ECHOSEC SYSTEMS LTD. (“ECHOSEC”)
GENERAL TERMS AND CONDITIONS OF SERVICE
BY USING THE SERVICE YOU INDICATE YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN DO NOT SUBSCRIBE TO OR USE THE SERVICE OR ANY OF ITS CONTENT OR FEATURES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND SUCH ORGANIZATION OR ENTITY, AND “YOU” AND “YOUR” SHALL REFER TO SUCH ORGANIZATION OR ENTITY.
The following General Terms and Conditions of Service (this “Agreement”) govern YOUR use of the ECHOSEC website, the ECHOSEC application programming interface, any updates and releases, any other application or service offered by ECHOSEC from time to time (collectively, the “Service”). This Agreement includes by reference: (i) ECHOSEC’s Privacy Statement provided to YOU in the Service available on the website or provided to YOU otherwise; (ii) any Additional Terms and Conditions, which may include those from third parties; and any terms provided separately to YOU for the Service, including product or program terms, ordering, activation, and payment terms.
1. YOUR RIGHT TO USE THE SERVICE
1.1 Software as a Service. The Service is protected by copyright, trade secret, and other intellectual property laws. YOU are only granted the right to use the Service to access and use all material, information and technology offered as part of the Service, including without limitation, reports, graphics, text, images and logos, algorithms, processes, user interfaces, designs and know-how (the “Content”), for the limited purpose of viewing, downloading (for caching purposes only), and printing pages from the Service for YOUR personal use. ECHOSEC reserves all other rights in the Service. Until termination of this Agreement and as long as YOU meet any applicable payment obligations and comply with this Agreement, ECHOSEC grants to YOU a personal, limited, nonexclusive, nontransferable right and license to use the Service.
1.2 Agreement Term. This Agreement will commence upon YOUR completion of the online subscription process (the “Effective Date”) and will continue in full force and effect until otherwise terminated pursuant to the provisions hereof.
1.3 Restrictions. YOU agree not to use, nor permit any third party to use, the Service or Content in a manner that violates any applicable law, regulation or this Agreement. Without limiting the generality of the foregoing, YOU agree YOU will not: (i) provide access to or give any part of the Service to any third party; (ii) alter, modify, duplicate, translate, de-compile, reverse engineer, or attempt to recreate the Service or the Content, in whole or in part; (iii) sell, trade or resell the Service; (iv) build an identical product to the Service or a product with similar ideas, features and functionality as the Service; (v) copy any ideas, features or functions of the Service; (vi) use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service; (vii) use the Service to copy, store, host, transmit, send, use, publish or distribute any material that consists of or is linked to any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit, or other malicious software; or (viii) use the Service in any way which is unlawful, illegal, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.
1.4 Content. YOU agree to retain, on all copies of any Content YOU print or download, all copyright and other proprietary notices contained in the Content. The Service and the Content are protected by Canadian and worldwide copyright laws and treaty provisions. YOU agree to comply with all copyright laws worldwide in YOUR use of the Service and the Content and to prevent any unauthorized copying of the Content. Except as expressly provided herein, ECHOSEC does not grant any express or implied right or license to YOU under any intellectual property right, including under any patent, trade-mark, copyright, trade secret or confidential information of ECHOSEC or its licensors.
1.5 Reservation of Rights. ECHOSEC reserves the right to restrict access to portions of the Service, or the entire Service, in its sole and absolute discretion. If ECHOSEC provides YOU with a User ID and password to enable YOU to access restricted areas of the Service or Content, YOU shall ensure that the User ID and password are kept confidential. ECHOSEC may disable YOUR account, User ID, and password in its sole and absolute discretion without notice or explanation.
2. QUERY DATA
2.1 Query Data. In the course of using the Service, YOU will: (a) formulate and enter search queries into the Service; and (b) view, download, and/or print the resulting query information, data and material through the Service (collectively, the “Query Data”). YOU agree to use the Query Data in compliance with all applicable laws, rules and regulations. Without limiting the generality of the foregoing, YOU shall not conduct any systematic or automated data collection activities using the Service, including without limitation, scraping, data mining, data extraction, or data harvesting, without ECHOSEC’s express written consent. YOU acknowledge and agree that ECHOSEC may maintain a record of the search queries that YOU entered into the Service, but that ECHOSEC will not maintain any record of the Query Data yielded by such search queries.
2.2 Compliance with Privacy Laws. YOU represent and warrant that YOU have obtained the consent to use any Personal Information (as that term is defined in the Personal Information Protection and Electronic Documents Act (S.C. 2000, c.5) (“PIPEDA”) and all other applicable privacy legislation) contained in the Query Data from the person to whom the Personal Information pertains, and that YOU have complied with all relevant privacy laws in collecting, using, or disclosing such Personal Information.
3.1 Payment Terms. For Service offered on a payment or subscription basis, the following terms apply if YOU are the User paying for the Service, unless ECHOSEC notifies YOU otherwise in writing. This Agreement also incorporates by reference and includes program ordering and payment terms provided to YOU on the website for the Service:
(a) Payments will be billed to YOU in U.S. dollars;
(b) YOUR account will be debited when YOU subscribe and provide YOUR payment information, unless stated otherwise in the program ordering or payment terms on the website for the Service;
(c) YOU must pay with one of the following:
(i) a valid credit card acceptable to ECHOSEC;
(ii) a valid debit card acceptable to ECHOSEC;
(iii) sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or
(iv) by another payment option ECHOSEC provides to YOU in writing;
(d) If YOUR payment and registration information is not accurate, current, and complete and YOU do not notify us promptly when such information changes, we may suspend or terminate YOUR account and refuse any use of the Service;
(e) If YOU do not notify us of updates to YOUR payment method (e.g., credit card expiration date), to avoid interruption of YOUR service, we may participate in programs supported by YOUR card provider (e.g., updater Service, recurring billing programs, etc.) to try to update YOUR payment information, and YOU authorize us to continue billing YOUR account with the updated information that we obtain;
(f) ECHOSEC will automatically renew YOUR monthly, or annual Service at the then-current rates, unless the Service are cancelled or terminated under this Agreement;
(g) ECHOSEC reserves the right to amend its fee schedule at any time upon 30 days advance notice.
3.2 Purchase Taxes. All fees and other charges specified in this Agreement are exclusive of all applicable goods and service taxes and any other taxes imposed or levied by any government or government agency, including sales or use taxes (the “Purchase Taxes”). YOU will pay all Purchase Taxes, other than taxes on ECHOSEC’s net income, as a result of the transactions contemplated by this Agreement.
4. YOUR RESPONSIBILITIES
4.1 Account. YOU are responsible for all of the activity associated with YOUR account and YOU agree to notify ECHOSEC immediately in the event of any unauthorized use of YOUR account, User ID, or password or if YOU suspect YOUR account, User ID or password has been compromised in any way. YOU agree not to misrepresent yourself in order to gain access to the Service. YOU shall not knowingly allow competitors of ECHOSEC to access the Service. YOU are responsible for advising ECHOSEC of any change in YOUR billing or contact information.
4.2 Compliance with Applicable Laws. YOU shall abide by all applicable local, provincial, state and national laws and all relevant treaties and directives in YOUR use of the Service.
4.4 Unauthorized Use. YOU may not use the Service or the Content to:
(a) profile or discriminate against a person based on gender, gender identity, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
(b) violate or in any way assist to violate basic human rights or civil liberties. For certainty, YOU may not use the Service or the Content to create databases of identifying information for any organization, governmental authority or any other group to abrogate any human rights, civil rights, or civil liberties of individuals on the basis of race, gender or gender identity, sexual orientation, religion, or national origin;
(c) bully, intimidate, or harass any person;
(d) disseminate content that is hate speech, threatening, pornographic, incites violence, contains nudity, or graphic or gratuitous violence; or
(e) engage in any other activity reasonably deemed by ECHOSEC to conflict with the intention of this Agreement.
5.1 Ownership of Service. ECHOSEC and its licensors own all right, title and interest in and to the Service and the Content, including without limitation, all copyrights, trade secrets, patents, and other intellectual property rights. Upon termination of this Agreement unless otherwise provided herein, all of YOUR rights in connection with the Service and the Content, including but not limited to the right to access and use the Service and the Content, will terminate.
5.2 Trade-Marks. The trade-marks, logos and company names of ECHOSEC or any of its affiliates and licensors used as part of the Service and the Content may not be copied, imitated or used, in whole or in part, without the prior written consent of ECHOSEC or any such affiliate or licensor. Other products, Service logos and company names mentioned as part of the Service and in the Content may be the trade-marks of their respective owners.
5.3 Proprietary Notices. YOU agree not to alter, remove, deface or destroy any copyright, trade-mark or proprietary markings or confidential legends placed upon or contained in the Service and the Content or in or on any related material.
6.1 Service. ECHOSEC warrants that the Service is designed to and shall operate in substantial conformity with the specifications set out in the user documentation.
6.2 Content. The Content may contain inaccuracies and typographical errors. ECHOSEC makes no representation or warranty regarding the accuracy or completeness of the Content or information accessible while using the Service, or the reliability of any advice, opinion, statement or other information displayed or distributed through the Service. YOU acknowledge that any reliance on any of the foregoing and YOUR use of the Service and the Content shall be at YOUR sole risk. ECHOSEC reserves the right, in its sole discretion, to correct any errors or omissions in any part of the Service or in any portion of the Content. ECHOSEC may make any other changes to the Service and the Content at any time without notice.
6.3 General Warranty. ECHOSEC warrants that (a) ECHOSEC has the right to enter into this Agreement; (b) to ECHOSEC’s knowledge, neither the Service nor the Content infringes upon the Proprietary Rights of any third party; (d) to ECHOSEC’s knowledge, there are no liens, encumbrances or claims pending or threatened against ECHOSEC or that adversely relate to the rights or licenses granted in this Agreement or to the Service and the Content; and, (d) subject to the standard conditions applicable to shrink wrap software and other foundational software used in the creation of, or required in conjunction with, the Service, no licenses, permission or releases of third party rights are necessary for YOUR use of the Service in accordance with the terms of this Agreement. For purposes of this Agreement, “Proprietary Rights” means any or all intellectual property and other property or proprietary rights, including, without limitation, patents, copyrights, trade secrets and trademarks.
6.4 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES IN THIS SECTION 6, THE SERVICE AND THE CONTENT ARE PROVIDED “AS IS” AND ECHOSEC AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ECHOSEC DOES NOT WARRANT THAT THE SERVICE AND THE CONTENT WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE AND/OR THE CONTENT WILL BE FREE FROM ERRORS OR FUNCTION WITHOUT INTERRUPTION, THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE NOR THAT ANY QUERY DATA CAN BE RESTORED FROM ANY PARTICULAR BACKUP PROCEDURE. ECHOSEC DOES NOT WARRANT THAT USE OF THE SERVICE WILL ENABLE YOU TO ACHIEVE ANY PARTICULAR RESULT OR RESULTS IN YOUR BUSINESS OPERATIONS.
7. LIMITATION OF LIABILITY
7.1 IN NO EVENT WILL ECHOSEC BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, COST OF COVER, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE CONTENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN ADDITION, EXCEPT WITH RESPECT TO CLAIMS BASED ON WILFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL ECHOSEC BE LIABLE FOR ANY DAMAGES OF ANY KIND GREATER THAN THE AMOUNTS PAID TO ECHOSEC HEREUNDER. ECHOSEC WILL NOT BE LIABLE FOR ANY DELAYS OR DAMAGES ATTRIBUTABLE TO PROBLEMS INHERENT IN INTERNET AND ELECTRONIC COMMUNICATION NOR SHALL IT BE LIABLE FOR DELIVERING INCORRECT OR INACCURATE QUERY SEARCH REPORTS. THESE LIMITATIONS WILL APPLY EVEN IF ECHOSEC HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION SHALL APPLY EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OF THIS PROVISION.
8.1 Indemnification by ECHOSEC. ECHOSEC shall indemnify, defend and hold YOU harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from any claimed infringement or violation by ECHOSEC of any Proprietary Right with respect to the Service and the Content; provided, however, that the foregoing notwithstanding, ECHOSEC’s obligation to indemnify will not apply to an infringement or violation that is attributable to any unauthorized use, access or modification of the Service by YOU or YOUR employees, agents or customers.
8.2 Cooperation. Notwithstanding Section 8.1 of this Agreement, ECHOSEC is under no obligation to indemnify and hold YOU harmless unless (a) ECHOSEC receives notice of the suit or claim from YOU and is furnished with a copy of each communication, notice or other action relating to said claim promptly after YOU receive such notice and each such communication; provided that, failure to deliver timely notice shall not relieve ECHOSEC of its obligations hereunder unless ECHOSEC is materially prejudiced by such failure; (b) ECHOSEC will have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at ECHOSECs expense; and (c) YOU will provide reasonable information and assistance requested by ECHOSEC in connection with such claim or suit, at ECHOSEC’s cost and expense.
8.3 Indemnification by YOU. YOU shall indemnify, defend and hold ECHOSEC harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from (a) any allegation that YOU have engaged in conduct, which if true would breach YOUR warranties or obligations under this Agreement; (b) YOUR negligent or willful misconduct; or (c) any violation by YOU of any privacy laws, regulations and directives relating to the collection, use or disclosure of any Query Data. ECHOSEC reserves the right to participate in the defense of any such claim and to be represented by counsel of its choice.
9.1 Termination Upon Default. The non-breaching party may terminate this Agreement in the event that the other party materially defaults in performing any obligation under this Agreement and such default continues and is not remedied for a period of five (5) days following written notice of default.
9.2 Termination Upon Insolvency. This Agreement will terminate, effective upon delivery of written notice by a party hereto, (a) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party, (b) upon the making of an assignment for the benefit of creditors by the other party, or (c) upon the dissolution of the other party.
9.3 Termination for Convenience. Notwithstanding anything to the contrary contained in this Agreement, either party may terminate this Agreement for convenience by providing the other party with at least thirty (30) days notice.
9.4 Survival of Certain Terms. All provisions of this Agreement reasonably required to survive termination based on the terms of this Agreement shall survive termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement.
9.5 Effect of Termination. Upon termination of this Agreement for any reason YOUR access to the Service will end immediately and YOUR account will be disabled.
10. CONFIDENTIAL INFORMATION
10.1 Neither party shall use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other party will use the highest commercially reasonable degree of care to protect that Confidential Information. The Service and the Content, including methods, ideas or concepts utilized therein, and all information identified by a disclosing party as proprietary or confidential (“Confidential Information”) will remain the sole property of such disclosing party, and will not be used or disclosed to any third party without the express written consent of the disclosing party (except to employees or consultants who are bound by a written agreement with such party to maintain the confidentiality of such Confidential Information in a manner consistent with this provision). Items shall not be considered to be Confidential Information if they are (a) available to the public other than by a breach of this Agreement or an agreement with the disclosing party, (b) rightfully received from a third party not in breach of an obligation of confidentiality, (c) independently developed by employees of recipient without access to the Confidential Information of the disclosing party, (d) rightfully known to the recipient at the time of disclosure, or (e) produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
11.1 Notices. Any notice required or permitted hereunder will be in writing and may be delivered to Echosec Systems Ltd., c/o 26 Bastion Square, 3rd Floor, Victoria, BC, Canada, V8W 1H9.
11.2 Assignment. This Agreement may not be transferred or assigned, in whole or in part, by either party either voluntarily or by operation of law without the prior written consent of the other party, which consent shall not be unreasonably withheld.
11.3 Governing Law; Arbitration. This Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. Except for disputes for which injunctive relief is sought (for example, to prevent the unauthorized use or disclosure of proprietary materials or information) the following procedures shall be used to resolve any dispute arising out of or in connection with this Agreement. Promptly after the written request of either party, each of the parties shall appoint a designated representative to meet in person or by telephone to attempt in good faith to resolve any dispute. If the designated representatives do not resolve the dispute within ten (10) days of such request, then an executive officer of each party shall meet in person or by telephone to review and attempt to resolve the dispute in good faith. The executive officers shall have ten (10) days to attempt to resolve the dispute. Any disputes that are not otherwise resolved by the parties shall be submitted to binding arbitration in Vancouver, British Columbia in accordance with the Arbitration Act (British Columbia) (the “Act”). Before entering into arbitration, the parties shall each appoint an arbitrator, and these two arbitrators shall select a third arbitrator to be a member of the arbitration panel. Should the two arbitrators not be able to agree on a choice of the third arbitrator, then the parties shall defer to the procedure for selection of an arbitrator under the Act. None of the arbitrators shall be officers or employees of the parties. Each such arbitrator shall be a lawyer having experience and familiarity with information technology disputes. The arbitrators shall have the right to award costs, fees and expenses, including but not limited to the arbitrators’ fees and reasonable lawyers’ fees, to the prevailing party. The parties will jointly pay arbitration costs pending a final allocation by the arbitrators. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator’s decision shall be final and binding upon the parties.
11.4 Force Majeure. Under no circumstances will either party be liable to the other for any failure to perform its obligations where such failure results from causes beyond that party’s reasonable control.
11.5 Independent Contractors. The relationship of ECHOSEC and YOU established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (a) give either party the power to direct and control the day to-day activities of the other, (b) constitute the parties as legal partners, joint venturers, co owners or otherwise as participants in a joint undertaking, or (c) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of ECHOSEC and YOU are the parties’ sole respective responsibilities.
11.6 Entire Agreement and Waiver. This Agreement and all documents incorporated by reference hereto will constitute the entire agreement between the parties with respect to its subject matter, and all prior agreements, representations, and statements with respect to such subject matter are superseded. This Agreement may be changed by ECHOSEC upon notification to YOU. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such breaches and the waiver of any breach will not act as a waiver of subsequent breaches.