us; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other messages we send to you electronically satisfy all legal requirements as if they were in writing. We agree that these Terms and all related documents are in English.