Last Updated: 10/04/2022

Whitesmiths Tangara Terms of Service

Please read these Terms of Service ("Terms", "Terms of Service") carefully before using the Tangara website and the Tangara  Mobile App  mobile application (the "Service"). This Terms of Service and Privacy Policy, along with any necessary Exhibits, Attachments and Schedules collectively forms our agreement (the “Agreement”) and governs your access to, and use of, the websites, services, applications and integrations (collectively, the “Services”) which are owned, operated or provided by or on behalf of Whitesmiths Pty Ltd and Whitesmiths Group Pty Ltd. (“Whitesmiths”, "us", "we", or "our" ).

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.

By accessing or using the Tangara Services (as defined below) you agree to be bound by the following terms and conditions (“Terms of Service”). You must read, agree to and accept all of the terms and conditions contained in the Terms of Service and Privacy Policy. If you disagree with any part of the terms then you may not access the Service.

As used in this Agreement, “you” and “your” refers to you, the person accessing the Services; “we” means (and “us”, “our”, “ours” and “ourselves” refer to) Whitesmiths; and “party” or “parties” refers to both you and us. The effective date of this Agreement is when you accept it, in accordance with the terms and conditions that are set out below.

IMPORTANT! YOUR ACCESS TO AND USE OF THE SERVICES IS SUBJECT TO LEGALLY BINDING TERMS AND CONDITIONS. PLEASE CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS BEFORE YOU PROCEED. ACCESSING OR USING THE SERVICES IS THE EQUIVALENT OF YOUR SIGNATURE AND INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND THAT YOU INTEND TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT USE THE SERVICES.

You can view, print, download or save this Agreement at any time, under the “Terms of Service” link that appears on our website.

We reserve the right to change these terms and conditions at any time without notice, by updating this Agreement, and such changes will be effective as of the date these updates (or an updated version of this Agreement) is posted to our website. We may provide notice to you of material revisions by means of a general notice on our website. Your continued use of the Services after such revisions are posted will signify your agreement to these revised terms. Therefore, you should visit this page periodically to review this Agreement.

Definitions

When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

Account: means any accounts or instances created by or on behalf of You for access and use of the Services. You may have multiple Subscriptions which may be subject to separate and distinct Plans. For the avoidance of doubt, reference to an Account herein refers to Your live account where the live account has been activated.

Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby "control" (including, with correlative meaning, the terms "controlled by" and "under common control") means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.

Applicable Data Protection Law: means all laws and regulations, including laws and regulations of Australia, the United States, European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under this Agreement.

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by Us to You or Users through the Services or otherwise.

Personal Data: means data forming part of the Service Data and relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into the possession of the data controller or such other similar term as defined under Applicable Data Protection Law.

Pricing Agreement: means a pricing agreement, exhibit, attachment or an order form referencing this Agreement and executed or approved by You and Us with respect to Your Subscription, which agreement may detail, among other things, the Plan applicable to a Subscription, the associated Subscription Fees and other details of the Subscription.

Privacy Policy: means Our privacy notice at https://whitesmiths.com/privacy-policy  as updated periodically and which is incorporated into these Terms by reference.

Process/Processing: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Services:  means Our mobile platform and related products and services that You subscribe to, and/or any new services or features that We may introduce as a Service to which You may subscribe to, and any Updates to the Services, including individually and collectively, any software and Documentation.

Service Data: means all electronic data, text, messages or other materials, including Registration Data, Personal Data of Users submitted to the Services through an Account in connection with Your use of the Services.

Subscription: means Your subscription to the Services through a Plan of Your choice for Your access and use of an Account.

User: means those individuals You authorize as users within an Account to use the Services by way of designated login credentials.

Websites: means the websites that We operate.

Our Services

We develop and make available to you mobile apps designed for field-based workers requiring access to data and functions aiding the fulfillment of their tasks.  The list of apps we offer is always changing - be sure to check out our list of offerings https://whitesmiths.com/mobile

The specifics of each aspect of the Services (including technical details, support and pricing information) are posted on our website, as we may amend them from time to time in respect of the Services.

We take reasonable efforts to explain each Service’s features to you on our website, but we cannot guarantee a Service will look or perform exactly like it appears on the website or in other materials. If you have any questions about any terms or details of any of our Services, please reach out to us at the contact information below.

Whitesmiths shall use commercially reasonable efforts to provide technical support for Services. We are not responsible for providing technical support for any apps, products, or services provided to you by third parties.

Subscription, Billing and Payments

All Services are provided on a per user basis, meaning you will have to purchase Services on an individual user basis on a Plan unless otherwise specified in an Attachment or Exhibit to the Agreement.

Subscription License Fees.  When You are on a paying Plan, You shall be charged a fee based on the Plan You choose for the Services ("Subscription Fees"). Unless specified otherwise herein or in a Pricing Agreement, the Subscription Fees are payable in full and in advance until Your Subscription is terminated in accordance with Section: Term, Termination and Suspension.

Payment.  You agree to pay the Subscription Fees through a payment method acceptable to Us. You hereby authorize Us and/or Our authorized agents, as applicable, to bill You in accordance with Your Plan and/or Pricing Agreement for Your Subscription (and any renewal thereof). Unless otherwise stated in a Pricing Agreement, Your payment is due in full immediately upon each due date with respect to Your Subscription. You must notify Us of any change in Your payment account information, either by updating Your Account or via e-mail to accounting @whitesmiths.com .

Renewal.  For any Renewal Term (as defined below), unless otherwise agreed to in a Pricing Agreement, We reserve the right to change the subscription fees and billing methods upon a thirty (30) day notice. For existing Subscriptions for which the Subscription Fees has been already received by Us, We will implement the price changes during the next Renewal Term.

Refunds.  Unless otherwise specified in these Terms or Pricing Agreement, all Subscription Fees are non-refundable. We do not provide refunds or credits for any partial use or non-use of the Services.

Taxes.  Unless otherwise specified in a Pricing Agreement, the Subscription Fees do not include any taxes, duties, fees or other amounts assessed or imposed by any government authority, for which You are responsible except for taxes imposed on Our income. You agree to pay or reimburse Us for all such amounts upon demand or provide evidence of payment or exemption.

Chargeback Costs.  You agree to indemnify and hold harmless Whitesmiths and its officers, directors, subsidiaries, affiliates, employees, representatives, agents, licensors and their respective successors and assigns (collectively, its “Others”), against any chargeback costs (plus any taxes or related fees) which we are required to pay, as a result of a payment dispute with you or in relation to a payment you have made to us for the Services.

Delayed Payments/Non-payment of Subscription Fees.  Where We do not receive payment towards the Subscription Fees within the due date for a Subscription, You shall be notified of such non-payment. We must receive payments within a maximum of thirty (30) days from the date of Our notice. If We do not receive payment within the above mentioned time period, in addition to Our right to other remedies available under law, We may (i) charge an interest for late payment (a) @ 5% per month on the outstanding balance where the Subscription Fees is payable monthly; or (b) @ 5% per month on the outstanding balance where the Subscription Fees is payable annually; and/or (ii) suspend Your access to and use of the Services until We receive Your payment towards the outstanding Subscription Fees; and/or (iii) terminate the Subscription in accordance with the Term, Termination and Suspension section.

All payments are made payable in AUD (Australian Dollars).

Term, Termination and Suspension

Term.  Unless otherwise specified in a Pricing Agreement, a Subscription is valid for a period of one (1) month from the date of Your Subscription ("Initial Term") and shall renew automatically for a term equivalent in length to the then expiring term ("Renewal Term") unless terminated in accordance with this Agreement. For the purposes of this Agreement, "Term" shall mean the Initial Term and any Renewal Terms.

Termination by You.  You may terminate a Subscription at any time by raising a request for cancellation of Your Subscription or by e-mailing Us at accounting@whitesmiths.com and ceasing all use of the Services.

Suspension and Termination by Us.  In the event of any actual or threatened breach of this Agreement by You (including non-payment of Subscription Fees), We may immediately suspend all or part of Your Subscription(s). We may terminate this Agreement, including Your Subscription(s), if You have breached any of these terms of this Agreement and if that breach can be cured, You fail to cure that breach within fifteen (15) days after receiving written notice of that breach from Us ("Your Cure Period").

Consequences of termination of a Subscription.

1.           Consequences.  We shall not be liable to You or any other third party for suspension or termination of Your Subscription or Your access to and use of the Services, including any destruction of Service Data, if such suspension or termination is in accordance with this Agreement. Upon any termination of a Subscription, all rights, including the right to access and use the Services granted to You will immediately cease and payment methods associated with End-Customers shall not be charged with immediate effect. You shall immediately destroy (or, at Our request, return) Our Confidential Information in Your possession or control.

2.           Data Export.  Following termination of a Subscription, We will retain that Account's Service Data for one hundred and twenty (120) days from such date of termination ("Data Retention Period") beyond which, We will have no obligation to maintain or provide You, Users and End-Customers access to Service Data. Thereafter, unless legally prohibited, We reserve the right to destroy all Service Data in Our possession in the normal course of Our operations in accordance with the Privacy Notice. You agree that You are solely responsible for exporting Service Data prior to termination of a Subscription, and if You require assistance for exporting Service Data during the Data Retention Period, You may be required to pay a separate fee to Us.

3.       Subscription Fees.  Unless waived by Us in writing or where the total Subscription Fees has already been prepaid, if a Subscription is terminated in accordance with Sections Termination by You  or Suspension and Termination by Us  of this Agreement, in addition to other amounts You may owe Us, You must immediately pay all unpaid Subscription Fees for the Term accrued through and including Your Cure Period. The sole exclusion to this payment obligation is when You terminate a Subscription as a result of a material breach of this Agreement by Us (provided that You provide notice of such breach to Us and afford Us not less than fifteen (15) days ("Our Cure Period") to reasonably cure such breach), in which case, You are eligible to receive a refund of any unused Subscription Fees prepaid by You for Services not rendered from the date of such termination.

Right to use the Services and Intellectual Property

Subject to your compliance with the terms and conditions of this Agreement, we hereby grant to you a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, subscription-based, revocable right to install and use the Services. This right terminates upon termination of this Agreement or any other agreements previously provided to you by us, as may be applicable. Any and all rights not expressly granted to you are reserved by us, and this Agreement does not confer to you a proprietary interest in any Services.

All materials displayed or otherwise accessible on or through the Services, including source code, (collectively, “Our Content”), and the selection and arrangement of Our Content, are protected by copyright, pursuant to US copyright laws, international conventions and other copyright laws. We either own the intellectual property rights, including but not limited to copyright, or have acquired the necessary rights or licences, in Our Content. Portions of Our Content may have been licensed to us or published on our website, or as part of our Services, by third parties. Any reproduction, modification, publication, transmission, transfer, sale, distribution, display or exploitation of the Services or Our Content, whether in whole or in part, without our express written permission, is strictly prohibited.

Certain words, phrases, names, designs or logos made available on or through the Services may constitute trademarks, service marks, or trade names that are owned by us or others. The display of such marks on or through the Services does not imply that you have been granted a licence by us or others with respect to them.

Subject to the terms and conditions of this Agreement, you are granted a limited personal, non-exclusive, non-transferable, revocable license to access, view and use our Service, including a limited license to download, print and store single copies of Our Content (other than source code) from our website, for your personal use, provided that you maintain all copyright and other notices contained in such items and you do not (and do not allow any third party to) copy, modify, create derivative works of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, in our website. Our Content must not be reproduced, republished, or disseminated in any manner or form without our prior written consent or the prior written consent of the third parties from which such information was collected, as the case may be.

Continued Use, Updates and Upgrades

We reserve the right to modify, update, remove or disable access to any Services, without notice to you, and we will not be liable to you if we exercise those rights. When you purchase a particular Service, you are purchasing the right to use that Service as of the time you purchase it. You are not paying for the right to any updates, upgrades or future versions of the Services, though we may make such updates, upgrades or future versions available to you, in our sole discretion. We do not warrant, represent or undertake to provide any updates and in no event shall we be liable to you for our failure to do so.

Third Party Services and Content

We are not a party to any relationship between you and any third party, including, but not limited to, you and your customers (your “Customers”), and as such, we have no responsibility to you as regards to your relationships with these third parties. You acknowledge and agree that you have no recourse against us for any acts or omissions of third parties, and your interaction with third parties is entirely at your own risk.

Your use of the Services may rely on services and products which are offered by third parties (“Third Party Services”). We have no responsibility to you for anything third parties do (or fail to do) and we provide no warranties or guarantees about third parties or Third Party Services. Your use of Third Party Services may be subject to specific terms and conditions which are set by those third parties.

We may make third parties’ content and materials (“Third Party Content”) available to you through our websites, such as reviews. Our making available of such Third Party Content does not constitute an endorsement or recommendation, and we are not responsible for any reliance you may place on Third Party Content. We make no warranties or representations as to any Third Party Content and we shall have no liability for it. Any opinions or statements made by third parties are those of such third parties, and do not necessarily state or reflect our views.

You agree that we will have no liability to you with respect to the acts, omissions, errors, representations, warranties, breaches or negligence for any damages or expenses resulting in any manner from your interactions with any: a) third parties; b) Third Party Services; or c) Third Party Content, and we are not obliged to become involved in any disputes you may have with any third parties. If you have a dispute with any third parties, you release Whitesmiths and its Officers from any direct, indirect, incidental, special, consequential, exemplary or other damages whatsoever, including, without limitation, any direct, indirect, incidental, special, consequential, exemplary or other damages, arising out of or in any way related to such disputes and/or our Services.

Disclaimer

The Services and the materials on our website are provided on an as-is, as-available, basis and without warranties of any kind, expressed or implied. By accessing and using the Services and the materials on our website, you acknowledge and agree that such access and use is entirely at your own risk. We make no representation or warranties regarding the use or the results of the Services or the materials on our website (whether provided directly by us or through third parties or our affiliates), including, without limitation, that the Services or materials on our website will be accurate, complete, correct, timely or suitable, that the Services and the materials on our website are of merchantable quality or fit for a particular purpose, that the Services and the materials on our website will be available or uninterrupted at all times or at any particular time, or that the Services and the materials on our website will be free from errors, viruses or other harmful components. To the fullest extent permissible pursuant to applicable law, we disclaim all warranties, express or implied, including, but not limited to, warranties and conditions regarding the use of the Services and the materials on our website, including all implied warranties or conditions of merchantability, fitness for a particular purpose or non-infringement, whether express or implied, or arising from a course of dealing, usage or trade practice. We are not responsible for what others do with any materials or information you choose to share using the Services.

Limitation of Liability

THIS SECTION LIMITS OUR LIABILITY TO YOU. PLEASE READ IT CAREFULLY.

To the maximum extent permitted by law, under no circumstances shall you be entitled to recover any special, incidental, consequential or indirect damages from Whitesmiths or its Officers, which you may suffer arising out of, caused by, or in connection with, the use, or inability to use, the Services, any inaccuracy, incompleteness or incorrectness contained in the materials displayed, accessed or used as part of the Services, or your reliance or acting upon the materials used as part of the Services, including any loss or damages in the nature of or relating to lost business, lost savings, lost data and/or profits, regardless of the cause and whether arising in contract, tort, in equity, at law or otherwise, and whether or not Whitesmiths has or had been advised of the possibility of such losses or damages. Unless otherwise agreed to by you and Whitesmiths in writing, under no circumstances shall the liability of Whitesmiths and its Others to you, for damages or losses suffered by you arising out of, related to or caused by, the Services, or the use thereof, exceed a maximum equal to the amount actually paid by you for the Services in the three (3) months’ period preceding such losses or damages. You acknowledge and agree that the payments paid by you for the Services reflect the allocation of risk set forth in this Agreement and that Whitesmiths would not enter into this Agreement without these limitations on liability.

You agree to release, remise and acquit Whitesmiths and its Officers from any claims, actions, demands, costs and expenses of any kind whatsoever, whether in contract, negligence or tort, at law or in equity, or by statute or otherwise, howsoever caused, with respect to your use of, or our operation of, the Services, except as may be set out in the preceding paragraph.

Indemnity

You agree to indemnify and hold harmless Whitesmiths and its Officers from any claim or demand (including reasonable legal fees, expert fees and other reasonable litigation costs), arising from, incurred as a result of, or in any manner related to, your use of the Services, including, but not limited to: a) your breach of this Agreement; b) any misrepresentation made by you to any third party; c) any third party claim in respect of the Services involving or related to your or your Customers’ use of the Services; d) your ability or your Customers’ ability to access and use the Services; or e) your violation of applicable laws, rules or regulations or the rights of any third party.

Privacy Policy

We are committed to protecting your privacy, in accordance with the terms and conditions of the Whitesmiths Privacy Policy. By accessing and continuing to use the Services, including without limitation by registering or creating an account or profile with Whitesmiths, and by providing personally identifiable information or personal data to Whitesmiths through the Services, you are acknowledging that you have read our Privacy Policy (which sets out how we process personal data, and our legal basis for processing personal data) and that you agree and consent to us processing your personal data to provide the Services to you in accordance with this Agreement and our Privacy Policy. Please ensure that you have reviewed and understand our Privacy Policy before purchasing or subscribing for any Services from us or providing personal data to us.

Confidentiality

We will not sell, share, or rent your personal data to or with any third party.

Your records are regarded as confidential and therefore will not be divulged to any unaffiliated third party, other than our payment gateway in order to process your payment(s), and as is otherwise necessary for the delivery of the Services and/or if legally required to do so, to the appropriate authorities. Further information on the collection, use, retention, and disclosure of personal data is available in our Privacy Policy.

Your Account

You may be required, when you use certain features of the Services, to create an account with us, including a username and password. If we determine the username is in use by someone else or it is otherwise offensive, we may refuse to allow you, in our sole discretion, to use the chosen username. In addition, you are responsible for maintaining the confidentiality of your password and you are responsible for all uses of your username, whether or not you authorize such uses. You agree to notify us immediately of any actual or suspected loss, theft or unauthorized use of your username and password, or your account. We are not responsible for verifying your identity or the identity of anyone who uses your account, and we are not liable for any loss or damage as a result of your failure to protect your password, or as a result of unauthorized use of your username and/or password. You agree that any registration information you provide will be true and accurate, and that you will update it, as is necessary to keep it current. We reserve the right to automatically log you out of your account after such a period of inactivity as we determine is reasonable, in the circumstances.

We care about the security of our users. While we work hard to protect the security of your Uploaded Content, personal data, and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately in the event of any actual or suspected breach or unauthorized access or use of your account.

If you are a resident of the European Union : You have the right to delete your account with us by contacting us. If you choose to permanently delete your account, the non-public personal data that we have associated with your account will also be deleted.

Internet Connectivity and Compatible Technology

The availability and functioning of the Services depend on the availability of a properly functioning Internet connection, as well as compatible hardware and software. We are not responsible for ensuring uninterrupted access to the Internet or any charges you incur, in association with your use of the Internet, nor are we responsible for ensuring your hardware and software are compatible with the Services. You acknowledge that your access to and use of the Services may be impaired or prevented by factors beyond our control (such as issues with your computer system or Internet connectivity), and that we are not responsible for any such factors, or their effects. We are not liable for any failure to backup or restore any information or for interruptions, delay or suspension of access to or unavailability of the Services, or any loss of such information, data or transmissions. It is your responsibility to ensure that your data is backed up effectively.

Limitations of Use

Without limiting anything else in this Agreement, you must not use (or cause or permit to be used) this website or the Services:

• in any way that causes, or may cause, damage to our website or the Services, or impairment of the availability or accessibility of our website or the Services;
• in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
• to post, transmit, or otherwise make available any material that is or may be: (a) threatening, harassing, degrading, hateful, or intimidating; (b) defamatory; (c) fraudulent or tortious; (d) obscene, indecent, pornographic, or otherwise objectionable; or (e) non-compliant with applicable privacy legislation or an infringement of another person’s privacy, including without limitation by disclosing the personal data of another individual without their knowledge and consent;
• to post, transmit, or otherwise make available, any material that may violate: a) our proprietary rights; or b) the proprietary rights of any third party, including, without limitation, copyrighted software, photographs, texts, videos or artwork or any moral rights associated therewith;
• own title, or transfer title to the Service to another party;
• distribute, or sublicense or otherwise provide copies or any rights in relation to the Service to any third party;
• for any commercial purposes other than those which are expressly set out in this Agreement;
• to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software;
• to conduct any systematic or automated data collection activities (including, without limitation, scraping, data mining, data extraction and data harvesting) on or in relation to this website without our prior express written consent;
• use the Software for emergency, life-saving, life support, nuclear energy equipment, air traffic control, the operation of critical communication system, public transportation control or other ultra-hazardous uses where failure of the Software to perform would be reasonably expected to cause deaths, injuries, illness or severe physical property or environmental losses;
• to rent, lease or otherwise provide location-enabled telecommunication or information services to Your customers, including, without limitation, data processing, hosting, outsourcing, service bureau or online application services (ASP) offerings;
• to engage in spamming, flooding, harvesting of email addresses or other personal information, spidering, “screen scraping”, “database scraping”, or any other activity with the purpose of obtaining lists of users or other information (including any activity which involves accessing or using the Services for purposes which are unrelated to the Services);
• to attempt to gain (or gain) unauthorized access to other computer systems through the Services, or to obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services;
• pledge, hypothecate, alienate or otherwise encumber the Service to any third party;
• modify, enhance, reverse-engineer, decompile, disassemble or create substantially derived forms of the Service;to impersonate any person or entity or misrepresent your affiliation with any other person or entity;
• alter or remove any proprietary notices or legends contained on or in the Software or any portion thereof; or
• in a manner which is otherwise contrary to this Agreement.

Any attempt to do any of the foregoing shall be deemed as a material breach under this Agreement. Any use of the Services which is contrary to the terms of this Agreement may result in the immediate termination of this Agreement and your use of the Services, by us. We will have the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense, and You hereby agree to promptly notify Us of any known violations of such restrictions.

Miscellaneous

This Agreement will be governed by the laws of the State of New South Wales and the laws of the Commonwealth of Australia applicable therein and shall be treated in all respects as an Australian contract, without reference to the principles of conflicts of law. In the event of a dispute, you agree to submit to the exclusive jurisdiction of New South Wales’s courts.

Your use of the Services may also be subject to other local, state, provincial, national or international laws and the use of the Services may be prohibited by law in some jurisdictions. By using the Services you certify that the laws of the jurisdiction in which you are using the Services, permit the use of it, and you are responsible for complying with all local laws in your jurisdiction. If the laws which apply to your use of the Services would prohibit the enforceability of this Agreement, or impose any additional burdens on us, or confer to you rights which are materially different than those granted to you under this Agreement, you are not authorized to use the Services and you agree to remove them from any computer or other device on which they may be installed.

We expressly exclude the United Nations Convention on Contracts for the International Sale of Goods replaced or re-enacted from time to time.

You agree to waive any right you may have to: a) a trial by jury; and b) commence or participate in any class action against us related to your use of the Services, the exchange of electronic documents between us or this Agreement and, where applicable, you also agree to opt out of any class action proceedings against us.

Words importing the singular include the plural and vice versa; and words importing gender include all genders, including the neuter gender, as the context may require.

We will not be liable for the failure or delay in our performance of our obligations under this Agreement due to any cause beyond our reasonable control, including, but not limited to: a) acts of God; or b) failure or disruptions in third-party-controlled or operated communications facilities; or c) worms, viruses and other disabling or disruptive software, communications or files.

Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. We may assign this Agreement without restriction. You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void. This Agreement is binding on you and us, and your and our respective successors (including any successor by reason of amalgamation of any party), heirs, legal representatives and permitted assigns, as the case may be.

Communication

When you visit our website, use the Services or send emails to us, you are communicating with us electronically. We may communicate with you by email or by posting notices on our website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically, satisfy any legal requirement that such communications be in writing and/or signed.

You are not required to agree to receive promotional messages from us as a condition of using the Services. However, by electing to submit your contact information to us and agreeing to this Agreement, you agree to receive certain communications from Whitesmiths. These communications may include, for example, operational communications concerning your account or use of the Services, updates concerning new and existing features of the Services or Whitesmiths websites, and promotional communications concerning promotions run by us or third parties, and news relating to the Services and industry developments. If you wish to stop receiving promotional communications from us, follow the instructions we provide in the communication for that category of communication.

All notices given by you to us, must be given to us by email to corp@whitesmiths.com. We may give notice to you at the email or mailing address you provide to us when you place an order with us, or register to use the Services, or by way of a general posting on our website. Notice will be deemed to be received immediately when posted on our website, twenty-four (24) hours after an email is sent and three (3) days after a letter is posted. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post. In the case of an email, notice will be proved by showing the email was sent to the specified email address of the recipient of the notice.