FISHBUOYTM is an online platform, available from the FISHBUOYTM app or the FISHBUOYTM Website (as defined below), and is used to help fishermen determine when and where to fish, based on historical and real-time water, weather and fish data (“FISHBUOY”). Certain features, functions and services are provided free-of-charge. Other features, functions or services require payment before You can access them.
IMPORTANT – YOU MUST BE AT LEAST 18 YEARS OLD TO USE ANY OF THE SERVICES. IF YOU ARE UNDER THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE, YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN READ THE AGREEMENT BELOW AND AGREE TO IT FOR YOU. IF YOU DO NOT GET YOUR PARENT OR GUARDIAN TO READ AND AGREE TO THIS AGREEMENT, THEN YOU DO NOT HAVE PERMISSION TO USE ANY OF THE SERVICES.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICES.
BY ACCESSING AND/OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT (OR IF APPLICABLE, THE OTHER TERMS, WHETHER YOU ARE A "VISITOR” (WHICH MEANS THAT YOU SIMPLY BROWSE THE WEBSITE OR OTHERWISE, TO THE EXTENT PERMITTED, USE A SERVICE WITHOUT BEING REGISTERED) OR YOU ARE A “MEMBER" (WHICH MEANS THAT YOU HAVE REGISTERED FOR AN ACCOUNT).
IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT, AND YOU MUST NOT, ACCESS OR USE ANY OF THE SERVICES.
2. Modification of this Agreement. Company, in its sole and absolute discretion, may change this Agreement and any of the Other Terms or Additional Terms, at any time, and such changes shall be effective immediately upon posting to the Website. You acknowledge and agree that: (i) Company may notify You of such changes by posting them to the Website and/or the Services; and (ii) Your use of any of the Services after such changes or modifications have been made (as indicated by the effective date noted at the top of this page) shall constitute Your acceptance of this Agreement as last revised. If You do not agree to such amended Agreement, then (i) You must immediately stop using all of the Services; and (ii) if You have an Account, You must immediately terminate Your Account (see Section 22 for how to terminate Your Account). You always have the right to cancel the Services at any time if changes to this agreement are not acceptable to You; however, payments made for Paid Services (as defined below) are non-refundable (see Section 13). If You elect not to cancel the Services and delete Your Account after receiving Our notice of a change, Your continued use and receipt of Services will constitute acceptance of the changed agreement.
3. Eligibility. The Services are designed to be used by Users located in Canada and the United States of America. Company makes no representation or warranty that the Services are appropriate for use in locations other than Canada and the United States of America. Use of the Services and registration to be a Member for the Services is void where prohibited and subject to compliance with Applicable Law, this Agreement and any applicable Additional Terms. Your Account will be deleted without warning, if We believe that You have misrepresented Your age or identity to Us in a manner that violates this Agreement or is unlawful.
5. Rights to Use the Services.
5.1 Access to the Services. Subject to the terms set forth in this Agreement, We grant You a non-transferable, non-exclusive, revocable license to: (a) use the Services for Your personal non-commercial use; (b) download, install and use one copy of Mobile App on a mobile device, which natively executes an operating system supported by Company, and that You own or control (a “Permitted Device”) for Your personal non-commercial use.
5.2 Restrictions on Use. You shall not use the Services (whether in whole or in part) in any fashion except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, You shall not and shall not encourage or assist any third party to, directly or indirectly, do any of the following acts: (i) sell, reproduce, modify or attempt to modify the Services in any way; (ii) reverse engineer, disassemble or decompile the Website or Mobile Apps or any software or other products or processes accessible through the Services, or attempt to discover or recreate the source code used to provide or access the Services, including, but not limited to, the Website or Mobile Apps; (iii) use any of the Services in any manner or for any purpose other than as expressly permitted by this Agreement, Other Terms or Additional Terms; (iv) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to You with respect to the Services to any third party; (v) remove, obscure or alter any proprietary rights notice pertaining to any of the Services; (vi) use the Services to engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (vii) use any robot, spider, scraper or other automated means to access the Services; (viii) interfere with or disrupt servers or networks used by Company to provide the Services or used by other users' to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user's full use and enjoyment of the Services; (ix) cause, in Company's sole discretion, inordinate burden on the Services or Company's system resources or capacity; (x) modify, translate, or create derivative works based on any portion of the Services; (xi) execute the Services on an emulator or on any device other than a Permitted Device; (xii) access or use the Services in order to build a competitive product or service or copy any features or functions of any of the Services; (xiii) circumvent, remove, alter, deactivate, degrade or thwart any of any security technology or software that is part of the Services (or otherwise attempt to do so or encourage or assist any other party to do so); (xiv) impersonate or attempt to impersonate any member of the Company Group (as defined in Section 19.1); or (xv) engage, or attempt to engage, in the unauthorized collection of usernames, user id numbers or similar designation, email addresses or other personal information of Users by electronic or other means, or employing third party promotional websites or software to promote profiles for money; (xvi) displaying an unauthorized commercial advertisement on Your profile, or accepting payment or anything of value from a third person in exchange for Your performing any commercial activity through the Services on behalf of that person, such as placing commercial content on Your profile; (xvii) the unauthorized posting of any private information of any person; or (xviii) violate any Applicable Law. You acknowledge and additionally agree that We reserve the right to stop any conduct that restricts or inhibits other users of the Services from fully utilizing and enjoying the Services.
6. Content Available Through the Services; Actual Conditions; Your Conduct; and Assumption of Risk.
6.1 Content Available Through the Services. The Services allow You to view and use a variety of content, including map, water level, weather, fishery data, forecasts, probabilities, imagery and related information provided by Company and its licensors (the “Services Content”). Services Content contained and offered through the Services is for informational purposes only and it is not intended to meet Your needs. Services Content includes some content that is not Ours and is the sole responsibility of the person or entity that makes it available. We may, but are under no obligation to, review such Services Content to determine whether it is accurate, complete or illegal. This does not mean that We review such Service Content, so please do not assume that We do.
6.2 Actual Conditions. When You use the Services, You may find that actual conditions differ from the Services Content, for example, weather or water conditions may change from the time from it is captured to the time when made available through the Services. It is Your responsibility to independently confirm the accuracy of all data, information, or results obtained through use of the Services, including, but not limited, to any Services Content.
6.3 Your Conduct. You are solely responsible for compliance with all Applicable Law (this includes, but is not limited to, fisheries, licensing, environmental and property rules and regulations) in connection with use of the Services, both offline and online, and in Your fishing and related activities. Any diversion or use of the Services contrary to any Applicable Law is prohibited. YOU AGREE THAT YOU ARE RESPONSIBLE AT ALL TIMES FOR YOUR CONDUCT AND ITS CONSEQUENCES AND THAT THE COMPANY GROUP WILL NOT BE LIABLE FOR YOUR CONDUCT AND ITS CONSEQUENCES.
6.4 Assumption of Risk. THE COMPANY GROUP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE AVAILABILITY, ACCURACY, QUALITY, TIMELINESS, RELIABILITY, TRUTHFULNESS OR COMPLETENESS OF THE SERVICES CONTENT OR ANY OTHER CONTENT (AS DEFINED BELOW) CONTAINED IN OR ACCESSED THROUGH THE SERVICE. YOU EXPRESSLY AGREE THAT USE OR RELIANCE ON SERVICES CONTENT OR ANY OTHER CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICE IS AT YOUR SOLE RISK. YOU AGREE THAT WE MAY ENFORCE THIS SECTION 6 ON BEHALF AND IN FAVOUR OF THE COMPANY GROUP AS THEIR AGENT AND TRUSTEE.
7. Accounts. When You register as a Member, You will be asked to provide certain information about Yourself as prompted by the registration form for an Account. You represent and warrant that: (i) You are at least the age of majority in the jurisdiction in which You reside (or, if You are not at least the age of majority in the jurisdiction in which You reside, You have obtained Your parent or legal guardian’s permission to use the Services and Your parent or legal guardian has read and agrees to this Agreement on Your behalf); (ii) all required registration information You submit is truthful and accurate; and (iii) You will maintain the accuracy of such information; and (c) Your use of the Services does not violate this Agreement (including, but not limited to, Section 10). You may terminate Your Account at any time, for any reason, by contacting Us directly. Please see Section 27 for Our contact information. We may suspend or terminate Your Account in accordance with Section 22. You are solely responsible for selecting an appropriate username and for any and all disclosures You make of Your username to others, including any selection or disclosure that makes You personally identifiable. You are responsible for maintaining the confidentiality of Your Account username and password (the “Login Information”) and are fully responsible for all activities that occur under Your Account. You agree to immediately notify Us of any unauthorized use, or suspected unauthorized use, of Your Account, Login Information or any other breach of security. We will have the right, but not the obligation, to deactivate any Account identified in such a notification. We cannot and will not be liable for any loss or damage arising from Your failure to comply with the above requirements.
8. Intellectual Property Ownership and Reservation of Rights. Other than Your Content (as defined below), all trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights in or related to the Services are and will remain the exclusive property of Company or its licensors, whether or not specifically recognized or perfected under local law. You will not acquire any rights in the Services except the limited use right specified in this Agreement. The Services are proprietary to Company and/or its licensors. You agree to take adequate steps to protect the Services from unauthorized disclosure or use.
9. Content that You Post.
9.1 Company does not claim any ownership rights in the data, text, information, images, photos, files, works of authorship, or any other materials (collectively, “Content”) that You upload, transmit, submit, display or publish (“post”) on, through or in connection with the Services. After posting Your Content on, through or in connection with the Services, You continue to retain any such rights that You may have in Your Content, subject to the limited license granted herein.
9.2 The Services are a community and inherently a social media experience. Certain features of the Services provide You with certain options regarding what is shared and with whom, which We may offer from time to time in Our sole and absolute discretion, Your Content and activities may be viewable by, or shared with, others on and off the Services, including other Users. You understand that there is a risk that any photos that You share with other Members could be shared by that Member with third parties.
9.3 Please choose carefully the Content that You post on, through or in connection with the Services. Your Content and Your profile may not include any form of Prohibited Content, as outlined in Section 10 below. You are solely responsible for the Content that You post on, through or in connection with any of the Services and/or Linked Services, and any material or information that You transmit to, and Your interactions with, third parties. We reserve the right to request at any time proof of the permissions referred to above in a form acceptable to Us.
9.4 By posting any Content on, through or in connection with the Services, You hereby grant to Company an irrevocable, non-exclusive, royalty-free, fee-free and fully paid, transferable, perpetual, worldwide right to grant sublicenses, to reproduce, distribute, publicly display, publicly perform, telecommunicate to the public, prepare adaptations and derivative works of, incorporate into other works, and otherwise use Your Content in connection with the Services by all means and manners now or later known, including, without limitation, on, through or in connection with the Services to third party applications; widgets; websites; or mobile, desktop or other services which are linked with Your Account at Your election (collectively, "Linked Services"), including, without limitation, distributing part or all of the Services and any Content included therein. Except as prohibited by law, You hereby waive, and You agree to waive, any moral rights (including attribution and integrity) that You may have in any Content. To the extent not waivable, You irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the rights granted hereunder. You understand that You will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 9.4.
9.5 Each time You post any Content, You represent and warrant that You are at least the age of majority in the jurisdiction in which You reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor (including Yourself) who is depicted in or contributed to any Content You submit, and that, as to that Content: (i) You are the sole author and/or owner of the Content posted by You on, through or in connection with the Services, or otherwise have the lawful right to grant the license set forth in Section 9.4 or that is provided in any Additional Terms, all without any Company obligation to obtain consent of any third party and without creating any obligation or liability of Company, (ii) the Content is accurate (other than as authorized in Section 10 or any Additional Terms); (iii) the posting of Your Content on, through or in connection with the Services and/or Linked Services does not violate the privacy rights, publicity rights, intellectual property rights, contract rights or any other rights of any person or entity; and (iv) the Content will not violate this Agreement (including the prohibitions in Section 10 or any Additional Terms, or cause injury or harm to any person or entity. You agree to pay all royalties, fees, and any other monies owing any person or entity by reason of the use of any Content posted by You on or through the Services and/or Linked Services.
10. Prohibited Content. We limit use of the Services to Content and activities that are appropriate, in Our discretion, to the Services. The following are examples, without limitation, of the kind of Content or activities that are illegal, or prohibited to post on, through or in connection with the Services (“Prohibited Content”). Prohibited Content includes, but is not limited to, Content that, in the sole discretion of Company:
(a) includes a photograph of a third party that You have posted without that third party's consent;
(b) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any third party;
(c) is bullying, harassing, abusive, threatening, harmful, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination,
(d) violates any law, regulation, or contractual obligations;
(e) is tortious, trade libelous, defamatory, false, intentionally misleading, or that impersonates any other person or entity, including any member of the Company Group;
(f) solicits or is designed to solicit personal information from anyone under age 18;
(g) solicits or is designed to solicit an inappropriate or unlawful relationship with a third party;
(h) publicly posts information that poses or creates a privacy or security risk to any person (including, for example, by publicly posting any person's contact information on the Services without authorization);
(i) constitutes or promotes information that You know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
(j) solicits or is designed to solicit passwords or personal identifying information for commercial or unlawful purposes from other Users;
(k) constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or
(l) furthers, promotes or depicts any illegal or criminal activity or enterprise.
11. Enforcement. Company reserves the right to investigate and take appropriate action (which may include taking legal action) in Our sole discretion, with or without notice, against anyone who, in Company's sole discretion, violates Sections 5.2 or 10, including, without limitation, removing the offending Content from the Services, terminating the Account of such violators and/or reporting such Content or activities to law enforcement authorities. Company may reject, refuse to post or delete any Content that, in the sole judgment of Company, violates this Agreement, is inappropriate for the Services or which may be offensive, illegal or violates the rights of any person or entity, or harms or threatens the safety of any person or entity. However, We are not obligated to take any action not required by law. Company, may, but assumes no responsibility or obligation for reviewing or monitoring the Services for inappropriate Content or conduct. If at any time Company chooses, in its sole discretion, to review or monitor the Services, Company nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
12. Third Parties.
12.1 Application Providers. You acknowledge and agree that the availability of Mobile Apps is dependent on the third party marketplace from which You received a Mobile App (e.g. Apple iTunes or the Google Play Store) (the “Application Provider”). You acknowledge that this Agreement is between You and Us and not with the Application Provider. You agree to comply with, and Your license to use the Services is conditioned upon Your compliance with, the Application Provider’s terms and policies. Further, without limiting the generality of the foregoing, You agree to the additional Application Provider terms set out in Section 26 below.
12.3 Content of Other Users. The Services contain Content of Users ("User Content"). Except as otherwise provided within this Agreement, or in any Additional Terms, You may not copy, download, communicate, make available, modify, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any User Content appearing on or through the Services. We are not responsible for and do not control User Content. We have no obligation to review or monitor, and do not approve, endorse, or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at Your own risk.
13. Subscription and No Refunds; Price Changes; and Trials.
13.1 Subscriptions and No Refunds. Subscriptions to fee-based Services (“Paid Services”) can be purchased either by paying the applicable subscription fee for the Services and/or subscription period selected by You. More information regarding subscription Services, subscription periods and fees can be found on the Website. Subject to Applicable Laws, when You subscribe for Paid Services (i) You are committing to subscribe for such Paid Services for the entire subscription period selected by You; (ii) except as expressly set out in this Agreement, PAYMENTS ARE NON-REFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following any cancellation, however, You will continue to have access to the Paid Services through the end of Your current subscription period; and (iii) Your payment for Paid Services will AUTOMATICALLY RENEW at the end of the applicable subscription period, unless You choose to cancel and not renew Your Paid Service before the end of the current subscription period. You may choose to cancel and not renew Your Paid Services for the next applicable subscription period at any time by contacting Us directly. Please see Section 27 for Our contact information. Cancellation will take effect the day after the last day of the current subscription period, and, effective upon cancellation, You will no longer be able to continue to use the Services, including, but not limited to, that You will not be able login to Your Account or access or retrieve Your Content. We may cancel Your access to Paid Services at any time if You fail to pay amounts owing when due, subject to any applicable grace periods, or for breach of any other material provision of this Agreement or for any other reason. In such case, You will still be responsible for payment of all outstanding balances accrued through that effective date of termination. You must comply with all of the terms and conditions of this Agreement or We may cancel Your Paid Services.
13.2 Price Changes. We may change the price for the Paid Services from time to time, and will communicate any price changes to You in advance and, if applicable, how to accept those changes. Price changes for Paid Services will take effect at the start of the next subscription period following the date of the price change. You accept the new price by continuing to use the Services after the price change takes effect. If You do not agree with the price changes, You have the right to reject the change by unsubscribing from the Services prior to the price change going into effect. Please therefore make sure You read any such notification of price changes carefully.
13.3 Trials. From time to time, We may offer trials of Paid Services for a specified period without payment or at a reduced rate (a “Trial”). Company reserves the right, in its absolute discretion, to determine Your eligibility for a Trial, and, subject to Applicable Law, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the Applicable Law. For some Trials, We may require You to provide Your payment details to start the Trial. AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU FOR THE APPLICABLE PAID SERVICES SUBSCRIPTION PERIOD ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL FOR THE FULL SUBSCRIPTION, ON A RECURRING BASIS THAT IS BASED ON THE SUBSCRIPTION PERIOD YOU SELECT WHEN YOU SIGNUP. BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AGREE TO THIS CHARGE USING SUCH PAYMENT DETAILS. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE APPLICABLE PAID SERVICES SUBSCRIPTION OR TERMINATE YOUR ACCOUNT BEFORE THE END OF THE TRIAL BY CONTACTING US DIRECTLY. PLEASE SEE SECTION 27 FOR OUR CONTACT INFORMATION. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
13.4 Payments. You must provide Us with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) in order to purchase Paid Services. We will bill all fees to Your Payment Method. Unless You choose to store Your information for Payment Method with Us, You will be required to re-enter Your Payment Method each time that You make a purchase with Us. You must be authorized to use the Payment Method that You enter. Payments will be processed by Our third party billing and payment processing providers (each, a “Billing Provider”). By making a purchase, You authorize Us and/or the Billing Provider (as the case may be) to charge the Your designated Payment Method for all purchases made by You. When You provide Us with Your information about Your Payment Method, that information, potentially along with other personal information about You, will be shared with the Billing Provider for the purposes of processing Your payments. You hereby consent to Our disclosure of Your information (including, but not limited to, personal information) to the Billing Provider for the foregoing purposes. You further acknowledge and agree that the Billing Provider may also collect from You information about You and the collection and use of such information will be subject to the terms of any agreements or policies put in place by such Billing Provider, which may be made available to You during the payment information registration process. You acknowledge and agree that We shall have no liability to You in connection with the use and disclosure of Your personal information when collected by the Billing Provider. You remain responsible for any uncollected amounts and authorize Us to continue billing the Payment Method, as it may be updated.
14. Limitations and Modifications to the Services. Certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under Applicable Law, Company reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with or without notice, all without liability to You, except where prohibited by law, for any interruption, modification, or discontinuation of the Services or any function or feature thereof. Notwithstanding the foregoing, if You have prepaid fees for Paid Services that Company permanently discontinues in its entirety prior to the end of the Paid Service Period, Company may refund You the prepaid fees for the Pre-Paid Period after such discontinuation. You understand, agree, and accept that Company has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. Company and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by Applicable Law.
16. Wireless Access. The Services may offer certain features and services that are available to You via Your wireless Device used to access the Services. These features and services may include the ability to access the Services' features and upload Content to the Services and download applications to Your wireless Device (collectively, "Wireless Features"). Standard data and other fees may be charged by Your carrier to participate in Wireless Features. Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or Device. You should check with Your carrier to find out what plans are available and how much they cost or any other questions regarding these carrier-related issues.
17. Test or “Beta” Features. We continually update and test various aspects of the Services, including features, functions and user interfaces and, from time to time, We may offer new “beta” features or tools for the Services for You to evaluate. Such features or tools are offered solely for experimental and evaluation purposes and without any warranty or condition of any kind, and may be modified or discontinued at any time at Our sole discretion. You must use these features or functionality only for evaluation purposes and for any limited period that We specify. Company provide these features and functions “AS-IS,” without indemnification or support and disclaim all express and implied warranties or conditions (including warranties of merchantability, fitness for a particular purposes, and non-infringement). Any early evaluation or beta features or functionality do not constitute an implied commitment to offer to You or anyone these features and functionality as part of the Services on a generally available basis. The provisions of this Section apply with full force to such features and tools. We reserve the right to, and by using the Services You agree that We may, include You in or exclude You from these tests without notice.
18. Feedback. We welcome Your feedback and comments regarding the Services. By submitting or providing Us with comments, messages, suggestions, ideas, concepts, feedback or other information about the Services, Company and/or its operations (collectively, “Submissions”) You thereby and hereby: (a) represent and warrant that none of the Submissions are confidential or proprietary to You or to any other party; (b) represent and warrant that none of the Submissions breach any agreement to which You are a party; and (c) grant Company an exclusive fully paid-up, royalty-free, perpetual, irrevocable, unrestricted, transferable, sub-licensable, worldwide right and license to the right to use, share and commercialize Your Submissions in any way and for any purpose. You also waive in favour of Company and its successors and assigns any and all of Your moral rights in and to all Submissions. These rights survive this Agreement.
19.1 TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE" AND “WITH ALL FAULTS”. COMPANY, COMPANY LICENSORS, COMPANY’S SUPPLIERS AND SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “COMPANY GROUP”) MAKE NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE SERVICES; (III) SERVICES CONTENT AND/OR ANY OTHER CONTENT MADE AVAILABLE ON OR THROUGH THE SERVICES (INCLUDING, BUT NOT LIMITED TO, USER CONTENT), INCLUDING THE ACCURACY AND RELIABILITY THEREOF; (IV) ANY OTHER THIRD PARTY CONTENT; (V) THE LINKED SERVICES; (VI) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SERVICES; (VII) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED IN THE SERVICE; AND/OR (VIII) SECURITY ASSOCIATED WITH: (A) THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM COMPANY OR OTHERS VIA THE SERVICES, OR (B) THE STORAGE OF YOUR CONTENT, ON COMPANY OR ITS SERVICE PROVIDERS’ SERVERS. IN ADDITION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY GROUP IS NOT RESPONSIBLE FOR ANY DAMAGE, INJURY, EXPENSE OR LOSS CAUSED BY USERS OF THE SERVICES OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SERVICES OR LINKED SERVICES.
19.2 PROFILES AND LINKED SERVICES ON, THROUGH OR IN CONNECTION WITH THE SERVICES MAY CONTAIN LINKS TO OTHER WEBSITES OR SERVICES. THE COMPANY GROUP IS NOT RESPONSIBLE FOR THE CONTENT, ACCURACY OR OPINIONS EXPRESSED ON SUCH WEBSITES AND SERVICES, AND SUCH WEBSITES AND SERVICES ARE NOT NECESSARILY INVESTIGATED, MONITORED OR CHECKED FOR ACCURACY OR COMPLETENESS BY THE COMPANY GROUP. INCLUSION OF ANY LINKED WEBSITE OR SERVICE ON THE SERVICES DOES NOT IMPLY APPROVAL OR ENDORSEMENT OF THE LINKED WEBSITE OR SERVICE BY THE COMPANY GROUP. WHEN YOU ACCESS THESE THIRD PARTY SITES AND SERVICES, YOU DO SO AT YOUR OWN RISK. THE COMPANY GROUP TAKES NO RESPONSIBILITY FOR THIRD PARTY ADVERTISEMENTS OR LINKED SERVICES THAT ARE POSTED ON, THROUGH OR IN CONNECTION WITH THE SERVICES OR LINKED SERVICES, NOR DOES IT TAKE ANY RESPONSIBILITY FOR THE INFORMATION, DATA, GOODS OR SERVICES PROVIDED BY THESE THIRD PARTIES.
19.3 THE COMPANY GROUP IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES OR LINKED SERVICES. THE COMPANY GROUP ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER OR MEMBER COMMUNICATION. THE COMPANY GROUP IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELECOMMUNICATION NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF ANY EMAIL OR PLAYERS DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON ANY OF THE SERVICES OR LINKED SERVICES OR COMBINATION THEREOF, INCLUDING, WITHOUT LIMITATION, ANY INJURY OR DAMAGE TO USERS OR TO ANY PERSON'S COMPUTER OR DEVICE RELATED TO OR RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE SERVICES OR LINKED SERVICES.
19.4 UNDER NO CIRCUMSTANCES SHALL THE COMPANY GROUP BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE SERVICES OR LINKED SERVICES, FROM YOUR CONTENT OR ANY USER CONTENT POSTED ON OR THROUGH THE SERVICES OR LINKED SERVICES, OR FROM YOUR CONDUCT OR THE CONDUCT OF ANY USERS OF THE SERVICES, WHETHER ONLINE OR OFFLINE.
19.5 THE COMPANY GROUP CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES, SERVICES CONTENT OR LINKED SERVICES.
19.6 YOU AGREE THAT WE MAY ENFORCE THIS SECTION 19 ON BEHALF AND IN FAVOUR OF THE COMPANY GROUP AS THEIR AGENT AND TRUSTEE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU TO THE EXTENT REQUIRED BY APPLICABLE LAW.
20. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL THE COMPANY GROUP BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OR IMPAIRMENT OF OTHER ASSETS) ARISING FROM THIS AGREEMENT, THE SERVICES, PRODUCTS, LINKED SITES OR THIRD PARTY SITES AND PRODUCTS OR OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL THE COMPANY GROUP’S CUMULATIVE OR AGGREGATE LIABILITY TO YOU FOR DIRECT OR ANY OTHER DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH THE SERVICES, PRODUCTS, LINKED SERVICES, THIRD PARTY PRODUCTS OR SERVICES OR OTHERWISE UNDER THIS AGREEMENT EXCEED THE GREATER OF: (I) FIFTY CANADIAN DOLLARS (CDN $50.00) OR (II) AMOUNTS YOU HAVE PAID FOR THE SERVICES (IF ANY). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. YOU AGREE THAT WE MAY ENFORCE THIS SECTION 20 ON BEHALF AND IN FAVOUR OF THE COMPANY GROUP AS THEIR AGENT AND TRUSTEE.
21. Indemnity. To the maximum extent permitted by Applicable Law, You agree to indemnify, defend (at Company's election) and hold the Company Group harmless from any loss, expense, liability, claim, damage or demand alleged by any third party, including, but not limited to, reasonable legal fees and costs, due to or arising out of or in connection with: (a) Your use of the Services or Linked Services, and Your activities in connection with the Services or Linked Services; (b) Your violation of any Applicable Law in connection with Your use of the Services or Linked Services, or Your activities in connection with the Services or Linked Services; (c) a breach of this Agreement or any Additional Terms; or (d) any Content that You post on, through or in connection with the Services or Linked Services (all of the foregoing, "Claims and Losses"). You will cooperate fully as required by Company in the defense of any Claim and Losses. Notwithstanding the foregoing, Company retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company reserves the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of Company. You agree that We may enforce this Section 21 on behalf and in favour of the Company Group as their agent and trustee.
22. Termination. You may terminate Your Account at any time, for any reason, by following the instructions available through the Services. We may terminate or suspend Your Account at any time, for any or no reason, with or without prior notice or explanation, and without liability. We may terminate this Agreement and, if applicable, cancel and terminate Your Account at any time and for any reason at any time, for any or no reason, with or without prior notice or explanation, and without liability. Once terminated, We may permanently delete Your Account and all the data associated with it. If You do not log in to Your Account for twelve (12) or more months, We may treat Your Account as "inactive" and permanently delete the Account and all the data associated with it. All provisions of this Agreement, which by their nature should survive, shall survive termination of Services, including, without limitation, the preamble of this Agreement, ownership provisions, Your payment obligations, disclaimers, limitations of liability, indemnifications and Sections 1, 2, 3, 6 - 12, 14, 17 - 21 and 23 - 26.
23. Compliance With Laws. Company reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Company to disclose the identity of anyone posting any Content, email or other messages that is believed or alleged (reasonably or not) to violate this Agreement or any Applicable Law. You acknowledge and agree that Company may investigate any violations of law and may cooperate with law enforcement authorities in this regard.
24. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province without regards to conflict of laws principles. The parties hereby expressly and irrevocably attorn to the exclusive jurisdiction of the courts in the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement.
25. Miscellaneous. This Agreement (and the documents referred to herein, including, without limitation, Other Terms and Additional Terms) constitutes the entire agreement between You and Us in relation to the use of the Services, and replace and extinguish all prior agreements, arrangements or undertakings of any nature made by the parties, whether oral or written, in relation to such subject matter. The division of this Agreement into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. You may not transfer or assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Company and any such assignment shall be null and void from the beginning. We may assign Your Account or this Agreement and all rights and/or obligations hereunder to any third party without notice for any purpose, including without limitation, collection of unpaid amounts, or in the event of an acquisition, corporate reorganization, merger or sale of substantially all of the party’s assets to another entity. You hereby consent to such assignment. You must continue making all required payments to Us in accordance with Your billing statement, unless notified otherwise. This Agreement shall enure to the benefit of and be binding upon Company's or Your respective heirs, executors, administrators, successors and permitted assigns.
26. Additional Application Provider Terms and Conditions.
26.1 Preamble. The following additional terms and conditions apply to You if You are using a copy of a Mobile App that was downloaded from an Application Provider. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 26, the more restrictive or conflicting terms and conditions in this Section 26 apply, but solely with respect to copies of Mobile Apps downloaded from the Application Provider from which You obtained Your copy of a Mobile App.
26.2 Acknowledgement. Company and You acknowledge that Company not the Application Provider, is solely responsible for Mobile Apps and the content thereof. To the extent this Agreement provides for usage rules for a Mobile App that are less restrictive than the Usage Rules set forth for a Mobile App in, or otherwise is in conflict with, the applicable Application Provider’s terms of service, the more restrictive or conflicting Application Provider term applies. Capitalized terms used in this Section 26 that are not defined in this Agreement will have the meaning set out in Apple’s App Store Terms of Service or the Google Play Store Terms of Service, as applicable.
26.3 Scope of License. Where Your Application Provider is Apple, the license granted to You for a Mobile App by Apple is limited to a non-transferable license to use such Mobile App on an iOS Product that is also a Permitted Device You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. Where Your Application Provider is Google, the license granted to You for a Mobile App through Google Play is limited to a non-exclusive, worldwide and perpetual license to perform, display and use the copy of such Mobile App You obtained from Google Play on Your Permitted Device.
26.4 Maintenance and Support. Company is solely responsible for providing any maintenance and support services with respect to Mobile Apps, as specified in this Agreement (if any), or as required under Applicable Law. Company and You acknowledge that the Application Provider has no obligation whatsoever to furnish any maintenance and support services with respect to Mobile Apps. Company and You acknowledge that Company is solely responsible for providing any maintenance and support services concerning any defects or performance issues in the copy of Mobile Apps You downloaded and installed from the Application Provider. For any customer support inquiries with respect to Mobile Apps obtained from an Application Provider, please contact Company as set out in Section 27.
26.5 Warranty. Company is solely responsible for any product warranties, product liability, consumer protection and/or intellectual property claim relating to Mobile Apps, whether express or implied by law, to the extent not effectively disclaimed by Company. In the event of any failure of a Mobile App to conform to any applicable warranty, You may notify Your Application Provider, and the Application Provider will refund the purchase price, if any, for such Mobile App to You; and to the maximum extent permitted by Applicable Law, the Application Provider will have no other warranty obligation whatsoever with respect to such Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Company’s sole responsibility.
26.6 Refunds. In all respects, the Application Provider’s standard terms and conditions regarding refunds will apply. Your refund may be exclusive of taxes previously charged for purchases.
26.7 Product Claims. Company and You acknowledge that Company, not the Application Provider, is responsible for addressing any claims of You or any third party relating to Mobile Apps or Your possession and/or use of Mobile Apps, including, but not limited to: (i) product liability claims; (ii) any claim that a Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Company’s limitation of liability is subject to Applicable Law.
26.8 Intellectual Property Rights. Company and You acknowledge that, in the event of any third party claim that a Mobile App or Your possession and use of a Mobile App infringes that third party’s intellectual property rights, Company, not the Application Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
26.9 Takedowns. If Company decides to remove from future distribution of Mobile Apps downloaded through an Application Provider, Company will nevertheless continue to comply with applicable terms of service regarding refund requirements and Our removal will not affect any license rights You may be entitled to for such Mobile App(s) You previously purchased or downloaded, or any obligations We may have to You for product support You may have purchased. Notwithstanding the foregoing, Company has the right to remove Mobile Apps in response to: any allegations of or actual infringement of any copyright, trademark, trade secret, trade dress or patent or other intellectual property right of any person or entity, allegations of or actual defamation of any person or entity; any other violations (alleged or actual) of third party rights; or an allegation or determination that a Mobile App does not comply with Applicable Laws. Company also has the right to remove Mobile Apps from any Application Provider in its sole discretion at any time for any reason including but not limited to, discontinuance of the applicable product or due to business innovation.
26.10 Reinstalls. You are allowed unlimited reinstalls of Mobile Apps distributed via the Google Play store, except for any products which are removed from the Application Provider pursuant to Section 26.9 above.
26.11 Updates. You acknowledge and agree that the applicable Application Provider may, but shall not be obligated to extend, enhance, or otherwise modify its software or services (or any part thereof) provided hereunder at any time without notice. If updates are made available, the terms of this Agreement will govern such updates. Further, You acknowledge and agree that such modifications are not within Company’s control and may affect Your ability to use, access, or interact with the software and services or require You to change Your products or discontinuing using Mobile Apps entirely.
26.12 Apple Push Notifications. Before Company sends You any push notifications through Apple Push Notifications (“APN”), Company will obtain Your consent to receive such notifications. If You deny or later withdraw Your consent, We will not send You push notifications.
26.13 Legal Compliance, You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
26.14 Developer Name and Address. Company’s contact information for any end-user questions, complaints or claims with respect to Mobile Apps is set forth in Section 27.
26.15 Third Party Terms of Agreement. You must comply with applicable third party terms of agreement when accessing or using Mobile Apps as provided by any Application Provider. Such terms of agreement will be located in a link on the applicable Application Provider’s website.
26.16 Third Party Beneficiary. Company and You acknowledge and agree that the Application Provider, and its subsidiaries, are third party beneficiaries of this Agreement, and that, upon Your acceptance of the terms and conditions of this Agreement, Your Application Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You, and may rely upon any provision of this Agreement that confers a benefit (or rights in their favor) on them as a third party beneficiary thereof.
27. Contacting Company.
If You have questions about this Agreement, feel free to contact Us.
Mail: 295 Hagey Boulevard
1st Floor, West Entrance
Waterloo, Ontario, Canada
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