1. INTRODUCTION
1.1 These terms of use (“Terms of Use”) apply to The Singing Walrus website located at https://thesingingwalrus.com/, https://thesingingwalrus.tv/, and any official social media pages and any other forms of online presence controlled by us (collectively, the “Website”). Please read these Terms of Use carefully before using the Website. These Terms of Use constitute a legal agreement between you and The Singing Walrus Music Production, which is the owner and operator of the Website. By accessing or using this Website or otherwise indicating your consent, you agree to be bound by these Terms of Use and the documents referred to in them. If you do not agree with or accept any of these terms, you should cease using the Website immediately.
1.2 Definitions
(a) “Content” means any text, images, video, audio or other multimedia content, document, data, software or other information or material submitted to, subsisting on or accessible from the Website.
(b) “we”, “us”, “our” or “TSW” means The Singing Walrus Music Production, whose registered office is at 6636 Sumas Drive, Burnaby BC, Canada V5B 2V2.
(c) “you” or “your” means the person accessing or using the Website or its Content.
1.3 Privacy Policy. Where applicable, these Terms of Use incorporate by reference our Privacy Policy, available here, which shall be subject to these Terms of Use in the event of any conflict or inconsistency. By accepting these Terms of Use, you understand and agree that we may collect, use and disclose your personal information in accordance with our Privacy Policy, which is incorporated by reference into these Terms of Use.
1.4 Legal Age. By using the Website, you represent that you are of legal age to enter into these Terms of Use, and if you are not, that you have obtained parental or guardian consent to enter into these Terms of Use.
2. USE OF WEBSITE
2.1 Except as otherwise indicated elsewhere on this Website, this Website is for your personal, informational and non-commercial use only. As a condition of your use of the Website, you agree:
a) any authorized copy that you make of the content from this Website must include the following notice: “© The Singing Walrus Music Production, Burnaby, Canada. All rights reserved. Reproduced pursuant to The Singing Walrus Music Porduction’s Terms of Use”;
b) not to use the Website for any purpose that is unlawful under applicable law, rules and regulations or prohibited by these Terms of Use;
c) not to defame or disparage anybody or make comments of an obscene, derogatory or offensive manner or otherwise use the Website or its Content in a way that brings us or any third party into disrepute or causes us to be liable to any third party;
d) not to reverse engineer, decompile, copy, modify, alter distribute, transmit, license, sublicense, display, revise, perform, transfer, sell or otherwise make available to any third party or otherwise publish, deep-link, create derivative works from or exploit in any way the Website or its content except as permitted by TSW under these Terms of Use or as expressly provided under applicable law;
e) not to use the Website to harvest or otherwise systematically collect by any means any information whatsoever (including without limitation email addresses, passwords or other personal information of other users), and not to make any submission which solicits confidential or personal information from other users;
f) not to modify, circumvent or delete any intellectual property notices contained on the Website and in particular in any digital rights or other security technology embedded or contained within any Website Content;
g) not to: (i) transmit or otherwise make available in connection with the Website any virus, worm, Trojan Horse, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (ii) interfere with or disrupt the operation of the Website or the servers or networks that host the Website; (iii) frame or mirror any part of the Website without prior express written authorization; (iv) restrict or inhibit any other person from using the Website, including by means of hacking or defacing any portion of the Website; and/or (v) use any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, data-mine, or in any way determine, archive, reproduce, or circumvent the navigational structure or presentation of the Website.
h) not to sell, license or exploit for any commercial purposes any use of or access to the Website;
i) not to represent or suggest that we endorse any business, product or service unless we have separately agreed to do so in writing; and
j) that you are solely responsible for all costs and expenses you may incur in relation to your use of the Website.
2.2 We reserve the right to prevent or suspend your access to the Website if you do not comply with any part of these Terms of Use or any applicable law.
3. OWNERSHIP, USE AND INTELLECTUAL PROPERTY RIGHTS
3.1 No Grant. This Website and all intellectual property rights in the Website (including without limitation any Content presented to you on or through the Website) are owned by TSW and/or its licensors. TSW and its licensors reserve all our intellectual property rights (which include without limitation all copyright, trademarks, domain names, design rights, database rights, patents and all other intellectual property rights of any kind) whether registered or unregistered anywhere in the world.
3.2 Access Right. Nothing in these Terms of Use grants you any rights in the Website other than as necessary to enable you to access the Website. TSW grants you a non-exclusive, non-transferable, limited right to access and view Content that we make accessible on this Website, for your personal, informational, non-commercial use, provided you do not copy, download, distribute, modify or delete any copyright, trademark or other proprietary notices that appear in the Content.
3.3 Audio and Video. The audio and video Content contained on this Website are protected under various laws. Such Content is made available for access on this Website for non-commercial purposes only. Any reproduction, publication, further distribution or public exhibition of any of such Content, in whole or in part, is prohibited.
3.4 Trademarks. The names, words, titles, phrases, logos, designs, graphics, icons and trademarks displayed on the Website are trademarks of TSW or third parties. While certain third-party trademarks may be used by TSW under license, the display of such trademarks on the Website does not imply any relationship or license between TSW and the owner of the trademark, nor does it imply that TSW either recommends or endorses the products, services or business processes of the said trade-mark’s owner. Other trademarks and trade names may also be used on this Website. The use or misuse of any trademarks or any other Content on the Website except as provided in these Terms of Use is strictly prohibited. Nothing contained on the Website shall be construed as granting, by implication, estoppel or otherwise, any license or right to use any trademark without our prior written permission or such third party that may own the trademarks displayed on the Website. Your misuse of the trademarks displayed on the Website, or any other content on the Website, except as provided in these Terms of Use, is strictly prohibited.
3.5 Copyright. Except as otherwise specified, the Content contained on this Website is copyrighted © 2022 THE SINGING WALRUS MUSIC PRODUCTION, Burnaby, Canada. All rights reserved. Except as specifically permitted in these Terms of Use, no portion of the information on this Website may be reproduced or distributed in any form or by any means without the prior written permission of TSW. TSW neither warrants nor represents that your use of materials displayed on the Website will not infringe the rights of third parties who are not owned by or affiliated with TSW.
3.6 General. Any unauthorized use of any Content contained on this website may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. Except as expressly authorized in these Terms of Use or in advance by us, you agree not to reproduce, distribute, translate, make available, publish, communicate to the public by telecommunication, modify, rent, lease, loan, sell, or create derivative works based (whether in whole or in part) on, any materials that are made available on or through the Website. The Content is protected by law, including, but not limited to, Canadian copyright law and international treaties, trademarks, trade dress and/or other proprietary rights. The Content is for informational purposes only, and should not be relied upon as accurate, timely or fit for any particular purpose.
4. SUBMITTING INFORMATION TO U
4.1 You may submit to us, whether through the Website or by other means and from time to time, suggestions, ideas, enhancement requests, feedback, recommendations or other information, including but not limited to submissions directed at or for the purpose of improving and enhancing the Website, our Content or our services, but excluding data that you transmit or transfer to us that is expressly governed by a separate agreement that you have entered into with us (“Submissions”).
4.2 You hereby grant to us and our affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, unrestricted, perpetual, irrevocable, fully transferable, assignable and fully sub-licensable right and license, to copy, reproduce, edit, modify, distribute, transmit, translate, display, perform, publish, sell, adapt, create derivative works from, and otherwise use or exploit in any manner your Submissions, for any purpose that we may choose, in our sole discretion, and through any means or media, whether now existing or subsequently developed, and without any compensation or other consideration to you or any third party. You also hereby waive your moral rights in your Submissions. IF YOU DO NOT WISH TO GRANT THE RIGHTS GRANTED IN THIS PARAGRAPH, DO NOT SHARE, SUBMIT OR POST SUBMISSIONS ON OR THROUGH OUR SERVICES. We shall not be subject to any obligation of confidentiality nor be liable for any use and/or disclosure of such Submissions, unless we have separately agreed to be subject to such obligations or be liable for such use and/or disclosure in writing.
4.3 The Website and the other means by which you may communicate with us are not secure means of communication. For that reason, you should not submit or send to us any Submissions that contain patentable ideas or patent applications, advertising or marketing suggestions, (collectively referred to as "Unwanted Submissions"). While we value your feedback, you agree not to submit any Unwanted Submissions. Any Submission (including any Unwanted Submission) made to us is deemed subject to the license granted in section 4.2.
4.4 You represent and warrant that any Submission you make to us is and shall be your own original work and has been lawfully provided to us and that you have all necessary consents to provide this to us. You agree that you waive all moral rights you may have in any such Submissions but that any personal data you supply with your Submissions may, if we choose to do so, be used by us as described in our Privacy Policy.
5. ORDERING, PURCHASES AND SUBSCRIPTIONS
You may be able to purchase products or subscribe to access portions of our Content on the Website and your purchase of any such products or subscription will be governed by this section 5, subject to any additional terms relating to a particular product (“Additional Terms”), which will be made available to you at or before your time of ordering and will prevail over these Terms of Use in the event of a conflict.
By selecting a product, quantity and/or any other features required to be selected by you, providing your provided method of payment, and completing the steps required of you during the check-out process, you can place an order for a product on the Website. You may receive an email confirming that such order has been received by TSW, however: (a) any such order confirmation provided to you by TSW does not constitute an acceptance of your order; and (b) TSW reserves the right, at its sole discretion, to accept or reject any order prior to delivery of that order. Without limiting the foregoing sentence, TSW may reject all or a portion of your order because of the errors in pricing information, or a change in one or all of the products you ordered. Delivery and processing of payment for each product in your order will constitute TSW’s acceptance of that portion of your order.
TSW does not represent or warrant that any products description, image or other such content on the Website is accurate, complete, reliable, or current. If You deem that a product you purchased on the Website is not as described on the Website, your sole recourse is to contact TSW to request a refund, which will be issued at our reasonable discretion. Please direct such inquiries to info@thesingingwalrus.com. To extent legally permissible, the only warranties and conditions provided to you with respect to any particular product are those warranties and conditions described on the Website.
By placing an order for a product on the Website, and specifically by confirming your order at the conclusion of the check-out process, you agree to pay TSW the total amount set-out at the time you confirm your order. All prices quoted on the Website, including the prices for products, subscriptions and shipping, are in US dollars unless otherwise explicitly stated. You are solely responsible for any duties, customs or other charges that may be levied. Your provided method of payment will be charged for your order. TSW reserves the right to reject your order where the price of an ordered product has changed or was misstated on the Website; you may be provided an opportunity to accept such price change and continue with your order. All payments owed by you are due no more than 30 calendar days after delivery of the product and/or order and TSW reserves the right to charge interest on any amounts owed but not paid by you within such time at the lower of 1.5% or the maximum rate permitted by law.
We offer a series of monthly or yearly plans that will enable you to access portions of our Content. Each subscription plan consists of an initial charge followed by recurring periodic charges on a specific term (e.g. monthly, yearly).
Subscription fees. By entering into these Terms of Use, and signing up for a subscription, you agree to and acknowledge that your subscription requires your payment of initial and recurring fees for an indefinite time until you subscription is deactivated by you or us, and you accept responsibility for all recurring charges prior to deactivation, which may be subject to a notice period. TSW may continue to bill you such recurrent fees at the applicable interval (e.g. monthly, yearly) using the account information provided at the time you subscribe without further authorization from you, unless and until you provide advance notice that you wish to terminate this authorization or advise that you wish to change your payment method. Such notice will not affect charges submitted before TSW reasonably could act. If your primary payment method fails, TSW may charge an alternative payment method tied to your account. Auto-renewal. Following your initial subscription period, your subscription will be automatically extended for successive renewal periods of the same length, at the then-current non-promotional subscription rate.
Deactivation. You can deactivate your subscription at any time. You will not be charged for any deactivation. You can re-subscribe at any time following your deactivation, but we reserve the right not to permit re-subscription where we have previously elected to terminate a subscription by you. If you deactivate, you may use your subscription until the end of your then-current subscription term. You will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. To terminate your authorization or change your payment method, log on to your TSW account on our website or email us at info@thesingingwalrus.com.
We reserve the right at our absolute discretion not to renew your subscription at any time without giving any reasons for our decision.
Your account information. All information provided by you to TSW during the subscription/check-out process must be truthful, accurate, current and complete for the purposes for which such information was requested, and you agree to update your information if/as needed to ensure your information remains accurate, current and complete at all times. By providing payment information to TSW, you represent and warrant that you are the authorized owner of such payment method.
Secure your account; sharing account information is prohibited. Your subscription and the associated account is personal to you, and may be used only by you and other members of your immediate family with whom you live. Please immediately notify us if you discover any unauthorized use of your subscription/account or any other breach of security, or any suspicion of such unauthorized use of your subscription/account. You are entirely responsible for maintaining the confidentiality of your subscription credentials, including your username and password, and for any and all activities (including purchases and charges, as applicable) that are conducted through your subscription/account.
We will respect any certain legal rights you have with respect to your order under applicable consumer protection laws. For information on our refund policy please email info@thesingingwalrus.com.
6. LINKED SITES LINKS
6.1 Links to other websites. Any links provided on this Website to third party websites are provided solely for your convenience. When you access a third-party website through this Website, you do so at your own risk. The operation and content of such third-party websites is beyond our control. We do not endorse in any manner whatsoever or accept any responsibility for the content or other material that may be contained on such websites, the use of such websites, or any products or services advertised on or sold through any such website.
6.2 Links from other websites. Other websites may provide links to the Website with or without our authorization. We may have no control over the websites that provide links to the Website, and you acknowledge and agree that we may not endorse such websites and are not responsible for any links from those websites to the Website, for any content, advertising, products, or other materials available on or through such other websites, or for any loss or damages caused by using or relying on any such materials.
6.3 You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to have been caused by or in connection with the use of or inability to use: (a) any websites or resources to which we provide links, or that provide links to the Website; or (b) any content, goods, or services available on or through any such websites or resources. We shall have the right, but not the obligation, at any time and in our sole discretion to block links to the Website through technological or other means, without prior notice. If you have any concerns regarding any outside website linked to or from the Website, please direct them to its owner or operator of the website.
7. WARRANTIES AND LIMITATION OF LIABILITY
7.1 You understand and agree that the Website, any content on the Website, and any services or items found or attained through the Website are provided on an “as is” and “as available” basis, without any warranties or conditions of any kind, either express or implied, including without limitation the implied warranties and conditions of merchantability, fitness for particular purpose, or non-infringement.
7.2 Except as otherwise expressly required by applicable law, TSW makes no representations, warranties, conditions, or other terms (whether express or implied) in relation to the provision of the Website or any content on the Website, including without limitation as to completeness, security, reliability, suitability, accuracy, availability, or currency of the Website or any content on the Website, that the Website or any content on the Website will be free from bugs, errors, or omission, or as to the satisfactory quality or fitness of the Website or any content on the Website for a particular purpose. TSW assumes no obligation to update the Website or any content on the Website. The Website or any content on the Website may be changed without notice to You.
7.3 To the maximum extent permitted by applicable law, we exclude all liability (whether arising in contract, tort, breach of statutory duty, or otherwise), which we may otherwise have to you as a result of any error or inaccuracies in the Website or any Content on the Website, the unavailability of the Website for any reason, or any representation or statement made on or through the Website or any content on the Website.
7.4 We is not responsible for any content on the Website, including User Generated Content, that You may find undesirable or objectionable.
7.5 EXCEPT TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE, OUR AFFILIATES, AGENTS, LICENSORS, SUPPLIERS, OR OUR OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, OR SUCCESSORS BE LIABLE, WHETHER IN TORT, CONTRACT, OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, AGGRAVATED, ECONOMIC, OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF USE, LOST PROFITS, LOST GOODWILL OR BUSINESS REPUTATION, LOST DATA, OR LOST SAVINGS, EVEN IF TSW OR ANY OF OUR LAWFUL AGENTS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM, RESULTING FROM YOUR USE OF OR INABILITY TO USE OR PERFORMANCE OF ANY OF THE SERVICES OF THIS WEBSITE OR ANY CONTENT ON THE WEBSITE, INCLUDING WITHOUT LIMITATION: (A) ANY CHANGES TSW MAY MAKE TO THE WEBSITE OR TO ANY CONTENT ON THE WEBSITE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE WEBSITE OR ANY CONTENT ON THE WEBSITE; (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO SEND, DISPLAY, OR STORE ANY ADS, SUBMISSIONS, OR OTHER COMMUNICATIONS OR DATA MAINTAINED OR TRANSMITTED BY OR THROUGH THE WEBSITE OR ANY CONTENT ON THE WEBSITE, INCLUDING SUBMISSIONS; (C) YOUR FAILURE TO PROVIDE TSW WITH ACCURATE ACCOUNT INFORMATION OR TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, AS APPLICABLE. NOTWITHSTANDING THE FOREGOING, IF TSW IS FOUND TO BE LIABLE FOR ANY REASON, TSW’S TOTAL AND CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY IS LIMITED TO THE GREATER OF: (I) THE TOTAL FEES SUCH PARTY MADE TO TSW IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY; AND (II) $150 CAD.
7.6 We cannot and do not guarantee or warrant that files or data available for downloading on, through, or as a result of the Website will be free of viruses or other destructive code. You are solely and entirely responsible for Your use of the Website and Your computer, Internet, and data security. To the fullest extent provided by law, we will not be liable for any loss or damage caused by denial-of-service attack, distributed denial-of-service attack, overloading, flooding, mailbombing or crashing, viruses, trojan horses, worms, logic bombs, or other technologically harmful materials that may infect Your computer equipment, computer programs, data, or other proprietary material due to Your use of the Website or any services or items found or attained on, through, or as a result of the Website or to Your downloading of any material posted on or through the Website, or on any website linked to the Website.
8. INDEMNIFICATION AND LIMITED WARRANTY
8.1 You agree to defend, indemnify and hold harmless each TSW, our agents, affiliates, partners, and our and their respective directors, officers, employees, agents, service providers, contractors, licensors, suppliers, successors, and assigns from and against any and all claims, actions or demands, including, without limitation, reasonable legal and accounting fees, resulting from or related to: (a) your breach of any of these Terms of Use; (b) your access to or use of the Website or its Content; or (c) your use or reliance on, or publication, communication or distribution of anything on or from the Website. You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
8.2 You expressly acknowledge that we have entered into these Terms of Use, and have and will make the Website and Content available to you in reliance upon the limitations and exclusions of liability and the disclaimers set forth herein, and that the same form an essential basis of the bargain between you and us. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of these Terms of Use.
8.3 We make no representation or warranty that the Website or its Content are appropriate or available for use at any locations outside Canada. If you access this Website from outside Canada, you are responsible for compliance with all applicable laws.
9. TERMINATION OF USE
9.1 Without limiting TSW’s other remedies, you agree that we, in our sole discretion, and to the fullest extent not prohibited under applicable law, may terminate or restrict your use of the Website or any part thereof, at any time and for any reason or no reason, including, without limitation, if we believe that you have violated or acted inconsistently with these Terms of Use. You agree that any termination or restriction of your access to the Website under any provision of these Terms of Use may be effected without prior notice. Upon termination of these Terms of Use, your right to use the Website will immediately cease. To the fullest extent not prohibited under applicable law, we shall not be liable to you or any third party for any termination or restriction of your access to the Website or any part thereof.
10. ACCURACY OF INFORMATION AND AVAILABILITY OF THE WEBSITE
10.1 While we use reasonable efforts to include accurate and up-to-date information on the website, we do not represent, warrant or promise (whether expressly or by implication) that any Content is or remains available, accurate, complete and up to date, free from bugs, errors or omissions or fit or suitable for any purpose. Any reliance you may place on the information on this Website is at your own risk. Nothing in these Terms of Use shall operate to prejudice any mandatory statutory requirement or your statutory rights. Content on the Website is provided for your general information purposes only and to inform you about us and our products and news, features, services and other websites, which may be of interest. It does not constitute technical, financial or legal advice or any other type of advice and should not be relied on for any purposes.
10.2 While we make commercially reasonable efforts to ensure that the Website is available, we do not represent, warrant or guarantee in any way the Website’s continued availability at all times or uninterrupted use by you of the Website. If you are dissatisfied with the Website or any of the Content or with any terms, conditions, rules, policies, guidelines, or practices in operating the Website, your sole and exclusive remedy is to discontinue using the Website.
11. MISCELLANEOUS TERMS
11.1 Effective Date. These Terms of Use are dated [April 29,2022]. No changes to these Terms of Use of use are valid or have any effect unless agreed by us in writing. We reserve the right to vary these Terms of Use of use from time to time. Our new Terms of Use of use will be displayed on the Website and by continuing to use and access the Website following such changes, you agree to be bound by any variation made by us. It is your responsibility to check these Terms of Use from time to time to verify such variations.
11.2 Entire Agreement and Severability of Provisions. These Terms of Use, the Privacy Policy and any applicable Additional Terms constitute the entire agreement with respect to access to and use of this Website and supersede and replace any representation, statement or other communication (whether written or otherwise) made by you or us which is not contained herein. If any provision of these Terms of Use is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect the validity and enforceability of any remaining provisions.
11.3 Governing Law. These Terms of Use of use are governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein and shall be treated in all respects as a British Columbia contract, without regard to principles of conflicts of law that would impose a law of another jurisdiction. For the purpose of all legal proceedings relating to these terns and your use of this Website, the courts of the Province of Ontario shall have jurisdiction to decide any action. The parties agree to attorn and submit to the exclusive jurisdiction of the Courts of the Province of British Columbia.
11.4 Miscellaneous. These Terms of Use do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto. You may not assign, sublicense, or otherwise transfer any or all of your rights or obligations under these Terms of Use without our prior express written consent.
11.5 Waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms of Use operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Any heading, caption, or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
11.6 Severability. Any term of these Terms of Use that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of these Terms of Use, all without affecting the remaining terms of these Terms of Use or affecting the validity or enforceability of such terms in any other jurisdiction. Nothing in these Terms of Use shall operate to prejudice any mandatory statutory requirement or your statutory rights.
11.7 Entire Agreement. These Terms of Use together with the Privacy Policy and other documents referred to herein contain the entire understanding and agreement between Us in relation to Your use of the Website, and supersede and replace all prior and contemporaneous understandings, agreements, representation, statement, or other communication made by you or TSW, whether written or oral, that is not contained herein.
11.8 Notices. The Website is operated by The Singing Walrus. You consent to the exchange of information and documents between Us electronically over the Internet or by e-mail. If You have an account profile with TSW or have purchased a product or service from TSW, we will send You information and documents to the e-mail address in Your account profile on the Website or provided in the course of purchasing such product or service. You will send information and documents to us by email to info@thesingingwalrus.com Every notice that You are required or permitted to provide under these Terms of Use to TSW shall be in writing and provided to info@thesingingwalrus.com. All notices from TSW to you will be displayed on the Website from time to time.
11.9 Force Majeure. TSW shall have no liability to You for any breach of these Terms of Use caused by any event or circumstances beyond our reasonable control including without limitation strikes, lock-outs and other industrial disputes, breakdown of systems or network access, disease, flood, fire, explosion, or accident.
11.10 Assignment. You may not assign, sublicense, or otherwise transfer any of Your rights and obligations in these Terms of Use to any other person.
12. DISPUTE RESOLUTION
12.1 This section applies to all consumers and people who accepted the terms of this agreement. This clause applies only to persons residing outside Quebec, Ontario, or Saskatchewan. Subject to applicable law, any dispute, whether in court or otherwise, will be conducted solely on an individual basis. You agree that you shall not have the right or authority for any dispute to be brought as a class action, or to participate in any class action or other proceeding in which any person acts or proposes to act in a representative capacity. Most of your concerns can be resolved quickly and satisfactorily by sending an email to info@thesingingwalrus.com. If TSW cannot resolve your concern, you and TSW agree to be bound by the procedure set forth in this Section to resolve any and all disputes between us.
12.2 Claims Covered by this section. All disputes, claims or controversies arising out of or relating to this Agreement, by using the Website and/or the Content, or the relationship between you and TSW, including the validity, enforceability, and scope of this section (“Dispute Resolution"), shall be determined exclusively by the procedure outlined in this Section. This includes claims that accrued before you entered into this Agreement. The only Disputes not covered by this Section are claims (i) regarding the infringement, protection or validity of your or TSW's or TSW's licensors' trade secrets, copyright, trademark or patent rights; and (ii) brought in small claims court.
12.3 Informal Negotiations. You and TSW shall first attempt to resolve any Dispute informally for at least 30 days before initiating mediation. The informal negotiations begin upon receipt of written notice from one party to the other ("Notice of Dispute"). The Notice of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. TSW will send its Notice of Dispute to your billing or email address. You will send your Notice of Dispute to: info@thesingingwalrus.com, ATTENTION: Legal Department.
12.4 Within fourteen (14) days after delivery of the notice, you and a representative from TSW who has full authority to settle the dispute, shall meet at mutually acceptable times as often as necessary to make efforts in good faith to resolve the dispute by amicable negotiations within a further thirty (30) day period. The meetings shall be virtual unless both parties mutually agree to meet in person at a mutually acceptable location. The negotiations shall be construed as settlement discussions and shall be confidential and conducted on a “without prejudice” basis.
12.5 Mediation. In the event that informal negotiations fail to resolve the dispute, you and TSW shall jointly select a mediator who shall mediate the dispute for a further thirty (30) day period. The costs of the mediator shall be shared equally by the Parties. In the event that you and TSW cannot mutually agree on a mediator within twenty (20) days or there is no resolution of the dispute within sixty (60) days of selection of a mediator, the Parties will proceed to binding arbitration as follows, and the dispute will be resolved accordingly.
12.6 Binding Arbitration. If you and TSW cannot resolve a Dispute informally or with mediation, you or TSW may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. Arbitration shall be conducted by a single arbitrator. The arbitrator shall be appointed by agreement between the Parties or, in default of agreement, such arbitrator shall be appointed by the mediator jointly selected by the Parties, or alternately, if TSW so elects, by a British Columbia Judge of The British Columbia Supreme Court. The arbitration shall be held in the Province of British Columbia, Canada. The procedure to be followed shall be agreed to by the Parties or, in default of such agreement, determined by the arbitrator. The arbitration will proceed in accordance with the provisions of Arbitration Act, S.B.C 2020, c. 2 (British Columbia). The arbitrator shall have the power to proceed with the arbitration and to deliver his or her decision notwithstanding the default by any Party in respect of any procedural order made by the arbitrator. The decision arrived at by the arbitrator will be final and binding and is not appealable. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. Nothing in this section will prevent either party from seeking injunctive relief from a court of competent jurisdiction. The costs of the arbitrator shall be divided equally between the Parties.
13. CONTACT.
If you have any questions about this Website or the Terms of Use, please email us at info@thesingingwalrus.com
