By using CELAWARE applications, you agree to the following terms and conditions (the “Agreement”) governing your use of CELAWARE’s online service (the “Service”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions herein, in which case the terms “you” or “your” shall refer to such entity.
Definitions
As used in this Agreement and in any Order Forms, Estimates or Contracts now or hereafter associated herewith:
“Agreement” means these online terms of use, any Order Forms and any materials available on the CELAWARE website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by CELAWARE from time to time in its sole discretion;
“Content” means the information, documents, software, products and services contained or made available to you in the course of using the Service;
“Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“Order Form(s)”, “Estimates” and “Contracts” means the form evidencing the initial subscription for the Service and any subsequent order forms, specifying, among other things, the services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such form, the terms of this Agreement shall prevail);
“Service(s)” means the specific applications of CELAWARE's services identified during the ordering process, developed, operated, and maintained by CELAWARE, accessible via https://app.celaware.com/user_sessions/new or another designated web site or IP address, or ancillary services rendered to you by CELAWARE, to which you are being granted access under this Agreement.
License Grant & Restrictions
CELAWARE grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by CELAWARE. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; or (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features,
functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
Account Information and Data
CELAWARE does not own any data, information or material that you submit to the Service in the course of using the Service. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and CELAWARE shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), CELAWARE will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. CELAWARE reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment.
Upon termination for cause, your right to access or use Customer Data immediately ceases, and CELAWARE shall have no obligation to maintain or forward any Customer Data.
Access to Client Information
You grant permission to CELAWARE to access employee information related to mobile telephony and data use for the purposes of compiling the information required for the Service. This use also includes the information that CELAWARE accesses through TELUS’ MyTELUS on line data and billing information site. You and your organization agree and have agreed to provide CELAWARE and its setup employees; your MyTELUS user name and password. If that Password and User name ever change, CELAWARE reserves the right to contact you and/or the individual(s) responsible and authorized for your organizations billing; the new user name and Password.
Intellectual Property Ownership
CELAWARE alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Content and the Service.
Charges and Payment of Fees
CELAWARE is available to all SMART-CELL Communications Inc. customers who demand/require or desire it at no financial charge. Should specific requirements and/or development be required to your specific organization, CELAWARE will provide the quote required for that specific development piece.
Agreement Term
This Agreement is effective as of your acceptance of this Agreement and depending on your needs, as determined by CELAWARE and you, this Agreement will remain in effect for one of the following terms: (a) month to month; (b) 12 months; (c) 24 months or (d) 36 months (“Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at CELAWARE's then current fees.
Either party may terminate this Agreement, effective only upon the expiration of the then current term, by notifying the other party in writing at least thirty (30) business days prior to the start of the
following term. You agree and acknowledge that CELAWARE has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
Termination for Cause
Any breach of your payment obligations or unauthorized use of the Service will be deemed a material breach of this Agreement. CELAWARE, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that CELAWARE has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. CELAWARE represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the CELAWARE help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
Limitation on Liability
Under no circumstances shall CELAWARE be liable to you or any third party for any incidental, special, consequential, exemplary, or other direct or indirect damages that result from the use of, or the inability to use, the Service, even if CELAWARE has been advised of the possibility of such damages.
In the event you decide to change carriers during the term of this Agreement, CELAWARE will not be liable to you for any damages that may result from your decision to change carriers.
Indemnification
You shall indemnify and hold CELAWARE, and, if applicable, its parent organization, subsidiaries, affiliates, officers, directors, employees, attorneys and agents, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you of this Agreement, provided in any such case that CELAWARE (a) gives written notice of the claim promptly to you;
(b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release CELAWARE of all liability and such settlement does not affect CELAWARE's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Disclaimer of Warranties
CELAWARE makes no representation, warranty or guaranty as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the Service or any Content. CELAWARE does not represent or warrant that
- the use of the Service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;
- the service will meet your requirements or expectations;
- any stored data will be accurate or reliable;
- the quality of any products, services, information or other material purchased or obtained through the Service will meet your requirements or expectations;
- errors or defects will be corrected; or
- the Service or the servers that make the Service available are free of viruses or other harmful components.
The Service and all content is provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether express or implied, statutory or otherwise, are hereby disclaimed to the maximum extent permitted by applicable law by CELAWARE.
CELAWARE’s services may be subject to limitations, delays and other inherent problems in the use of the Internet and electronic communications. CELAWARE is not responsible for any delays, delivery failures or other damage resulting from such problems.
CELAWARE is not affiliated with any cellular provider and the Service is not intended to be used as a billing replacement. Invoices provided by your cellular provider will supersede CELAWARE interpretation of your wireless usage.
CELAWARE reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
This Agreement may not be assigned by you without the prior written approval of CELAWARE but may be assigned without your consent by CELAWARE to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
This Agreement shall be governed by Ontario law and controlling Canadian federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts located in Ontario. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of CELAWARE to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by CELAWARE in writing.
