TERMS OF SERVICE AND USER AGREEMENT

Last Updated: December 9, 2008

A. Welcome – Terms of Use

Welcome to the Terms of Service and User Agreement (“User Agreement”) for the Enfigo Instant Online Print Quotes & Procurement™ service owned and operated by Spreadink Ltd. This User Agreement sets out the terms and conditions (“Terms”) on which you may access and use the Instant Online Print Quotes & Procurement service offered through our Enfigo™ website (as further described below and hereinafter called the “Service”). In order to access the Service and become an Enfigo™ user, you must read and accept all of the Terms of this User Agreement and our Privacy Policy, which will make this User Agreement a binding contract between us. The said Privacy Policy is incorporated herein by reference. If you do not agree to be bound by the Terms of our User Agreement and Privacy Policy, you may not use nor access our Service or this website.
BY COMPLETING THE ENFIGO™ ONLINE APPLICATION PROCESS, CLICKING THE “SUBMIT” OR “ACCEPT” BUTTONS, SIGNING, USING THE SERVICE OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THE TERMS CONTAINED HEREIN, YOU REPRESENT AND WARRANT THAT YOU (i) ARE AUTHORIZED TO SIGN FOR AND/OR BIND YOURSELF AND ANY OTHER PARTY ON WHOSE BEHALF YOU USE THE SERVICE (THE “USER,” AS FURTHER DEFINED BELOW), AND (ii) AGREE FOR YOURSELF AND THE USER TO BE BOUND BY ALL OF THE TERMS OF THIS USER AGREEMENT (INCLUDING OUR PRIVACY POLICY AND THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY PROVISIONS SET FORTH BELOW) TO THE EXCLUSION OF ANY OTHER RIGHTS AND OBLIGATIONS OR OTHER TERMS LISTED ON A PURCHASE OR SIMILAR ORDER THAT YOU OR THE USER MAY PROVIDE US, AND YOU AND THE USER AGREE THAT ANY SUCH RIGHTS, OBLIGATIONS OR OTHER TERMS LISTED ON SUCH PURCHASE OR SIMILAR ORDER ARE HEREBY NULL AND VOID.
We reserve the right to change, modify, add and/or delete portions of the Terms of this User Agreement and our Privacy Policy from time to time, without prior notice, by posting amended Terms in our User Agreement on this website. Your continued use of the Service constitutes your acceptance of the amended User Agreement and Privacy Policy.

B. Description of Service and Parties

The Enfigo Instant Online Print Quotes & Procurement™ service is a non-exclusive, non-transferable web-based service that provides (i) 24/7 online access to a complete estimating and procurement system for graphic arts requirements, (ii) immediate quotes for most print requirements, and (iii) access from any internet-linked workstation.
“You,” “your,” and “User” or “Users” means the user and any other party on whose behalf the Service is used and includes all individuals and entities disclosed to us pursuant to the Enfigo™ Online Application process as completed by the user. “We,” “our,” or “us” means Spreadink Ltd. and/or its affiliates and subsidiaries.

C. Service Eligibility and Use of Service

The Service is not available to minors under the age of 18 or to any users previously suspended from, or denied access to the Service for any reason or no reason. The Service is only for the use of our authorized Users. Users may not resell the Service itself to third party individuals or entities. Only Users who subscribe to our print vendor service (“Print Vendor(s)”) may use the results and quotes obtained through use of the Service for the purpose of redistribution or resale.
Subject to our approval of your Enfigo™ Online Application, your use of the Service is governed by this User Agreement and our Privacy Policy as well as the “Trade Customs of the Printing Industry of North America” which is hereby incorporated by reference, provided that if there is any discrepancy between such Trade Customs and this User Agreement, the terms of this User Agreement shall prevail. We may refuse service at our sole discretion, at any time, in whole or in part (i.e., in respect of any order or orders), for any or no reason, in which event, such fees, charges, and payments, if any, made by you may be refunded by us on a pro-rated, equitable basis as determined in our sole discretion. We also reserve the right to change any specifications entered by Users (including, without limitation, where the initial specifications are not technically feasible or where we can offer more advantageous services) and provide a quote based on such revised specifications.

D. Fees, Charges and Payment Options

Users who request a quote for the Users’ own end use (“Print Buyers”) may use our Enfigo Instant Online Print Quotes & Procurement™ service free of charge.
Print Vendors (i.e., Users who subscribe to our print vendor service for the purpose of redistribution or resale) will be charged, at the Print Vendor’s election, a monthly or yearly user fee (the “Monthly or Yearly User Fee”) as part of the Print Vendors’ Enfigo™ Online Application, in accordance with our then-current pricing terms [click here for pricing page] as set out in this website and amended from time to time (“Pricing Policy”). Print Vendors will be charged the Monthly or Yearly User Fee on the first day of purchase and then monthly or yearly, as applicable. Approval by us of your Enfigo™ Online Application and access to the Service is conditional upon receipt of your payment and/or acceptable payment arrangements.
Payment may be made pursuant to our credit card authorization procedures on our website. Any other payment options shall be as authorized pursuant to any offline payment arrangements made between us and you.
The User agrees hereby to pay the fees and charges (plus any applicable GST or sales taxes) as described above in return for the Service in accordance with the Terms of this User Agreement.
Outstanding fees, charges and taxes for the Service and/or any print purchase orders will be subject to a one percent per month interest charge after thirty (30) days, calculated on a monthly basis (being an effective annual rate of twelve point seven percent (12.7% per annum).

E. Commencement Date, Initial Term, Renewal, Expiry, and Termination

This User Agreement is based on a monthly or yearly term (the “Chosen Term”) which shall be automatically and continually renewed for the Chosen Term indefinitely until and unless the User provides us with written notice of termination or unless otherwise cancelled or suspended as provided herein. Our Service will be provided to the end of the Chosen Term in which your notice of termination may be received.
Either party may terminate this User Agreement effective immediately upon written notice in the event of the other party becoming insolvent or bankrupt, discontinuing business or resolving to dissolve or voluntarily liquidate.
We may immediately or at any time terminate, cancel or suspend this User Agreement without prior written notice if in our sole judgment, (a) you do not maintain your account in good standing, (b) you breach any of the terms of this User Agreement, or (c) your business conduct violates any law, statute, rule or regulation. In addition to the rights granted herein, we may enforce any other rights and remedies we may have at law or in equity. All our rights and remedies are cumulative.
Upon any termination, cancellation or suspension of this User Agreement, you remain responsible for any obligations then accrued including, but not limited to, payment of any costs or charges that may arise in connection with such termination, cancellation or suspension, and payment of all Monthly or Yearly User Fees through the entire billing month or year in which said termination, cancellation or suspension occurs. Your payment and other obligations under this User Agreement are not suspended, stayed, or otherwise affected by a suspension of your access to or use of the Service, where said suspension arises from your failure to comply with, or your violation of, the terms of this User Agreement or of any law or legal obligation. We shall have no obligation to you after any termination or cancellation of this User Agreement.
Upon termination or cancellation of this User Agreement, all of your undertakings, covenants, warranties, representations, accrued obligations, liabilities and the provisions which by their nature are intended to endure beyond such termination or cancellation shall survive such termination or cancellation and shall remain in full force and effect for as long as necessary to be satisfied, performed and enforceable in accordance with this User Agreement, and in respect of the confidentiality provisions herein, same shall be without limitation. Further, any termination or cancellation shall not affect the rights or obligations of the parties with respect to any proprietary or intellectual property rights, which rights and obligations shall survive the termination of this User Agreement.

F. Our Price Guarantee

Subject to any provisions to the contrary in this User Agreement, we will accept any order from you based on a quote received from our Service and will provide project management and/or graphic arts services (hereinafter referred to as the “Graphics Services” as further defined below) on the following terms and conditions (hereinafter referred to as “Our Price Guarantee”):

(a) We will beat any qualifying competitor’s quote (as defined below and hereinafter referred to as the “Competitor’s Quote”) by 5% upon written presentation of a copy of the Competitor’s Quote.

(b) The Competitor’s Quote must be dated within 30 days of the applicable quote supplied by us.

(c) All specifications and requirements must be included in the Competitor’s Quote and the elements must be the same as our quote.

(d) The Competitor’s Quote must be produced in good faith and free of human error.

(e) Prices extended by the competitor in the Competitor’s Quote must be based on prices that the competitor would supply to the general public and not as part of a contract or volume rebate program.

(f) The Competitor’s Quote must be based on the competitor’s services being provided in-house.

(g) We shall have the right to contact the said competitor and transact business with him/it.

(h) The said competitor must be willing to accept material from outside sources (eg., paper, film, plates, etc...) and to transact business with us based on the Competitor’s Quote.

(i) The said competitor must be located in the Greater Toronto Area.

(j) We do not guarantee matching delivery timelines.

(k) Our Price Guarantee applies to selling prices between $1,000 and $10,000, but an order may be accepted outside these values at our sole discretion.

(l) Any order may be subject to the following payment terms: 100% upon approval.

(m) Our Price Guarantee may not be used to negotiate with other suppliers. IF YOU ASK US TO HONOUR OUR PRICE GUARANTEE FOR ANY GIVEN PROJECT, YOU ARE DEEMED TO HAVE PLACED AN ORDER WITH US ON THE TERMS AND CONDITIONS SET OUT IN OUR QUOTE LESS 5% OF ANY QUALIFYING COMPETITOR’S QUOTE AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. OUR CONFIRMATION OF OUR PRICE GUARANTEE FOR ANY GIVEN PROJECT SHALL SERVE AS CONFIRMATION OF YOUR ORDER.

(n) Our Price Guarantee applies only to Print Buyers (i.e., end-user accounts excluding resellers, brokers, franchisees, etc...).

G. General Terms

Should you place an order with us for our Graphics Services based on a quote supplied by us through the Service, we may accept such order based on the specifications and requirements listed in such quote. You acknowledge that the Terms of this User Agreement shall apply to your order to the fullest extent possible, with such changes as may be reasonably necessary for them to apply being deemed in effect (mutatis mutandis), and/or that we may accept your order on additional terms and conditions as may be mutually agreed between you and us including without limiting, sub-paragraph F. 1 (l) above. You further acknowledge and agree that we may, from time to time, refuse to provide a quote and/or provide our Graphics Services for any reason, or no reason, in our sole and absolute discretion, including without limiting, where your graphic arts requirements (a) violate any rights of others, including but not limited to, infringement of any proprietary rights, copyrights, trademarks, patents, or trade secrets; (b) libel, defame or slander any person, or infringe upon any person’s privacy rights; (c) are, or are likely to be perceived by an intended recipient or target to be, profane, pornographic or obscene (pursuant to the Criminal Code), particularly (but without limitation) if it is intended to annoy, abuse, threaten, or harass another person; or (d) violate any applicable local, provincial, national, international or foreign law, statute, ordinance or regulation. You agree and acknowledge that we shall have no liability to you or others in regard to any information printed, published or used in any good or deliverables which may fall into any of the above categories. We shall not be obligated to return to you any of your information provided hereunder. Except as permitted in writing by us, you shall not use any of our trademarks, trade names, service marks, trade designs or logos, or any variations or derivatives thereof, for any purpose. In submitting any information to us for quotations, you warrant that you own such information or have a right to disclose same to us.
We may, from time to time, update, modify, and otherwise improve the Service. Such changes may require us to simultaneously modify the terms of Service. Accordingly, we reserve the right to modify the Terms of this User Agreement and our Privacy Policy and to change or discontinue any aspect or feature of the Service, as the case may be, as we deem reasonably necessary. Such changes shall be effective immediately upon posting of any such addition, change, or deletion as part of a revised version of our User Agreement, noting the updated version date on our website, or upon you otherwise being so notified. Any use by you of the Service after any such change has been posted, or you have been otherwise notified, shall constitute your acceptance of any such change(s). If you do not agree with any such change(s), you may cancel the Service within 30 days of such change(s) being posted or other notification, upon giving written notice to us in accordance with this User Agreement, in which event the Service shall be provided to the end of your then-current Chosen Term and then terminated. You acknowledge and agree that it is your responsibility to review this User Agreement and/or our Privacy Policy from time to time and to be aware of any such changes. The current version of this User Agreement and Privacy Policy is posted on this website and may be reviewed and printed at any time before or after you have logged on with your username and password to our site. This User Agreement may not be otherwise amended except in writing signed by both parties.
DISCLAIMER OF WARRANTIES: OUR SERVICE AND/OR GRAPHICS SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER IMPLIED OR OTHERWISE. WE DO NOT WARRANT THAT OUR SERVICE AND/OR GRAPHICS SERVICES TO BE PROVIDED SHALL BE UNINTERRUPTED OR ERROR-FREE NOR DO WE, OUR AFFILIATES, AGENTS AND THOSE FOR WHOM IN LAW WE MAY BE RESPONSIBLE MAKE ANY WARRANTY OR REPRESENTATION AS TO THE RESULT TO BE OBTAINED FROM USE OR ENGAGEMENT OF OUR SERVICES AND/OR GRAPHICS SERVICES.
LIMITATION OF LIABILITY: IN THE EVENT OF ANY BREACH BY US, OUR AFFILIATES, AGENTS, AND THOSE FOR WHOM IN LAW WE MAY BE RESPONSIBLE, INCLUDING ANY BREACH OF A FUNDAMENTAL TERM OR ANY NEGLIGENCE, YOUR EXCLUSIVE REMEDY SHALL BE TO RECEIVE FROM US PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO (A) A MAXIMUM AMOUNT EQUAL TO THE MONTHLY OR YEARLY USER FEES PAID BY YOU TO US FOR THE THREE MONTHS PRECEDING ANY SUCH BREACH IN THE CASE OF OUR ENFIGO™ ONLINE SERVICE AND TO (B) A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID TO US FOR THE APPLICABLE GRAPHICS ORDER IN THE CASE OF OUR GRAPHIC SERVICES. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, NEITHER US, OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS AND REPRESENTATIVES, NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DELIVERING EITHER THE SERVICE OR GRAPHICS SERVICES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITING, LOSS OF PROFITS, LOST SALES, LOST ANTICIPATED SAVINGS, LOST OR WASTED TIME, LOSS OF USE AND LOSS OF BUSINESS OPPORTUNITIES, ARISING OUT OF ANY USE, RECEIPT OR ENGAGEMENT OF EITHER SERVICE OR INABILITY TO USE OR RECEIVE EITHER SERVICE OR RESULTING FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS, DEFECTS IN PREPARATIONS OR TRANSMISSIONS, OR FAILURE OF PERFORMANCE.
You agree to indemnify, hold harmless and defend us, our directors, officers, shareholders, employees, affiliates, agents, and those for whom we may in law be responsible, from and against any and all claims, liabilities, damages, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, solicitors’ fees and disbursements) arising from or relating to the use of the Service or our Graphics Services in any manner which violates the terms of this User Agreement or otherwise violates any law, statute, rule or regulation.
You acknowledge that you and Spreadink Ltd. (and its affiliates/subsidiaries), each acts hereunder for its own account and not as the agent or partner of the other. Nothing contained herein shall be construed to create a relationship of employer and employee, principal and agent, partnership, joint venturers, or the like between them. Neither party shall have authority to, and neither party shall, enter into any contract on behalf of the other party or commit the other to any obligation with a third party individual or entity.
Any waiver by us of a breach of any provision of this User Agreement by you shall not operate or be construed as a waiver of any subsequent breach by you.
Time is of the essence of this User Agreement.
Arbitration - Any disputes between the parties arising out of this User Agreement and related to the termination of this User Agreement shall, upon written notice by either party to the other, be resolved by arbitration pursuant to the provisions of the Arbitrations Act (Ontario). Unless the parties otherwise agree, one arbitrator shall be chosen within thirty (30) days following the giving of such notice. The arbitral decision shall be rendered within ninety (90) days after the matter has been submitted to the arbitrator, and shall be binding upon the parties hereto. Submissions to arbitration pursuant to this paragraph shall be a condition precedent to the bringing of any action with respect to the User Agreement.
Enfigo™ is owned and operated by Spreadink Ltd. and notices hereunder shall be delivered by registered mail to our address or fax number, both as set out elsewhere in this website (or such other address or fax as we may later specify). Notices hereunder to you may be given by registered mail to your address or fax number as indicated on your Enfigo™ Online Application (or such other address or fax as you may later specify).
If the performance by either party hereto is delayed or prevented by circumstances beyond the reasonable control of that party (including any act of God, terrorist act, fire, explosion, strike or lockout) then the due time for performance will be extended by a reasonable period and we will be excused from providing the Service and you from paying for the Service to the extent same are affected by such an event.
Upon subscribing to the Service, you will have access to and gain knowledge of our online quotes and procurement program and other confidential and proprietary information (including without limiting the Terms of this User Agreement) regarding our business enterprise, techniques, trade secrets, computer software and programs, know-how, ideas, concepts, processes, products, protocols, methods, algorithms, and system (hereinafter referred to as the “Confidential and Proprietary Information”). You acknowledge and agree that the Confidential and Proprietary Information is and will remain our exclusive property. You also agree that the Confidential and Proprietary Information (a) constitutes a proprietary right which we are entitled to protect; and (b) constitutes information and knowledge not generally known to the trade. You agree that you will not, nor will you assist others to, disassemble, reverse engineer or decompile, or otherwise attempt to derive source code from all or any portion of the Confidential and Proprietary Information.
You agree, on your behalf and on behalf of those for whom in law you may be responsible, to maintain securely and hold in strict confidence all Confidential and Proprietary Information received, acquired or disclosed to you and/or your users as a result of or in connection with the Service and this User Agreement. You agree to continue to hold the Confidential and Proprietary Information in strict confidence at all times after any termination or cancellation of this User Agreement. You will not disclose any of the Confidential and Proprietary Information to any person, firm or corporation, nor will you use any of the Confidential and Proprietary Information for any purpose other than for the intended purpose of obtaining price quotes for your graphics arts requirements in the normal and ordinary course of your business; PROVIDED that, subject to the terms of Our Price Guarantee, you may disclose any quotes initially received from us in soliciting competing quotes. You will use your best efforts to protect and safeguard Confidential and Proprietary Information from, without limitation, loss, theft, destruction or seizure.
You agree that all documents, copies, records and other materials received or acquired by or disclosed to you or your users that pertain to our business and affairs, including all Confidential and Proprietary Information, are the confidential property of Spreadink Ltd. and that, with the exception of this User Agreement, you will return same and any copies of them to us forthwith upon the termination or cancellation of this User Agreement or at any time immediately upon our request.
The restrictive obligations set forth above shall not apply to the disclosure or use of any information which:

(a) is or later becomes publicly known under circumstances involving no breach of this User Agreement by you;

(b) is already known to you at the time of receipt of the Confidential and Proprietary Information;

(d) is independently developed by you without access to or use of the Confidential and Proprietary Information provided by us, or

(e) is required by law to be disclosed but only to the extent of such requirement and you shall immediately notify us in writing upon receipt of any request for such disclosure.

You represent and warrant that you, and those for whom you may in law be responsible, will not use or cause to be incorporated in any of your work product any data, software, information, designs, techniques or know-how which constitutes our Confidential and Propriety Information.
For good and valuable consideration, including, without limitation, the disclosure of the Confidential and Proprietary Information to you and a continuing business relationship between the parties, during the term of this User Agreement and for three (3) years thereafter, you undertake in our favour to refrain from performing any of the following acts or participating, directly or indirectly, in any capacity whatsoever (including, without limitation, as owner, partner, employee, member of management, senior executive, director, advisor, consultant, shareholder, limited partner, lender, investor, financial backer, or agent), in the commission of one or more of the following acts:

(a) compete with us, or participate in an online print quoting and procurement business similar to that operated by us, in any territory that we service during the term of this User Agreement and for three (3) years thereafter;

(b) solicit any of our clients or any of our former clients who have been introduced to you by us sooner than three (3) years after such client ceases to be our client; or

(c) solicit, hire or otherwise retain the services of any of our employees or of any of our former employees sooner than three (3) years after he/she ceases to be our employee.

Notwithstanding the foregoing, you shall be entitled to do business or continue to do business with any of your existing suppliers and clients, but shall inform us forthwith of any such business which competes with us, in which event we may cease our business relationship with you.
You acknowledge and agree that a breach by you, or by those for whom you may in law be responsible, of any of the covenants contained in paragraphs 12 through 18 of this User Agreement herein shall result in damages to us and that we could not be adequately compensated for such damages by a monetary award. Accordingly, in the event of any such breach, in addition and without prejudice to all other remedies available to us at law or in equity, we shall be entitled as a matter of right to apply to a court of competent jurisdiction for such relief by way of restraining order, temporary or permanent injunction, to cure any such breach and limit or attempt to limit the damages resulting from such breach, or as may be appropriate, to ensure compliance with the provisions of this User Agreement.
You hereby agree that all restrictions in this User Agreement are reasonable and valid and all defences to the strict enforcement thereof by us are hereby waived by you.
The parties shall, upon the reasonable request of the other party, make, do, execute or cause to be made, done or executed, all such further and lawful acts, deeds, things, documents and assurances of whatsoever nature and kind for the better or more perfect or absolute performance of the terms, conditions and intent of this User Agreement.
This User Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein. This User Agreement constitutes the entire contract and understanding between the parties with respect to the subject matter of this User Agreement and supersedes and replaces any and all prior contracts, understandings, negotiations, advertising or other communications, whether written or oral, between the parties. This User Agreement may not be assigned or transferred by you. We may assign our rights and obligations under this User Agreement to any party or affiliate, provided the assignee or transferee shall agree to be bound by the Terms of this User Agreement. If any provision of this User Agreement is held to be invalid or unenforceable, such provision shall be enforced to the maximum extent permitted by law and the remaining provisions contained herein shall remain in full force and effect. This User Agreement shall be binding upon and inure to the benefit of each of the parties hereto and his/her/its respective successors and permitted assigns.

H. Specific Terms

You shall allow 5 business days for receipt of your username, password and training from the time we receive your Enfigo™ Online Application and payment.
The Service is non-transferable. It can only be used by the User Name(s) applied for and listed in your Enfigo™ Online Application and as approved by us.
The Monthly or Yearly Fee entitles you to one username/password. More than one person can use it, but not at the same time. Additional usernames/passwords may be obtained for simultaneous use.
You and all Users authorized by you acknowledge that the Service uses proprietary technology which you/they agree to keep confidential.
You and all Users authorized by you agree not to develop a similar program and system for a period of three years from termination of the User Agreement.
The User Fee (where applicable) includes training, maintenance and updates.
“Graphics Services” are defined as any pre-press, printing, bindery and distribution services and products (or a combination of these services).
The Service will provide immediate pricing on a wide range of graphic requirements. We do not, however, guarantee that online pricing will be available for every request. In the case where a quote is not given immediately, subject to paragraph 9 immediately below, we shall endeavour to provide a manual quote within a reasonable time.
Enfigo™ reserves the right to refuse to provide a quote at any time and from time to time for any reason or no reason in our sole discretion.
Quotes are based on the information that is entered by the User and shown on our estimate.
New technologies will be incorporated on the system in a reasonable timeframe.
Technical support is available during business hours.