TERMS AND CONDITIONS
Last Update: January 10, 2014
YOUR (COLLECTIVELY “YOU” OR “YOUR”) USE OF BREAKING DATA CORP (“COMPANY”) SITE OR ANY OF THE SOFTWARE SUBSCRIPTION SERVICE OFFERINGS OR OTHER SERVICE OFFERED ON THE SITE, APPLICATION AND ALL CONTENT, SERVICES AND PRODUCTS AVAILABLE AT OR THROUGH THE SITE OR APPLICATION IS SUBJECT TO THESE TERMS AND CONDITIONS (“AGREEMENT”) IF YOU DO NOT AGREE TO THIS AGREEMENT YOU ARE NOT TO USE OR ACCESS THE SERVICES AND THE SITE. YOUR REGISTRATION FOR, OR USE OF, THE SERVICES SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY THIS AGREEMENT.
IN ADDITION TO THE FOREGOING, SOME OF THE SEREVICES MAY BE SUBJECT TO ADDITIONAL CONDITIONS EITHER POSTED ON THE SITE OR PROVIDED BY LINKS TO THIRD PARTIES’ WEBSITES THAT ARE NOT OWNED OR CONTROLLED BY THE COMPANY. THE COMPANY HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR, THE CONTENT, PRIVACY POLICIES, OR PRACTICES OF ANY THIRD PARTY CONTENT OR WEBSITES. IN ADDTION, THE COMPANY WILL NOT AND CANNOT CENSOR OR EDIT THE CONTENT OF ANY THIRD-PARTY SITE. BY USING THE SERVICE, YOU EXPRESS ACKNOWLEDGE AND AGREE THAT THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES, CLAIMS OR OTHER LIABILITY ARISING FROM OR RELATED TO YOUR USE OF ANY THIRD-PARTY WEBSITE.
IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU CANNOT DOWNLOAD THE APPLICATION AND YOU CANNOT USE THE SERVICES. THE SERVICES ARE ONLY AVAILABLE THROUGH THE APPLICATION. TO RECEIVE THE SERVICES, YOU MUST DOWNLOAD THE APPLICATION FROM THE SITE.
THE APPLICATION IS PRE-LOADED ON CERTAIN DEVICES AND CANNOT BE UNINSTALLED FROM THESE DEVICES. IF YOU DO NOT USE THE PRE-LOADED APPLICATION OR THE SERVICES, YOU DO NOT ENTER INTO A BINDING LEGAL AGREEMENT WITH THE COMPANY AND YOUR PERSONAL INFORMATION WILL NOT BE COLLECTED, USED OR DISCLOSED.
THE COMPANY’S ACCEPTANCE OF THIS AGREEMENT AND PROVISION OF THE SERVICES IS EXPRESSLY CONDITIONAL UPON YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS AND CONDITIONS, EXPRESS OR IMPLIED. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER MADE BY THE COMPANY, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. THIS AGREEMENT IS FOR LICENSES AND SERVICES AND IS NOT A SALE OF GOODS.
DEFINITIONS. In this Agreement:
a) the “Application” means the Poynt Mobile Application, as upgraded, enhanced or modified by the Company from time to time, and which may be downloaded from the Site or preloaded on your mobile handset;
b) the “Content” means and includes any and all materials, information or data displayed, distributed, provided or performed on the Site or through the Application, which may include but not be limited to text, software, scripts, graphics, maps, photos, sounds, music, videos, logos, interactive features and other materials;
c) the “Services” are more fully described on the Site and/or in the Application and may include, but not be limited to, downloading, installation and/or use of the Application and access to or use of the Site, and mobile applications that are intended to provide a rich mobile user experience, together with any other products or services the Company makes available or agrees to perform for or on behalf of you, as well as the offering of any Content on the Site or through the use of the Services. All references to the Services shall include the Application, the Content and the Site where the context requires; and
d) the “Site” means and includes a number of web sites available at or through various domains used, owned or operated by the Company from time to time (including any and all sub-domains, directories, sub-directories, files, folders and related URL’s).
2. LIMITED LICENSE. The Services are licensed, not sold. You do not own the Services. Subject to the terms and conditions of this Agreement, the Company grants you a limited, personal, revocable and non-exclusive license to access, use and receive the Services as made available and permitted by the Company from time to time. The Services may be utilized by you through the processes provided on the Site, through installation and use of the Application, or through the use of a phone or other communication device only for your own personal, non-commercial use, and not for the use or benefit of any third party. You will not sell, copy, transfer, make available, rent, lease, license, sub-license or lend the Services to any third party and you will not use the Services as a service bureau or application service provider providing products, services, information or Content to third parties. This Agreement and the license granted is void where prohibited by law, no offer to you to enter into this Agreement is valid in such jurisdictions, and any license granted to you to use the Services is void and, if necessary to give effect to the foregoing, revoked in such jurisdictions, provided that, notwithstanding the foregoing, all disclaimers and limitations in this Agreement in favour of the Company shall in all cases apply. You may not modify, publish, transmit, participate in the transfer, rental or sale of, reproduce (except as provided herein), create derivative works based on, distribute, perform, display, or in any way exploit, the Services in whole or in part. You may not utilize the Services in any way other than as expressly provided in this Agreement. You shall not retain or store any significant portion of any Content in any form other than such portion as may be reasonably necessary for limited periods of time to use the Services. Copying, retention or storing of any Content for other than personal, non-commercial use as permitted in this Agreement is expressly prohibited without prior written permission from the Company, or from the copyright holder identified in such Content’s copyright notice.
3. RIGHT TO MODIFY, SUSPEND OR TERMINATE. The Company may, in its sole discretion, change, modify, suspend or discontinue the Services at any time, including the availability of any feature, service, or Content, or amend or terminate this Agreement at any time without notice and without liability to you. The Company may also impose limits on certain features and services or restrict your access to the Services, or any one or more components or parts of the Services, without prior notice or any liability whatsoever. The Company shall have the right, at its sole discretion, to modify or terminate this Agreement and/or the Services at any time by posting a notice on the Site, or by sending you a notice via email or other form of written notice.
4. ELECTRONIC COMMUNICATION AND CONTACT INFORMATION. If requested or required by the Company, you agree to continuously maintain and regularly access a valid and active email address and account for the purposes of the Company notifying you of any modification or termination of this Agreement or and changes, modifications, suspension or discontinuation of the Services. You agree that you will in all cases be responsible for reviewing and becoming familiar with any such modifications by the Company. Use of the Services by you following posting of a notice on the Site, or in the Services, or sending such notice in the Application, or sending email notification constitutes your acceptance of the terms and conditions of this Agreement as modified. You agree that any notice, agreement, disclosure or other communications that the Company sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You agree to contract electronically.
6. DATA USAGE Minimal data transfer occurs while performing location searches in the Application, however, when downloading and viewing movie trailers or using push messaging data transfer rates will be higher. Higher data pricing occurs when roaming – check with your carrier for data pricing.
7. YOUR OBLIGATIONS. You agree as follows:
a) You warrant, represent and certify to the Company that you are an individual and not a corporation or other legal entity, you are of full legal age and have full capacity in your jurisdiction of residence, location or domicile to form a binding and enforceable contract, you are legally permitted to use the Services, this Agreement is valid and enforceable in your jurisdiction, and, whether or not you access the Services through the account of a third party, including without limitation, your employer or a corporate entity, you take full personal responsibility and will be fully and personally liable for your selection and use of the Services;
b) You shall be exclusively responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, receive or use the Services, including, without limitation, hardware devices, software, and other Internet, wireless, broadband, phone or other mobile communication device connection services;
c) You shall be exclusively responsible for ensuring that such equipment or ancillary services are compatible with the Services and you shall be responsible for all charges incurred in connection with use of the Services in connection with all such equipment and ancillary services;
d) You are responsible for all of your activity in connection with the use of Services;
e) You agree to fully comply with all applicable local, provincial, state, national and foreign laws, treaties and regulations in connection with the Services and with any acceptable use policy the Company may publish from time to time;
f) Any fraudulent, vulgar, offensive, harassing, objectionable, abusive, tortuous, criminal or otherwise illegal activity will be grounds for immediate suspension or termination by the Company of this Agreement and/or access to the Services, without notice or liability of any kind to you;
g) Without limitation, you will not post or transmit, or cause to be posted or transmitted, any communication or solicitation or other “phishing”, “pharming” or “whaling” message designed or intended to obtain password, account, personal information, confidential information or private information from any user of the Services or any other third party whatsoever;
h) You acknowledge and agree that the Company has the right to report any and all suspicious or illegal activity to the appropriate legal or police authorities without notice to you; and
i) The Company does not promote, recommend or condone use of the Services during certain activities, such as, without limitation, automobile driving, bicycle riding, skating, skate-boarding or walking, where there is risk of accident, personal injury, property damage or death. You agree not to use the Services during such activities, and warrant, represent and certify that you will not do so.
8. INDEMNIFICATION OF COMPANY. YOU SHALL INDEMNIFY, DEFEND AND FOREVER HOLD THE COMPANY, AND THE COMPANY’S LICENSORS, SUPPLIERS, CONTRACTORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, SUITS AND EXPENSES (INCLUDING LAWYERS’ FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SERVICES OR TO THE CONTENT, OR ANY BREACH OF THIS AGREEMENT BY YOU. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
9. PERSONAL INFORMATION AND COMPANY COMMUNICATIONS. You consent to any collection, use or disclosure of personal information or personally identifiable data required to provide you with access to the Services or to deliver the Services to you, and further to such collection, use or disclosure pursuant to any further consent or “opt in” arrangement between you and the Company.
The operation of the Application includes periodic delivery to you of offers, coupons or other information that may be of interest to you based on your stated preferences or your location. Downloading, installing and/or using the Application does not require you to provide the Company with any personal information but does constitute your consent to receiving such offers, information and coupons in the Application. You may discontinue receiving such information at any time by uninstalling the Application or as long as you do not utilize the Application.
10. INTELLECTUAL PROPERTY RIGHTS. The Services are protected by copyright, trademark, and other intellectual property rights under the laws of the United States of America, Canada and other countries, and international conventions and treaties. Except as expressly permitted herein, you shall abide by all copyright notices and trademark information, and all other restrictions contained in the Services. Without limitation, the Services are protected by copyright as a work, collective work and/or compilation, pursuant to U.S. copyright laws, Canadian copyright and moral rights laws, international conventions, and other intellectual property laws.
11,DISCLAIMER OF WARRANTIES AND CONDITIONS. THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS. THE COMPANY DOES NOT MAKE, AND YOU DO NOT RECEIVE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT REPRESENT OR WARRANT, OR GIVE ANY CONDITION THAT: (I) THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, DEVICE, PHONE, COMPUTER, SYSTEM OR DATA, (II) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) ERRORS OR DEFECTS WILL BE CORRECTED, OR, (V) THE SERVICES OR THE COMPUTERS AND SYSTEMS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES, WORMS, TROJANS, MALICIOUS CODE, SPYWARE, MALWARE OR OTHER HARMFUL COMPONENTS OF ANY KIND. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM A COURSE OF CUSTOM OR TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OR CONDITION OF COMPLIANCE WITH ANY DESCRIPTION, OR ANY IMPLIED WARRANTY OR CONDITION OF NON-INFRINGEMENT, VIOLATION AND/OR NON-MISAPPROPRIATION OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY THE COMPANY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
12. LIMITATION OF LIABILITY. NEITHER THE COMPANY NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, CONTRACTORS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES SHALL BE LIABLE TO YOU OR ANYONE CLAIMING THROUGH YOU FOR ANY LOSS OF PROFITS OR REVENUE, DAMAGE TO PROPERTY OR PERSON, LOSS OR INACCURACY OF DATA OR DETRIMENTAL RELIANCE THEREON, FAILURE TO REALIZE EXPECTED RESULTS, REVENUES OR SAVINGS, ECONOMIC LOSS OF ANY KIND, OR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), RESULTING FROM YOUR OR ANY THIRD PARTY’S ACCESS TO, RELIANCE ON, OR USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES, WHETHER BASED ON OR IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE FOREGOING SHALL APPLY WHETHER OR NOT THE COMPANY KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR HAS BEEN ADVISED OF SUCH POSSIBILITY, OR SUCH POSSIBILITY IS REASONABLY FORESEEABLE. THE COMPANY SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS IN THE SERVICES GENERALLY OR SPECIFICALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN OR SUPPLIED SUBSEQUENTLY BY AGREEMENT BETWEEN YOU AND THE COMPANY. YOU AGREE THAT, IN ALL CASES, ANY CLAIM BY YOU FOR DAMAGES AGAINST THE COMPANY ARISING FROM ANY ACCESS TO, USE OF OR RELIANCE ON THE SERVICES, OR OTHERWISE ARISING UNDER THIS AGREEMENT OR OTHERWISE, SHALL BE LIMITED TO YOUR PROVABLE DIRECT DAMAGES IN THE MAXIMUM AGGREGATE SUM OF ONE HUNDRED DOLLARS ($100.00) IN LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
If you have a dispute with one or more users, you release Company (and Company’s officers, directors, agents, affiliates and employees) from claims, demands, and damages (direct and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
13. LINKS. The Services may include links to third party products, services, resources or websites. The Company has no control over such third parties. Any and all such links are provided to you as a convenience only, without any warranty, condition, guarantee or representation by the Company whatsoever. You use or access any such links solely at your own risk.
14. GOVERNING LAW. This Agreement shall in all cases be deemed an Agreement made in the province of Ontario, Canada regardless of your place of residence, domicile or physical location, where the Application was used, accessed or downloaded; and where the Services were received from or provided to you. All questions concerning the validity, construction and operation of this Agreement and the performance of the obligations of the Parties hereunder shall be governed by the laws of the Province of Ontario and the laws of Canada applicable in Ontario. You irrevocably attorn to the non-exclusive jurisdiction of the Ontario Superior Court of Justice, or its successor, without regard to its conflicts of laws rules, and promise and undertake to bring no action or proceedings in any other court whatsoever. You agree that you will not commence any action as a class action, or seek to have any action to which you are a party certified as a class action, or join in any class action as a party. You agree that any Judgment or Order of a court of competent jurisdiction shall be fully registrable and enforceable against you in your jurisdiction of residence, location or domicile. Notwithstanding the foregoing, in the event of breach of this Agreement by you requiring the Company to seek injunctive or other equitable relief, the Company shall be entitled to seek such injunctive relief in any court of competent jurisdiction without the necessity or requirement of posting bond or undertaking as to damages or showing that money damages are not an adequate remedy. In the event that your place of residence, domicile, physical location or jurisdiction does not recognize or permit enforcement of the foregoing, you may not use the Services.
© Breaking Data International Corp. January 2014