Terms of Service for Customers
Effective: December 12, 2018.
Emmetros Limited of Ontario, Canada (“Emmetros”, “we”, “our” or “us”) provides services to help store, manage, access, and communicate information related to your care or the care of your children, parents, and other persons under your care or under care by your employer (the “MemorySparx Services”). We do this through our website (the “Site”). If you are being invited or added to the MemorySparx Services set up by a Customer (defined below), the Terms of Service for Users govern your access and use of the MemorySparx Services (and not the Terms of Service for Customers).
If you are accepting an invitation in the role of Account Manager (defined below) using an email address from your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms of Service for Customers (“Customer Terms”); (ii) you have read and understand these Customer Terms; and (iii) you agree to these Customer Terms on behalf of the party that you represent. By clicking on ‘Sign up’ (or similar button or checkbox), you will be deemed to represent such party and you will bind your employer or that entity to these Customer Terms. If you do not have the legal authority to bind your employer or the applicable entity, do not click on “Sign up” (or similar button or checkbox) that is presented to you. The words “Customer” and “You” hereafter in these Customer Terms will mean the entity you represent in accepting these Customer Terms or, if that does not apply, you individually.
It is important to consult a medical professional for medical care and advice to help you make informed medical decisions. Information available through the MemorySparx Services is of a general nature, is not medical advice, and should not be relied upon as a substitute for the expertise and judgment of any doctor, pharmacist or other healthcare professional. Making a reliable medical diagnosis, treating any medical condition, and administering any drug therapy require the involvement of independent informed healthcare professionals. In case of any specific questions regarding the treatment and care of a medical condition, contact a professional healthcare provider.
1. Customer choices and instructions.
1.1. Account Manager. The MemorySparx Services offer you the ability to create one or more “Care Circles” (each defined as the MemorySparx Services space where a group of individuals may access the MemorySparx Services relating to the care of a single person known as a “Care Recipient”) within the terms of the “Sales Contract” (defined as the agreement by which we agree to offer MemorySparx Services accounts to the Customer subject to conditions agreed to by the Customer in order to procure MemorySparx Services accounts). You are able to specify certain rights and controls over Care Circles procured under your Sales Contract(s) to a representative, known as the “Account Manager”. The rights and controls may include inviting an individual in the role of “Care Manager” (defined as the individual with rights and controls over a Care Circle as specified in Section 1.2) to the MemorySparx Services, reassigning the Care Manager role to another individual, as well as the additional rights and controls available to Care Managers and Authorized Users (defined in Section 1.3) as specified in Sections 1.2 and 1.3. Refer to the Documentation for additional information on procuring Care Circles, rights and controls of the Account Manager role, and designating and reassigning an individual in the Care Manager role.
1.2. Care Manager. The Account Manager is able to assign certain rights and controls over one or more Care Circles procured under your Sales Contract(s) to a representative, known as the Care Manager. The rights and controls may include creating, deprovisioning, monitoring, or modifying the assigned Care Circle(s); inviting individuals to join the assigned Care Circle(s); and setting permissions relating to the MemorySparx Services for individuals within the assigned Care Circle(s) including access to Customer Data (defined below). The Care Manager has the additional rights and controls available to Authorized Users (defined and specified in Section 1.3) within the assigned Care Circle(s). You are responsible for the assignment of Account Managers and Care Managers and any actions they take, including as described above. You may reassign these roles at any time. You agree that our responsibilities do not extend to the internal management or administration of the MemorySparx Services for you. Refer to the Documentation for additional information on the rights and controls of a Care Manager and instructions for tasks under the responsibility of a Care Manager.
1.3. Authorized Users. Individuals invited to access the MemorySparx Services become an “Authorized User” by clicking on ‘Sign up’ in the account creation process and therein accepting the Terms of Service for Users and creating an account. No matter the role, an account is required for each Authorized User. Each Authorized User must agree to the Terms of Service for Users to activate their MemorySparx Services account. Individuals may be invited to access an existing Care Circle relating to a Care Recipient. An Authorized User who accepts an invitation to a Care Circle may have rights and controls over that Care Circle, according to permissions that may be set by the Account Manager and the Care Manager who are responsible for the Care Circle. The rights and controls may include submitting content to the MemorySparx Services, such as chat messages, photos, captions, notes, voice recordings, and entries (collectively, “Customer Data”) relating to the Care Recipient; accessing some or all Customer Data relating to the Care Recipient, including content that is added by other members of the Care Circle; inviting other individuals to join the Care Circle. The Account Manager and Care Manager may change the rights and controls of an Authorized User within the Care Circle at any time. Refer to the Documentation for additional information on the rights and controls of an Authorized User and instructions for tasks available to an Authorized User.
1.4. Customer Data. An Authorized User may submit content or information to the MemorySparx Services (collectively, Customer Data) and you may exclusively provide us with instructions on what to do with it. For example, you may provision or deprovision access to some or all of the MemorySparx Services, enable or disable third party integrations, manage permissions, retention and export settings, or transfer or assign Customer Data. Since these choices and instructions may result in the access, use, disclosure, modification, or deletion of certain or all Customer Data, please review the Documentation for more information about these choices and instructions. You will (a) inform Authorized Users of any relevant Customer policies and practices and any settings that may impact the processing of Customer Data; (b) obtain any rights, permissions or consents from Authorized Users that are necessary for the lawful use of Customer Data and the operation of the MemorySparx Services; (c) ensure that the transfer and processing of Customer Data under the Contract is lawful; and (d) respond to and resolve any dispute with any Authorized User relating to or based on Customer Data, the MemorySparx Services or your failure to fulfill these obligations.
1.6. Responsibility for Authorized Users. The MemorySparx Services may allow an Authorized User to invite other individuals to Care Circles procured under your Sales Contract(s). You are responsible for controlling who becomes an Authorized User within all Care Circles procured under your Sales Contract(s). We are only required to provide accounts for Authorized Users to access the MemorySparx Services when you have paid the applicable Care Circle fees. You are responsible for the activities of all Authorized Users within Care Circles procured under your Sales Contract(s), even if those Authorized Users are not from your organization or domain, including (i) any payment obligations, (ii) their compliance with these Customer Terms, and (iii) how these users use Customer Data. We may review conduct for compliance purposes, but we have no obligation to do so. We aren’t responsible for the activities of any Authorized Users within the MemorySparx Services or the content of any Customer Data.
1.7. Feedback. From time to time, you may choose to submit Feedback to us. “Feedback” means ratings, comments, questions, ideas, suggestions or other feedback relating to the MemorySparx Services, Additional Services (defined below) or other services we provide. If you provide us any Feedback there is a chance we will use it, so you grant us (for Customer and all of its Authorized Users) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use Feedback for any purpose without any obligation or compensation to you, any Authorized User, or other Customer personnel. We appreciate all feedback.
2. Basic account terms and restrictions.
2.1. Access to the MemorySparx Services. Subject to these Customer Terms and during the “Contract Term” as specified in the applicable Sales Contract, you may access and use the MemorySparx Services for your own business purposes or personal use, as applicable, all in accordance with these Customer Terms and the applicable Sales Contract. This includes the right, as part of your authorized use of the MemorySparx Services, to download and use the client software associated the MemorySparx Services. The rights granted to you in this Section 2.1 are non-exclusive, non-sublicensable and non-transferable.
2.2. Age Requirement for Authorized Users. The MemorySparx Services are not intended for and should not be used by anyone under the age of majority. You are responsible for ensuring that all Authorized Users are age of majority.
2.3. Internet Technology. Authorized Users will need compatible hardware, software and internet access. Emmetros is not responsible for any fees necessary for an Authorized User to connect to the internet and app stores or for data or mobile usage to access and use the Site for the MemorySparx Services.
2.4. Credentials. You must require that all Authorized Users keep their user IDs and passwords for the MemorySparx Services strictly confidential and do not share such information with any unauthorized person. You are responsible for any and all actions taken using Authorized User accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
2.5. Restrictions. Except as otherwise expressly permitted in these Customer Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the MemorySparx Services; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the MemorySparx Services to a third party; (c) use the MemorySparx Services for the benefit of any third party; (d) incorporate any MemorySparx Services into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the MemorySparx Services intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any MemorySparx Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any MemorySparx Services; (h) use the MemorySparx Services for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the MemorySparx Services; or (j) encourage or assist any third party to do any of the foregoing.
3. Our security and data privacy policies.
3.1. Security. We implement security procedures designed to help protect Customer Data from security attacks. We highlight our security procedures in our Security Overview.
3.4. Service Availability. Although Emmetros intends for the MemorySparx Services to be available as much as possible, there will be occasions when the MemorySparx Services are interrupted, including, without limitation, for scheduled maintenance or upgrades, emergency repairs or due to failure of telecommunication links and/or equipment.
4. Terms that apply to Customer Data.
4.1. Using Customer Data to provide MemorySparx Services to you. You retain all right, title, and interest in and to Customer Data in the form submitted to the MemorySparx Services. Subject to the terms and conditions of the Contract, you (for Customer and all of its Authorized Users) grant us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, only as reasonably necessary (a) to provide, maintain and update the MemorySparx Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by you. Solely to the extent that reformatting Customer Data for display in the MemorySparx Services constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. You represent and warrant that Customer has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license.
4.2. Your Data Compliance Obligations. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Customer Data to the MemorySparx Services and to grant the rights granted to us in these Customer Terms; and (ii) Customer Data and its submission and use as you authorize in these Customer Terms will not violate (1) any applicable local, state, federal and international laws, regulations and conventions (“Laws”), (2) any third-party intellectual propriety, privacy or other rights, or (3) any of your third-party policies or terms governing Customer Data. Other than our express obligations under Section 3 (Our security and data privacy policies), we assume no responsibility for Customer Data, and you are solely responsible for Customer Data and the consequences of submitting and using it with the MemorySparx Services.
4.3. Limit Sensitive Data. Because of the private and sensitive nature of personal and health care data of a Care Recipient, we recommend that you limit the private and sensitive information contained within your Customer Data. We recommend that you do not submit any Sensitive Data that is not necessary for the care and well-being of the Care Recipient. “Sensitive Data” means any (i) patient, medical or other protected health information regulated by the Personal Health Information Protection Act (PHIPA) or Health Insurance Portability and Accountability Act (HIPAA), as amended and supplemented; (ii) credit, debit or other payment card data; (iii) financial information; (iv) identifying numbers such as social security numbers, social insurance numbers, or driver’s licence; or (v) any data similar to the foregoing that is protected under any Laws.
4.4. Removals and Suspension. We have no obligation to monitor any Customer Data uploaded to the MemorySparx Services. Nonetheless, if we believe that there is a violation of the Contract that can simply be remedied by your removal of certain Customer Data, we will, in most cases, ask you to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if you do not take appropriate action, or if we believe there is a credible risk of harm to us, the MemorySparx Services, Authorized Users, or any third parties.
4.5. Customer Data Storage. The MemorySparx Services are designed to help manage content among members of a Care Circle related to the care and well-being of a person. The MemorySparx Services store and back up Customer Data so that one or more people may use the services on more than one device; however, the MemorySparx Services are not a storage or backup service. Emmetros will not be liable to you for any modification, suspension, or discontinuation of the service, or the loss of any data or Customer Data. You also acknowledge that the internet may be subject to breaches of security and that the submission of content or other information may not be secure. We also retain the right to create limits on storage space and the use of storage at our sole discretion at any time without prior notice to you.
5. Additional Services.
5.1. Subject to these Customer Terms, you may purchase services from us for the purpose of onboarding, training, data analysis, research or support (“Additional Services”) that we will provide to you pursuant to the applicable Sales Contract. Additional Services may be subject to additional policies and terms as specified by us.
5.2. Our Deliverables. We will retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments that we provide in connection with any Additional Services (“Our Deliverables”). You may use any of Our Deliverables provided to you only in connection with the MemorySparx Services, subject to the same usage rights and restrictions as for the MemorySparx Services.
5.3. Your Materials. You agree to provide us with reasonable access to your materials, systems, personnel or other resources (“Your Materials”) as reasonably necessary for our provision of Additional Services. If you do not provide us with timely access to Your Materials, our performance of Additional Services will be excused until you do so. You retain your rights in Your Materials, subject to our ownership of any MemorySparx Services, any of Our Deliverables or any Emmetros Content underlying Your Materials. We will use Your Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Your Materials to provide them to us for such purposes.
6. Billing, renewals, and payment.
6.1. Monthly and Annual Plans. Except for No-Charge Services (defined below), licenses to the MemorySparx Services are offered either on a monthly or an annual subscription basis.
6.2. Renewals. Except as otherwise specified in the Contract, unless either party cancels your subscription prior to the expiration of the current Contract Term, your subscription will automatically renew. Upon renewal, the Contract Term will start on the date of expiration of the previous Contract Term and will last for a period equal to your initial Contract Term as per the applicable Sales Contract. You will provide any notice of non-renewal through the means we designate, which may include via email to firstname.lastname@example.org. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable MemorySparx Services continuing to be offered and will be charged at the then-current rates.
6.3. Adding Users. You may procure MemorySparx Services for additional Care Circles beyond the limit imposed in the Sales Contract by placing a new Sales Contract or modifying an existing Sales Contract. Unless otherwise specified in the applicable Sales Contract, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Contract Term.
6.4. Payment. You will pay all fees in accordance with each Sales Contract, by the due dates and in the currency specified in the Sales Contract. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to Emmetros by emailing the PO number to email@example.com. Other than as expressly set forth in Section 7 (Our return policy) or Section 17 (Changes to these Customer Terms), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.
6.5. Delivery. We will invite an Account Manager to the MemorySparx Services and provision for creation of accounts as per the Sales Contract no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Sales Contract has been processed. All deliveries under these Customer Terms will be electronic.
7. Our return policy.
As part of our commitment to customer satisfaction and without limiting the Performance Warranty in Section 14 (Warranties and Disclaimer), you may terminate your initial Sales Contract of MemorySparx Services under these Customer Terms, for no reason or any reason, by providing notice of termination to us no later than thirty (30) days after the Sales Contract date for such MemorySparx Services. In the event you terminate your initial Sales Contract under this Section 7, at your request (which may be made through your account with us), we will refund you the amount paid under such Sales Contract. This termination and refund right applies only to your initial Sales Contract of the MemorySparx Services and only if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that we may change this practice in the future in accordance with Section 17 (Changes to these Customer Terms).
8. Taxes not included.
8.1. Taxes. Your fees under these Customer Terms exclude any taxes or duties payable in respect of the MemorySparx Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Customer Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.
8.2. Withholding Taxes. You will pay all fees net of any applicable withholding taxes. We will work together with you to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
9. No contingencies on other products of future functionality.
You acknowledge that the MemorySparx Services and Additional Services referenced in a Sales Contract are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of MemorySparx Services and Additional Services are separate and not contingent on each other, even if listed on the same Sales Contract). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any MemorySparx Services beyond the current Contract Term), or dependent on any oral or written public comments we make regarding future functionality or features.
10. Services at no charge.
We may offer certain MemorySparx Services, Additional Services or other services to you at no charge, for example, a subscription to the MemorySparx Services on a trial basis (collectively, “No-Charge Services”). Your use of No-Charge Services is subject to any additional terms that we specify and is only permitted during the Contract Term we designate (or, if not designated, until terminated in accordance with these Customer Terms). Except as otherwise set forth in this Section 10, the terms and conditions of these Customer Terms governing the MemorySparx Services, including Section 2.5 (Restrictions), fully apply to No-Charge Services. We may modify or terminate your right to use No-Charge Services at any time and for any reason in our sole discretion, without liability to you. All information regarding the characteristics, features or performance of any No-Charge Services constitutes our Confidential Information (defined below). To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Services, including any support, warranty and indemnity obligations. Notwithstanding anything else in these Customer Terms, our maximum aggregate liability to you in respect of No-Charge Services will be CAD$100.
11. Intellectual property and feedback.
The MemorySparx Services are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to all “Emmetros Content”, meaning the MemorySparx Services (including all No-Charge Services), any materials and deliverables that we provide, their look and feel, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback. From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
Except as otherwise set forth in these Customer Terms, each party agrees that all code, inventions, images, text, graphics, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Emmetros Content and any performance information relating to the MemorySparx Services will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Customer Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 12. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
13. Term and termination.
13.1. Term. These Customer Terms are effective as of the Effective Date and expire on the date of expiration or termination of the current Contract Term as set forth in the applicable Sales Contract and pursuant to Section 6.2 (Renewals).
13.2. Termination for Cause. Either party may terminate these Customer Terms (including all related Sales Contracts and Terms of Service for Users) if the other part (a) fails to cure any material breach of these Customer Terms within thirty (30) days after notice; (b) ceases operation with a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
13.3. Termination for Convenience. You may choose to stop using the MemorySparx Services and terminate these Customer Terms (including all related Sales Contracts and Terms of Service for Users) at any time for any reason upon written notice to us, but, unless you are exercising your right to terminate early pursuant to Section 6 (Our return policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees; and (ii) if you have not already paid all applicable fees for the then-current Contract Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
13.4. Effects of Termination. Upon any expiration or termination of these Customer Terms, you must cease using all MemorySparx Services and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to your Customer Data (and we may delete all of your Customer Data unless legally prohibited) after expiration or termination of these Customer Terms (or its applicable Contract Term). If you terminate these Customer Terms in accordance with Section 13.2 (Termination for Cause), then we will refund you any prepaid fees covering the remainder of the then-current Contract Term after the effective date of termination. If we terminate these Customer Terms in accordance with Section 13.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Contract Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Customer Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Customer Terms, by law or otherwise.
13.5. Survival. The following provisions will survive any termination or expiration of these Customer Terms: Sections 2.5 (Restrictions), 6.4 (Payment), 8 (Taxes not included), 10 (Services at no charge) (disclaimers and use restrictions only), 11 (Intellectual Property and Feedback), 12 (Confidentiality), 13 (Term and Termination), 14.3 (Warranty Disclaimer), 15 (Your Indemnity) (but solely with respect to claims arising from your use of the MemorySparx Services during all Contract Terms), 16 (Limitations of Liability) and 19 (General Terms).
14. Warranties and Disclaimer.
14.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Customer Terms.
14.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the MemorySparx Services (but we are not responsible for harmful materials submitted by you or Authorized Users) (the “Performance Warranty”).
14.4. Your Warranties. By accessing or using the MemorySparx Services you represent and warrant that your activities are lawful in every jurisdiction where you access or use the MemorySparx Services.
15. Your Indemnity.
You agree to defend, indemnify and hold the Emmetros Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the MemorySparx Services or those conducted on your behalf): (a) your access to or use of the MemorySparx Services; (b) your breach or alleged breach of the Contract; (c) Customer Data, Feedback, or access to or use of the services; (d) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (e) your violation of any Laws; or (f) any misrepresentation made by you.
16. Limitations of Liability.
16.1. Consequential Damages Waiver. Under no circumstances will the Emmetros Parties be liable to you under any theory of liability (whether contract, tort (including negligence), common, civil or regulatory law (including privacy) or otherwise) for any loss or damages of any kind (including, without limitation, for any direct, indirect, economic, exemplary, special, punitive, incidental or consequential losses or damages) that are directly or indirectly related to: (a) the MemorySparx Services; (b) Emmetros Content; (c) any Customer Data; (d) your use of, inability to use, or the performance of the MemorySparx Services; (e) any action taken in connection with an investigation by the Emmetros Parties or law enforcement authorities regarding your or any other party's use of the MemorySparx Services; (f) any action taken in connection with copyright or other intellectual property owners; (g) any errors or omissions in the operation of the MemorySparx Services; or (h) any damage to any user's computer, mobile device, or other equipment or technology including, without limitation, damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other technical or other malfunction, including, without limitation, damages for lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or computer failure or malfunction, even if foreseeable or even if the Emmetros Parties have been advised of or should have known of the possibility of such damages, whether in an action of contract, negligence, strict liability or tort (including, without limitation, whether caused in whole or in part by negligence, acts of god, telecommunications failure, or theft or destruction of MemorySparx). In no event will the Emmetros Parties be liable to you or anyone else for loss, damage or injury, including, without limitation, death or personal injury. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
16.2. Liability Cap. In no event will the Emmetros Parties’ total liability to you for all damages, losses or causes or action exceed the total amount you paid to Emmetros in the one hundred and eighty (180) days immediately preceding the date on which you first assert any such claim.
16.3. Liability for Acts or Omissions. You agree that in the event you incur any damages, losses or injuries that arise out of Emmetros acts or omissions, the damages, if any, caused to you are not irreparable or sufficient to entitle you to an injunction preventing any exploitation of any web site, services, property, product or other content owned or controlled by the Emmetros Parties, and you will have no rights to enjoin or restrain the development, production, distribution, advertising, exhibition or exploitation of any web site, property, product, services, or other content owned or controlled by the Emmetros Parties.
16.4. Liability for Third Parties. Emmetros is not responsible for the actions, content, information, or data of third parties, and you release us, our directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claim you have against any such third parties.
17. Changes to these Customer Terms.
17.1. We may modify the terms and conditions of these Customer Terms from time to time by posting the modified Customer Terms on our website. Customer Terms on our website will specify the effective date of the modifications.
17.2. No-Charge Services. You must accept the modifications to continue using the No-Charge Services. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Services.
17.3. Paid Subscriptions. Except as otherwise indicated below, modifications to these Customer Terms will take effect at the next renewal of your Contract Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 5.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Contract Term. If the effective date of such modifications is during your then-current Contract Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Sales Contract upon notice to us, and we will refund you any fees you have pre-paid for use of the affected MemorySparx Services for the terminated portion of the applicable Contract Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Sales Contract is subject to the version of these Customer Terms in effect at the time of the Sales Contract.
18. Changes to the MemorySparx Services.
You acknowledge that the MemorySparx Services are on-line, subscription-based services, and that in order to improve customer experience we may make changes to the MemorySparx Services and the Documentation. Subject to our obligation to provide the MemorySparx Services and Additional Services under existing Sales Contracts, we can discontinue any MemorySparx Services, any Additional Services, or any portion or feature of any MemorySparx Services for any reason at any time without liability to you.
19. General terms.
19.1. The failure of Emmetros to enforce any right or provision of these Customer Terms shall not be deemed to be a waiver of such right or provision.
19.3. Country of Origin. Emmetros operates the MemorySparx Services from Canada. You are only allowed to access the MemorySparx Services if you are entitled to enter into a binding contract with Emmetros and are not a person barred from accessing the MemorySparx Services according to the applicable law. You undertake to access the MemorySparx Services solely in compliance with these Customer Terms and all applicable rules and regulations. The MemorySparx Services is not directed to any person to whom (by reason of such person’s nationality, residence or otherwise) the publication or availability of the MemorySparx Services is prohibited. Persons to whom such restrictions apply must not access the MemorySparx Services. If you choose to access the MemorySparx Services from outside Canada you are solely responsible for compliance with any applicable local laws.
19.4. Dispute Resolution. The Contract is governed by, and interpreted in accordance with, the laws of the Province of Ontario and the federal laws of Canada without regard to their conflicts of laws provisions. Any dispute relating to these Customer Terms and/or the MemorySparx Services shall be resolved in the Ontario Superior Court of Justice, sitting in Toronto Ontario, Canada, and you hereby irrevocably consent and attorn to the exclusive jurisdiction of that Court. To the extent permitted by law, you agree that any disputes, claims and causes of action arising out of or connected with the MemorySparx Services and/or these Customer Terms, will be resolved individually, without resort to any form of class action.
19.5. Relationship of the Parties. The parties are independent contractors. These Customer Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
19.6. Publicity Rights. We may identify you as our customer in our promotional materials. We will promptly stop doing so upon your request sent to firstname.lastname@example.org.
19.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Customer Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
If you have any questions about these Customer Terms, please contact us at email@example.com or contact us by mail at:
Accelerator Centre, West Entrance
295 Hagey Blvd.
Waterloo, ON, N2L 6R5