Last Update: September 20th, 2019
Midnight Noise is a mobile app developed by Midnight Noise Inc. (the “Company,” “we,” or “us”), that is made available to you via the Midnight Noise mobile application (the “App”), for which we provide further information at: https://www.midnightnoise.com/ (the “Site,” collectively, with the App, the “Service”). Please read all guidelines made available to you by the Company or our third party suppliers (the “Guidelines”) and these terms and conditions of use as set out below (collectively, with the Guidelines, the “Terms”) carefully before using the Service. The Terms govern your access to and use of this Service, including the messages, information, data, text, software, images and other content that make up this Service (the “Content,” which content is part of this Service). The Terms (in addition to any other terms provided to you at the time of purchase or participation, as applicable) also govern your purchase of any Company merchandise and your participation in any Events (as defined in Section 16). Please note these Terms exempt the Company and others from liability and/or limit our and their liability and contain other important provisions that apply to your use of this Service.
PLEASE NOTE MIDNIGHT NOISE IS NOT A GAME NOR IS IT INTENDED TO PROMOTE OR ENDORSE ANY ILLEGAL OR DISTRACTING ACTIVITY WHILE OPERATING A VEHICLE. WE DO NOT PROMOTE OR ENDORSE ANY USE OF THE SERVICE THAT INFRINGES OR OTHERWISE VIOLATES ANY APPLICABLE LAWS. THE SERVICE IS DEVELOPED PRIMARILY TO ALLOW YOU TO CONNECT WITH OTHER VEHICLE AND MOTORCYCLE OWNERS IN YOUR CITY. NO PERSON OR ENTITY ASSOCIATED WITH THIS SERVICE HAS RECEIVED PAYMENT OR ANYTHING OF VALUE, OR ENTERED INTO ANY AGREEMENT, IN CONNECTION WITH THE USE OF ANY VEHICLE OR ITS RELATED PRODUCTS.
Your use of this Service is conditional on your acceptance of these Terms. By visiting or using this Service you agree on your own behalf, and on behalf of any organization on whose behalf you may act (collectively referred to herein as “you”), to accept and abide by these Terms for each use of and each visit to this Service.
If you do not agree to abide by these Terms, you cannot use this Service or register to receive information about the Service. You agree to have these Terms and any related information made available to you, and to otherwise have communications between you and us occur, electronically.
We have the right, in our sole discretion, to add to, remove, modify or otherwise change any part of these Terms, in whole or in part, at any time. If we exercise this right, the “Last Update” notice at the top of this document shall be amended to reflect the last date of such changes. Changes will be effective as of the date the changes to these Terms are posted to the Service or communicated to you by us. You acknowledge and agree that the Company may, but is not obligate to provide notice to you via the App when we update these Terms. However, it is your responsibility to check these Terms each time you access this Service to determine whether any changes have been made, including by checking the date of the “Last Update” at the top of these Terms. If any change to these Terms is not acceptable to you, you must discontinue your use of this Service immediately and uninstall the App from your mobile device. Your continued use of this Service after any such changes are posted will constitute acceptance of those changes. These Terms apply exclusively to your use of this Service and do not alter the terms or conditions of any other agreement you may have with us.
We may, at any time without notice or liability, and for any reason whatsoever, terminate, change, suspend or discontinue any aspect of this Service, including: (i) changing the availability of, restricting access to, or imposing limits on any or all features or services on, or links to, this Service; (ii) removing, adding, modifying or otherwise changing any fees or charges arising out of use of this Service or any features of this Service; and (iii) removing, adding, modifying or otherwise changing any Events or Content on this Service. We reserve the right, in our sole discretion, to correct any errors or omissions in any portion of this Service at any time without notice, but confirm that we have no duty to do so.
You must be 18 years of age or older in the jurisdiction in which you reside as of the time you register with us.
The Service is NOT intended for children under the age of 18, and they are not permitted to use the Service. We strongly encourage all parents and guardians to monitor the Internet use by their children. If you use the Service, you affirm you are at least 18 years old.
Any mobile application downloaded via a third party store, such as the App Store or Play Store, may be subject to additional terms and conditions applicable to such store. You acknowledge and agree that the owner of such third party store is not a party to these Terms.
3. Limited Licenses
Subject to these terms, you are granted a non-exclusive, non-transferable, non-sub-licensable, revocable, limited right and license to use this Service, including the Content therein accessible through this Service, solely for your own personal use or your business use if you are an Organization (as defined below).
You may not, nor may you cause or assist another to:
⦁ modify, reverse engineer, decompile, create derivative works from, or disassemble this Service for any reason whatsoever, including for the purpose of creating competitive products or services;
⦁ resell any Content or include any Content in or with any product that you create or distribute;
⦁ copy or store any Content onto your own or any other web site or into a database or mobile application, except that (i) you may download, install and store a copy of the App on your mobile device, and (ii) your computer, browser, or mobile device may temporarily store or cache copies of materials being accessed and viewed;
⦁ use this Service in any manner that could damage, disable, overburden, impair, interfere with the security of, negatively affect the functioning of, or otherwise abuse, this Service or any other services, system resources, accounts, servers, networks, affiliated or linked sites connected to or accessible through this Service (including without limitation uploading, posting or otherwise transmitting on this Service any computer viruses, trojan horses, worms or other files or computer programs which are potentially harmful, disruptive or destructive or that may impose an unreasonable or disproportionately large load on the infrastructure of this Service);
⦁ use this Service for commercial purposes or activities, including, without limitation, sending unauthorized or unsolicited junk mail, spam, chain letters, pyramid schemes or any other form of solicitation;
⦁ use any robot, spider or other automatic program or device, or manual process to monitor, copy, summarize, or otherwise extract information from this Service or the Content in whole or in part;
⦁ post any content to the Service that may infringe upon any third party copyright, registered patent(s), proprietary rights or Third Party Marks (as defined in Section 9);
⦁ use the Service with multiple accounts for the Service;
⦁ share your User (as defined in Section 7) account with any other person;
⦁ use any techniques to alter or falsify your device’s location (for example through GPS spoofing);
⦁ sell or trade your User (as defined in Section 7) account to any other person;
⦁ use this Service in any manner that may dilute or depreciate our name or reputation, our Marks (as defined in Section 9) or our affiliates or associates; or
⦁ interfere with any other persons’ use and enjoyment of this Service or of the Internet generally.
To the extent you are in breach of your obligations under these Terms, the Company may investigate occurrences which may involve violations of applicable laws and co-operate with law enforcement authorities in prosecuting persons who are involved in such violations. We reserve the right at all times to disclose any information (including without limitation your Personal Information or your identity) regarding your usage of this Service (including any perceived violations of applicable law), in each case as may be permitted by or required to satisfy applicable law.
4. GPS Services
The Services may allow you to use certain navigation or GPS features. When you use such features of the Services including any map data, traffic data, directions, and other Content, you may find that actual conditions differ from those set out in the Services or the Content. Exercise your independent judgment and use the Services at your own risk and with caution. You are responsible at all times for your conduct and its consequences when using the Services.
5. Safety and Appropriate Use
⦁ While you are using the Service, please be aware of your surroundings, drive and communicate safely. You agree that your use of the Service is at your own risk, and that you will not use the Service to violate any applicable law, regulation, Event policies, or instructions as outlined in these Terms or the App, and you will not encourage or enable any other individual to do so.
⦁ Further, you agree that in conjunction with your use of the Service you will not make available any unlawful, inappropriate, or commercial Content. You agree that you will not submit inaccurate, misleading, or inappropriate Content, including data submissions, edits, or removal requests.
⦁ When using the Service please exercise caution and appropriate judgment. The Company does not intend for the Services to be used as a distraction while operating a vehicle. You agree that at all times when using the Service you will exercise caution and will follow all laws applicable to you and the operation of your vehicle.
6. Events and Interacting with other Users
You agree that in conjunction with your use of the Service, you will maintain safe and appropriate contact with other Users and other people in the real world. You will not harass threaten or otherwise violate the legal rights of others. You will not trespass, or in any manner attempt to gain or gain access to any property or location where you do not have a right or permission to be, and will not otherwise engage in any activity that may result in injury, death, property damage or loss, nuisance, or liability of any kind.
7. Membership and Accounts
To use the App (to be a “User”), you must download the App and register for a Midnight Noise account. To download the App and to become a User:
⦁ You must download the App from our Site or through a third party service provider (such as the App Store or Play store) by providing your real name, valid email address and any other information requested by us or such third party service provider. Any Personal Information (as defined in our Privacy Statement) which the Company collects via the Service or is provided to the Company by a third party service provider is subject to our Privacy Statement (as defined in Section 11). You hereby acknowledge that the collection, use and disclosure of your Personal Information pursuant to the Privacy Statement is for reasonable and appropriate purposes, and is with your knowledge and consent.
⦁ Upon downloading the App to your device, you must either: (i) create a unique and secure User name and password; or (ii) login via the third party service providers set out on the login page of the App, and each case enter your vehicle details and, the country, city and state/province you reside in. At all times during your use of this Service, you must provide complete and accurate information to us and notify us if your information changes.
⦁ You may not share your User name or password with any other person. You are responsible for all activity occurring under your User account (including any fraud or counterfeiting of fiat currency), and shall abide by all applicable local, state, provincial, national and foreign laws, treaties and regulations in connection with your use of the Service.
⦁ You shall: (i) notify us immediately of any unauthorized use of any password or User account or any other known or suspected breach of security; and (ii) not impersonate another person or provide false identity information to gain access to or use the Service.
⦁ Without limitation, we may immediately remove or suspend any User account that breaches any provisions of this Terms (including Section 3(c)) or falls, or is suspected of falling, under the scope of the foregoing paragraphs 7(d) (i) or (ii).
⦁ If you become aware of an unauthorized access to your account, or ought to have become aware of such access, you must change your password and notify us immediately. You agree to notify us promptly of any unauthorized use of your password and you will remain liable for any use of this Service to the extent permitted by law.
⦁ You must not use this Service in any manner that is unlawful (including by accessing this Service from any location where such access may be illegal or prohibited), unethical, indecent, offensive, defamatory, derogatory, fraudulent, deceptive, harmful, abusive, threatening, vulgar, profane, pornographic, obscene, sexually explicit, sexist, racist, hateful, offensive, harassing, invasive of the privacy rights of others (this includes the posting of any materials that depict, encourage, indicate, advocate or tend to incite any such conduct), or is otherwise objectionable or which does not respect the legal rights and interests of others.
Following any or all of the steps set out in this Section 7 or providing your information to the Company does not guarantee that you will be granted access to use the Service or that you will able to effectively use the Service.
8. Transaction Terms
⦁ Access to certain services on the App is contingent upon your payment of fees, and such fees are set out prior to you making any such in-App purchases (as amended from time to time). Please note that prices and charges associated with this App are set out in the currency of the jurisdiction where you download the App.
⦁ Payments (as well as any processing fee charged to the Company by our third party payment processor, if applicable) will be processed on a per transaction basis, on behalf of the Company by a third party payment processor using their secure site. Upon submitting your order your information will be sent to the third party payment processor. Personal Information that you submit during the payment process is subject to our Privacy Statement and that of the third party payment processor.
⦁ You are responsible for and agree to pay promptly, all charges to your User account, including applicable taxes on use by you or anyone you allow to use your account and password to download the App. You agree and accept responsibility for keeping all your account information current, including address, payment information, telephone number, and any contact details.
⦁ The Company reserves the right to change the prices, fees and charges associated with the Service at any time and from time to time without any notice or any liability to you or any other person. Our third party payment processor reserves the right to limit the Service provided to any User. The Company also reserves the right at any time to reject, cancel or terminate any transaction.
9. Proprietary Rights
This Service is protected by Canadian copyright laws and treaty provisions. Any unauthorized copying, redistribution, reproduction or modification of this Service (including any element of the Content) by any person may be a violation of trade-mark and/or copyright laws and could subject such person to legal action. You agree to comply with all copyright laws worldwide in your use of this Service and to prevent any unauthorized copying, redistribution, reproduction or modification of this Service or any of the Content.
Certain names, graphics, logos, icons, designs, words, titles and phrases on this Service, including without limitation “Midnight Noise,” constitute trade-marks, trade names, trade dress and associated products and services of the Company or its affiliates (the “Marks”) or constitute trade-marks, trade names, trade dress and associated products and services of the Company suppliers or other third parties (the “Third Party Marks”) and are protected in Canada and internationally and their display on this Service does not convey or create any licence or other rights in the Marks or the Third Party Marks. Any use of the Marks or the Third Party Marks, in whole or in part, without prior written authorization of the Company or such third party, as applicable, is strictly prohibited.
10. Linked Services
Certain links on this Service or in User Content made or shared through this Service may take you to other web sites that are not owned or operated by the Company. the Company provides these links only as a convenience. the Company is not responsible for the content of any such linked web sites. the Company makes no representation or warranty regarding, and does not endorse, such linked web sites, the information or other content appearing thereon or any of the products or services available on or through such web sites. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements. We welcome you to link to this Service. However, you agree that if you link to this Service your website shall not (a) alter the visual presentation of this Service; (b) imply that the Company or Midnight Noise is endorsing you or any other person, or your or such other person’s products or services; (c) imply an affiliation between you or any other person, or your or such other person’s products or services, and the Company or Midnight Noise without the prior written consent of the Company; (d) misrepresent the relationship of you or any other person with the Company or Midnight Noise or present false, misleading or otherwise damaging information or impressions about the Company or Midnight Noise or any of its products or services; or (e) contain materials that may be illegal or interpreted as distasteful, harmful, offensive, or inaccurate.
You acknowledge and agree that in no event will the Company provide any form of remuneration for any links you may make to this Service.
11. Privacy Statement
To provide the Service, we need to collect information about you, and we only use your information where we have a legal basis to do so. Any Personal Information which the Company collects via this Service or indirectly via third party service provider is subject to the privacy statement available at https://midnightnoise.com/pages/privacy-policy (the “Privacy Statement”). As such, you hereby consent and agree to the collection, use, storage and disclosure of your information in accordance with our Privacy Statement. Our Privacy Statement does not govern use of information that you provide to third parties, such as Meet organizers and other Users of this Service.
In addition, when you interact with this Service, you agree that information about you and your use of this Service, including but not limited to, the type of device, your mobile carrier, your internet access provider, your physical location, and/or web pages containing plugins that load in your browser may be communicated to us.
12. Location Based Tracking
You acknowledge and agree that your geo-location information must be provided via your device in order for the Service to function effectively. You acknowledge and agree that: (a) your geo-location information will be monitored and tracked by the App when you are logged into the App; and (b) the approximate location of your vehicle will be displayed on the App during your use of same. In addition, the Company may monitor, track and share your geo-location information obtained by the App for safety, security, technical, marketing and commercial purposes, including to provide and improve the Services and any of our other products and services. If you choose to share your geo-location with any other Users, you acknowledge and voluntarily choose to assume the risk associated with doing so.
13. User Communications
Any non-identifiable information gathered by us through your use of this Service may be used by us for our own marketing, promotional and product development purposes and more specifically may be stored in a database and used by us to identify, customize and personalize user access, and assess utilization of this Service. Such information may be shared with our affiliates, suppliers, licensors, partners and clients in furtherance of the forgoing purposes.
14. User Submissions (solicited and unsolicited) and Content
⦁ Subject to any applicable law and the requirements of our Privacy Statement:
⦁ We do not wish to obtain unsolicited ideas, including ideas for new advertising campaigns, new promotions, new or improved products, goods, services or technologies, product enhancements, processes, materials, marketing plans, or new product names. Accordingly, please do not send any unsolicited ideas, suggestions or other materials (“Submissions”) to us.
⦁ Any communications sent by you to us via this Service or otherwise, including Submissions, whether solicited by us or otherwise, are on a non-confidential basis (other than Personal Information which is covered under our Privacy Statement and User Content), and we are free to use and disclose the content of any such communication, including without limitation any ideas, inventions, concepts, techniques or know-how disclosed therein, for any purpose including without limitation developing, manufacturing and/or marketing goods and services. You agree to not assert any ownership right of any kind in such communications (including without limitation copyright, trade-mark, patent, trade secret, unfair competition, moral rights, or implied contract) and you hereby waive such moral rights in favour of the Company and its affiliates, licensees, successors and assignees. You also acknowledge that you have no right to receive any financial or other consideration in connection with such communication.
⦁ We are not obliged to monitor, screen, police or edit your use of this Service, including any User Content or other content you or others may contribute to this Service, although we may choose to do so in our sole discretion. We will respond as we consider appropriate, in our sole discretion, if we become aware of any inappropriate uses of this Service, including without limitation use that constitute copyright infringement.
15. User Content
⦁ “User Content” means any content including, messages, information, data, text, software, images and other content a User of the Service provides to the Company or otherwise makes available through Service.
⦁ The Company does not claim ownership rights in User Content and nothing in these Terms restricts any rights that you may have to use and exploit your User Content. By making any User Content available through the Service you grant to the Company a nonexclusive, transferable, sublicensable, worldwide, royalty-free, perpetual license (or, if not permitted under applicable law, a license for the whole duration, including for any extension thereof, of all relevant rights under any applicable law), to use, copy, modify, create derivative works based upon, publicly display, publicly perform, market, promote and distribute your User Content in connection with operating and providing the Service and Content to you and to others. By accepting these terms, you allow The Company to benefit freely from the above rights, including but not limited to:
⦁ The right to reproduce User Content by any means and in any form.
⦁ The right to publicly or privately broadcast or make available the User Content (or any product incorporating the User Content), in return for payment or free of charge in all places by any means or process known or unknown at the present time, and in particular via the Internet, pay per view, pay per play, theatrical or television broadcasting, and print.
⦁ The right to use the User Content for demonstration, promotion and advertising for the Company or any of its services.
⦁ The right to produce or order the production of any new product or service from the User Content or from any product incorporating or exploiting the User Content, either reproduced as it stands or modified by the Company or by any outside party of its choice.
⦁ You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Service, nor any use of your User Content by the Company on or through the Service will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. To the extent permitted by applicable law, you also agree that you will not exercise your moral rights (or equivalent rights under applicable laws), such as your right to be identified as the author of any of the User Contents, against the Company or any third party designated by the Company.
The term “Event(s)” means any in-person event, gathering, activity or promotion which is directly organized, hosted, or managed by the Company, and any Promotion (as defined below). By registering or, where required, purchasing tickets for an Event, you represent and warrant that the information you provide is true and accurate. If you are registering or purchasing tickets on behalf of others, you represent and warrant you have all necessary rights and consents to register and provide this information for others.
Subject to applicable law and the exceptions set forth in these Terms, no refunds or exchanges of Event tickets are permitted and tickets are non-transferable. Reasonably acceptable proof of identity, for example a driver’s license or passport, showing the same first and last name as those provided at time of prior registration, may be required to access an Event. Actual or attempted resale of tickets subjects them to revocation without refund. Tickets obtained from unauthorized sources may be invalid, lost, stolen, or counterfeit and may not be honored. Tickets cannot be replaced if lost, stolen or destroyed. Commercial use of tickets is prohibited without written approval from the Company. Tickets are not redeemable for cash or credit. You agree to abide by these Terms including and any other published terms and conditions including those relating to ticket limits or restrictions. Orders exceeding or violating any applicable terms and conditions including those set out herein are subject to cancellation without notice or refund. Events may have limited space and/or availability and the Company does not guarantee your ability to purchase a ticket or attend an Event.
The term “Meet(s)” means any in-person event, gathering, activity or promotion which is organized, promoted or managed by you or another User through the Service. By registering, attending or, where required, purchasing tickets for any Meets, you acknowledge that some Meets carry inherent dangers, such as the risk of property damage or loss, illness, bodily injury, disability, or death. By participating in any Meets, you understand and agree that you have freely chosen to assume these risks.
To the full extent permitted by applicable law, you agree to release the Company Representatives (as defined in Section 24) from any claims, losses, demands, and damages (direct and consequential), arising out of or in any way connected with any transaction or interactions with a third party or any Users, or in connection with any Meets. You also agree, to the full extent permitted by applicable law, to release organizers of Meets from any claims, losses, demands, and damages (direct and consequential) based on an organizer’s negligence arising out of or in any way connected with their content, or any Meet.
18. Community Guidelines and Conduct at Events and Meets
You shall at all times comply with our Community Guidelines and any additional Guidelines, rules and policies provided by the Company or any other authorized party involved in creating or delivering an Event or a Meet including, all health and safety policies and procedures and all reasonable instructions of the venue staff and the Company representatives at the Event or Meet. In addition, you represent and warrant that you shall comply with all applicable laws in relation to any Event, Meet or your use of the App in connection with same.
Illicit drugs, controlled substances, contraband, weapons and illegal items are prohibited at Events and Meets. You agree and consent to all security precautions and searches upon entry to any Events or Meets. To the fullest extent permitted by applicable law, you waive and release the Company and any other party involved in creating or delivering the Event or Meet from any and all claims, demands, causes of action, damages, losses, expenses or liability which may arise out of, result from, or relate in any way to such security precautions and/or searches. If you elect not to consent to such security precautions and searches, you may be denied entry, or removed from, an Event or Meet without refund or other compensation.
The Company, its authorized third parties or the organizer, as applicable, reserve the right to refuse admission to, or to remove you from an Event or Meet without refund or compensation of any kind, any person that (a) does not comply with these Terms, (b) engages in disorderly conduct or willful misconduct, or (c) the Company, its authorized third parties, or the organizer, as applicable, believe will cause a negative effect on the Event or Meet participants, spectators, and/or personnel.
Any minor attending an Event or Meet must be accompanied by a parent or legal guardian.
19. Assumption of Risk
Unless prohibited by applicable law, you agree that by purchasing tickets to, participating in or attending an Event or Meet, you willingly, knowingly and voluntarily assume any and all risks occurring before, during or after the Event or Meet, including injury by any cause and damage, loss, or theft of property. You acknowledge that Events and Meets, and certain activities occurring at same, have inherent and unforeseen risks, including but not limited to (a) contact or collision with persons or objects, (b) obstacles (e.g., natural and man-made water, road and surface hazards), (c) equipment related hazards (e.g., broken, defective or inadequate equipment, unexpected equipment failure), (d) weather related hazards, (e) inadequate first aid and/or emergency measures, (f) judgment and/or behavior related problems (e.g., erratic or inappropriate participant, co-participant, or spectator behavior or errors in judgment by personnel at the Event or Meet), and (g) natural hazards (e.g., uneven or difficult terrain, wildlife and insects, contact with plants). You agree to take reasonable precautions before attending or participating in an Event or Meet and its activities, for example consulting with a personal physician and ensuring you are in good physical health, ensuring your vehicle's roadworthiness, and bringing necessary or recommended supplies. You further understand and acknowledge it is your responsibility to inspect the Event or Meet location, facilities, equipment and areas to be used for same, and that by participating in the Event or Meet, you acknowledge that the Event or Meet location, facilities, equipment, and areas to be used for same are safe, adequate, and acceptable for participation. If you believe or become aware of any unsafe conditions or unreasonable risks, you agree to immediately notify appropriate personnel and cease participation in the Event or Meet.
To the extent permitted under applicable law, you hereby waive and release the Company and any other party involved in creating or delivering the Event or Meet from any and all claims, demands, causes of action, damages, losses, expenses or liability which may arise out of, result from, or relate in any way to your attendance or participation in an Event or Meet, including for negligence, inherent and unforeseen risks, injury to persons or damage or loss of property and the actions of third parties or Event or Meet participants and spectators.
20. Cancellation of Events
Subject to applicable law, all schedules and any live or in-game experiences, activities, goods, services, perks, items, rewards and/or Content (collectively “Event Features”) advertised in connection with an Event are not guaranteed and are subject to change and/or cancellation at any time prior to or during an Event without notice or compensation of any kind. Admittance to an Event does not guarantee any specific Event Features while at the Event.
Event date, time and/or location are subject to change at any time, and the Company will make a commercially reasonable effort to notify you in advance of any material changes. If an Event is canceled, suspended, or rescheduled and you are not able to attend, you will not be entitled to any compensation other than a refund of the ticket price at its face value with no further liability or compensation from the Company or any other party. Any travel or accommodation costs incurred are entirely your responsibility.
21. Use of likeness
You consent to and approve of the Company recording your image, likeness, name, dialogue, biographic information, personal characteristics, and voice at Events and the royalty free use of this information subject to the same rights granted to you in Section 15. the Company may publish the results of any competitions (including rankings and any winners), gameplay statistics, and pictures of participants in promotional and marketing materials and on social media in accordance with these Terms.
22. Virtual Points
The App may permit you to earn virtual points, tokens or blueprints (“Points”), and use of those Points to access additional features, items or services expressly available for use in the App (“Virtual Goods”). Points are a category of Content. You may access the Virtual Goods for your personal, non-commercial use on the Services. You acknowledge that you do not acquire any ownership rights in or to the Points or Virtual Goods. Any balance of Points or Virtual Goods does not reflect any stored value and you agree that Points and Virtual Goods have no monetary value and do not constitute currency or property of any type. Points may be redeemed only for Virtual Goods and can never be sold, transferred, or exchanged for “real” money, “real” goods, or “real” services from us or anyone else. You agree that you will only obtain Points and/or Virtual Goods from us and through means provided by us, and not from any third party unless expressly authorized. Once you acquire any Points or Virtual Goods, you may not transfer them to another individual or account. Any such sale, transfer, or exchange (or attempt to do so) is prohibited, is a violation of these Terms and may result in cancellation of such Points or Virtual Goods or the termination of your User account.
During the term of your license to your Points, you may redeem your Points for selected Virtual Goods. As set forth below, all Points, Virtual Goods, and other Content is provided “AS IS,” without any warranty. You agree that all sales by us to you of Points and Virtual Goods are final and that we will not permit exchanges or refunds for any unused Points or Virtual Goods once the transaction has been made.
Generally, we have the right to offer, modify, eliminate, and/or terminate Points, Virtual Goods, the Content, and/or the Services, or any portion thereof, at any time, without notice or liability to you. If we discontinue the use of Points or Virtual Goods, we will take reasonable steps provide advance notice to you by posting a notice through the Services or through other communications.
We make no representation or warranty and there are no conditions of any kind regarding this Service, the Content, Points, Virtual Goods, Events or User Content, including without limitation any representation, warranty or condition regarding the accuracy, reliability, currency, or completeness of the Content, Points, Virtual Goods, Events or User Content, including that they are appropriate or available for use at any locations outside Canada. Accessing the Service, the Content, Points, Virtual Goods, Events or User Content, from locations where the foregoing, are illegal, is prohibited. Any diversion of the services and/or any Content, of the Content, Points, Virtual Goods, or User Content obtained from or through the services contrary to Canadian law is also prohibited. If you access this Service from locations other than Canada, then you do so on your own initiative and you are solely responsible for compliance with all applicable laws.
You acknowledge and agree that this Service (including without limitation the Content and User Content) is provided on an “AS IS” basis and that any use of or reliance on this Service shall be at your sole risk. We do not screen or censor User Content.
THE COMPANY AND ITS AFFILIATES DO NOT MAKE ANY, AND EXPRESSLY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THIS SERVICE (INCLUDING THE CONTENT, POINTS, VIRTUAL GOODS OR USER CONTENT). FOR GREATER CERTAINTY, THE COMPANY DOES NOT WARRANT THAT THIS SERVICE WILL (I) MEET YOUR REQUIREMENTS, (II) BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE OR ANY RELATED EQUIPMENT, (III) BE RELIABLE, ACCURATE, AUTHENTIC, CURRENT OR COMPLETE, (IV) CONTINUE TO OPERATE, (V) OPERATE WITHOUT INTERRUPTIONS, (VI) BE ERROR-FREE OR (VII) BE FREE OF VIRUSES, WORMS, DISABLING PROGRAMMING CODES, INSTRUCTIONS OR OTHER SUCH ITEMS KNOWN AT THE TIME OF DELIVERY THAT MAY THREATEN, INFECT, DAMAGE, DISABLE OR OTHERWISE INTERFERE WITH THE SERVICE.
24. Limitation of Liability
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY AND ANY OF ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES (COLLECTIVELY THE “COMPANY REPRESENTATIVES”) HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH THIS SERVICE, THE CONTENT, POINTS, VIRTUAL GOODS, EVENTS, MEETS OR USER CONTENT FOR ANY LOSSES OR DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM), TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE BASIS, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR INJURY OR BODILY HARM, HARM TO BUSINESS, LOSS OF INFORMATION OR DATA, DAMAGE OR LOSS OF EQUIPMENT OR PROPERTY, LOSS OF PROFIT, LOSS OF SAVINGS OR REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC LOSS), ARISING FROM OR IN CONNECTION WITH OR RELATING TO THE USE OF OR ACCESS TO, OR ANY INCONVENIENCE, DELAY OR LOSS OF USE OF OR ACCESS TO, THIS SERVICE, THE CONTENT, POINTS, VIRTUAL GOODS, EVENTS, MEETS (INCLUDING, WITHOUT LIMITATION, TRANSPORTATION TO OR FROM ANY MEETS, ATTENDANCE AT MEETS, PARTICIPATION IN OR EXCLUSION FROM MEETS AND THE ACTIONS OF YOU OR OTHERS AT MEETS) OR USER CONTENT OR ANY CONTENT OF ANY LINKED WEB SITE, OR FAILURE OF SUCH WEB SITES (INCLUDING WITHOUT LIMITATION ANY DAMAGES SUFFERED AS A RESULT OF OMISSIONS OR INACCURACIES IN SUCH WEB SITES, CONTENT OR USER CONTENT, OR THE TRANSMISSION OF CONFIDENTIAL OR SENSITIVE INFORMATION TO OR FROM SUCH WEB SITES), EVEN IF WE OR ANY THE COMPANY REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF SUCH DAMAGE OR LOSS WAS OBJECTIVELY FORESEEABLE.
IF UNDER ANY CIRCUMSTANCE A COMPANY REPRESENTATIVE IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY SUCH COMPANY REPRESENTATIVES AGGREGATE LIABILITY IN ANY SUCH CIRCUMSTANCES IS LIMITED TO THE GREATER OF $100 OR THE AMOUNT OF FEES, IF ANY, YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION THAT MAY GIVE RISE TO LIABILITY.
YOU ACKNOWLEDGE THAT THE COMPANY ACTS AS TRUSTEE FOR THE COMPANY REPRESENTATIVES WITH RESPECT TO ALL RIGHTS CONTEMPLATED HEREUNDER ARISING IN FAVOUR OF A COMPANY REPRESENTATIVE. THE COMPANY AGREES TO ACCEPT SUCH TRUST AND HOLD AND ENFORCE SUCH RIGHTS ON BEHALF OF EACH THE COMPANY REPRESENTATIVE.
You will indemnify and hold the Company Representatives harmless from and against any claims brought by third parties arising out of your use of this Service, Points or Virtual Goods and any breach of these Terms by you, including any use of the Content or actions taken at Events, other than as expressly authorized in these Terms. You agree that the Company Representatives will have no liability in connection with any such breach or unauthorized use or modification, and agree to indemnify against any and all resulting loss, damages, judgments, awards, costs, expenses, and lawyers’ fees of the Company Representatives in connection therewith.
26. Choice of law
You agree that all matters relating to the access to, or use of, this Service shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to its conflict of laws principles, and that you will comply with all such applicable laws.
Any dispute between us and you or any other person arising from, in connection with or relating to this Service, these Terms, any transaction through this Service or any related matters must be resolved before the Courts of the Province of Ontario, Canada sitting in the City of Toronto, and you hereby irrevocably submit and attorn to the exclusive jurisdiction of those Courts in respect of any such dispute. The application of 1980 United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from these Terms.
27. Termination of Use
If you breach any provision of these Terms, then you may no longer use this Service. We, in our sole discretion, shall determine whether these Terms have been violated. You agree that we may, in our sole discretion, terminate or suspend your account with or without notice.
Upon termination or suspension of your use, regardless of the reasons therefore, your right to use this Service immediately ceases, and you acknowledge and agree that you shall immediately deactivate or unstill the App and all related information and files on your device and/or bar any further access to such files or this Service. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.
These Terms constitute the entire agreement between us and you with respect to the subject matter hereof, and supersede all communications, representations or agreements, either oral or written, between us or our affiliates and you with respect to this subject matter. Notwithstanding the foregoing, if you and the Company agree to a written agreement and such agreement expressly overrides these Terms, the provisions of such agreement will prevail. If for any reason a court of competent jurisdiction finds any provision of these Terms or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms, and the remainder of these Terms shall continue in full force and effect.
No waiver of or consent to depart from the requirements of any provision of these Terms will be binding unless it is in writing and signed by the Company. You and the Company are independent contractors, and no agency, partnership, joint venture, employment or franchise relationship is intended or created by these Terms.
The provisions of these Terms will enure to the benefit of and be binding upon you and the Company and its respective successors and assigns, and, if you are contracting as an individual, your heirs, executors, administrators and personal representatives. You may not assign these Terms or your rights and obligations under these Terms without our express prior written consent, which may be withheld in our sole discretion. We may assign these Terms and our respective rights and obligations under these Terms without your consent. In these Terms the word “including” or “includes” or any variation thereof means including, without limitation and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
All notices to us shall be in writing and shall be made via email. Notices to us must be sent to the attention of our customer service representatives at firstname.lastname@example.org. Notices to you may be sent, in our sole discretion, electronically via notification in the App. In addition, we may broadcast notices or messages through this Service to inform you of changes to this Service or other matters of importance, and such broadcasts shall constitute notice to you at the time of sending.
By agreeing to these Terms you consent and agree to the Company sending you account-based information and alerts regarding your account by notification in the App, text and/or push notifications on your mobile device on a periodic basis. In addition, or in the alternative, we may broadcast notices or messages through this Service to inform you of changes to this Service or other matters of importance, and such broadcasts shall constitute notice to you at the time of sending.
30. Apple Terms and Conditions
In the event that you have downloaded a version of the Service for use on the iOS platform, the additional provisions set out in this Section apply to your use of such version of the Service. When we say “Apple” in this Section we mean “Apple Inc.”.
The parties acknowledge that these terms are concluded between the parties only and not with Apple, and us, not Apple, are solely responsible for the Service and the content thereof. In the event that these terms provide for usage rules for the Service that are less restrictive than the Usage Rules set forth for the Service in, or otherwise be in conflict with, the App Store Terms of Service as of the effective date of these terms, such usage rules for the Service will not be in force to the minimal extent of such inconsistency.
The Service license is limited to a non-transferable license to use the Service on any Apple-branded Products (as defined in the Apple Usage Rules) that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such Service may be accessed and used by other accounts associated with the purchaser via Family Sharing (as defined in the Apple Usage Rules) or volume purchasing.
The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
To the extent any warranty is imposed upon the Service pursuant to any applicable law, in the event of any failure of the Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the Service to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such warranty will be our sole responsibility.
The parties acknowledge that Apple is not responsible for addressing any claims of yours or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy or similar legislation.
The parties acknowledge that, in the event of any third party claims that the Service or your possession and use of the Service infringes that third party’s intellectual property rights, you, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
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.
You must comply with applicable third party terms of agreement when using the Service.
The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these terms in respect of the Service, and that, upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms in respect of the Service against you as a third party beneficiary thereof.
The parties have required that this agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y attachent soient rédigés en langue anglaise.