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Momentem

Privacy policy

WIDALITY INC. END-USER TERMS AND CONDITIONS OF USE FOR THE momentem™ SOFTWARE AND SERVICES

READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE MOMENTEM SOFTWARE OR SUBSCRIBING TO THE MOMENTEM SERVICES. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE MOMENTEM SOFTWARE OR SUBSCRIBING TO THE MOMENTEM SERVICES, YOU AGREE AND ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE MOMENTEM SOFTWARE, OR REMOVE IT IMMEDIATELY, OR UNSUBSCRIBE FOR THE MOMENTEM SERVICES. YOU ALSO AGREE TO REVIEW THIS AGREEMENT PERIODICALLY IN ORDER TO BE AWARE OF MODIFICATIONS TO THIS AGREEMENT WHICH WIDALITY MAY MAKE FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF THE MOMENTEM SOFTWARE AND/OR MOMENTEM SERVICES DEEM YOUR CONCLUSIVE ACCEPTANCE OF ANY MODIFIED AGREEMENT.

YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT, THE TERMS AND CONDITIONS OF WHICH SHALL PREVAIL IN GOVERNING YOUR RIGHTS OF USE. BY CLICKING THE "ACCEPT" BUTTON AND EITHER INSTALLING, DOWNLOADING OR USING THE MOMENTEM SOFTWARE AND/OR SUBSCRIBING TO THE MOMENTEM SERVICES, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT CLICK "ACCEPT" AND YOU MUST NOT DOWNLOAD, INSTALL OR USE THE MOMENTEM SOFTWARE OR SUBSCRIBE TO THE MOMENTEM SERVICES.

This Agreement is an agreement defining Your rights as the end-user, it is not an agreement for sale. Widality Inc. ("Widality") owns the copy of the momentem Software provided hereunder and any other copy that You are authorized to make pursuant to this Agreement, including without limitation, all underlying trade secrets, confidential information, intellectual and proprietary rights contained therein, are owned exclusively by Widality. Your right to use the momentem Software and Services is conditional upon the payment of all fees due to Widality, or Your third party distribution agent, failure of which shall constitute a breach of this Agreement entitling Widality to terminate Your license to use the momentem Software and Services. Any documentation that is provided with the momentem Software is incorporated into and forms a part of this Agreement.

1. DEFINITIONS.

1. "Agreement" refers to these end user terms and conditions.
2. "Device" means Your mobile handset or device.
3. "momentem Software" or "Software" is a cellular telephone / mobile phone handset software product developed by Widality that may be distributed by Widality directly or a third party distribution agent, that is combined with the momentem services to provide the end-user with a monthly subscription service for tagging calls made to or from the Device, and logging of other mobile activity and expenses.
4. "momentem Services" or "Services" are the over-the-air data transmission services and managed hosted services that provide the end-user with reports on mobile activity and reminders of tagged calls and activities as part of an activity and expense management system.
5. "Widality" refers to Widality Inc..
6. "Site" refers to the Widality web site located at www.widality.com.
7. "third party distribution agent" means an authorized distributor of the Software.
8. "You" refers to the end-user or subscriber.

1. SOFTWARE LICENSE. Subject to the terms and conditions herein, Widality grants You a personal, revocable, non-exclusive, non-transferable license to install and use one copy of the Software on a single registered Device to be used only for the purposes described in the momentem product documentation which accompanies the Software or which is available online at Widality's Site. You are permitted to make a backup copy for Your own use. You may not use or allow use of the Software other than for Your own internal or personal purposes. You may not sell, resell, lease, sublease, rent, redistribute or otherwise transfer or assign the Software. You hereby acknowledge and agree that You are initially granted a temporary fourteen (14) day license to access and use the Software for Your evaluation only, and that the Software shall automatically and without notice to You reduce or eliminate functionality after such fourteen (14) day period. Should You wish to extend Your license to the Software thereafter, You shall have to register this Agreement with Widality or Your third party distribution agent and commence payment of associated fees to Widality or to Your third party distribution agent. Failure to do either shall constitute the expiry and termination of this Agreement pursuant to Section 9. This Agreement does not imply any rights to future upgrades or updates of the Software. However, if Widality does provide You with any upgrades or updates to the Software either directly or through Your third party distribution agent, such upgrades or updates shall be subject to the terms and conditions of this Agreement or any agreement which accompanies such upgrades or updates, and may be subject to additional payments. You may not print, copy, reverse engineer, make derivative works from, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part.

2. EXPORT REGULATIONS. All Software and technical data delivered under this Agreement are subject to US export control laws, and may be subject to export or import regulations in other countries, including without limitation, Canada and the United States. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to You.

3. INTELLECTUAL PROPERTY. You do not acquire under this Agreement any intellectual property or other proprietary rights, including without limitation, any patents, inventions, improvements, designs, trademarks, including any applications for same, copyright, rights in any confidential information or trade-secrets, in or relating in any way to the Software or Services. Any grants not expressly granted herein are reserved. The Software is only licensed to You as expressly set out herein, and it and all associated documentation or materials are protected by Canadian, U.S. and international copyright and patent laws and international treaty provisions. You hereby acknowledge that Widality owns the trademarks, copyrights and other proprietary rights to the Widality and momentem brands and logos.

4. CONFIDENTIALITY. You acknowledge and agree that the Software was developed at considerable time and expense by Widality and is confidential and proprietary to and contains trade secrets of Widality. You agree to maintain the Software and associated documentation in strict confidence and not to disclose or provide access thereto to any third party without Widality's prior written consent. You do not have the right to obtain or use any source code for the Software, and may not translate, reverse engineer, decompile or disassemble, or otherwise attempt to derive the source code of the Software and agree not to authorize, allow or enable any other person to do so.

5. WARRANTY AND DISCLAIMER. For a period of thirty (30) days from the date You download the Software (the "Warranty Period"), Widality warrants that the Software, if operated as directed, will perform substantially in accordance with the documentation supplied. Widality does not warrant, however, that Your use of the momentem Software or momentem Services will be uninterrupted or that the momentem Software or momentem Services will be error free. WIDALITY HAS NO OBLIGATION TO PROVIDE YOU WITH TECHNICAL SUPPORT. If Widality does provide any technical support, Widality shall provide such support on a commercially reasonable endeavors basis at Widality's sole discretion. During the Warranty Period, in the event that the Software as shipped by Widality, or an authorized distribution agent, is not capable of performing the functions described in the documentation when used as specified by Widality, Widality will provide You with a replacement copy of the Software or, at Widality's sole discretion, provide a workaround (which may be provided in a form at Widality's discretion, including a generally available software fix available to You at Widality's Site). The foregoing is Widality's only obligation and is Your sole and exclusive remedy for any defects, errors or problems You may experience related to momentem Software or momentem Services. The above will not apply if the failure of momentem Software or momentem Services to perform the functions described in the product description is due to: (i) use of momentem Software or momentem Services in a manner inconsistent with any of Your obligations set out in this Agreement or in a manner inconsistent with any instructions specified by Widality, or integration of momentem Software or momentem Services into any other system or with any other product or service; or (ii) a malfunction or other problem related to any hardware, software or communication system other than momentem Software or momentem Services; or (iii) to any external causes affecting momentem Software or momentem Services, such as accident, misuse, electrostatic discharge, water or wind, or correction of errors attributable to software other than the momentem Software or momentem Services; or (iii) any changes You or any other party make to the momentem Software or momentem Services. This paragraph sets out Your sole remedies in respect of momentem Software or momentem Services and any breach of the warranty set out herein. EXCEPT AS PROVIDED ABOVE, THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND WHATSOEVER BY WIDALITY. WIDALITY DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SOFTWARE OR SERVICES, OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABLE QUALITY, DURABILITY, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXPRESSLY EXCLUDED. WIDALITY SHALL HAVE NO LIABILITY TO YOU OF ANY KIND WITH RESPECT TO ANY SERVICE PROVIDED BY ANY THIRD PARTY.

6. LIMITATION OF LIABILITY. The only type of damages that can be recovered against Widality arising from or related to this Agreement, including without limitation, in relation to the provision, use, performance or non-performance of the Software or any portion thereof, shall be Your direct damages, if any, and: (i) in no event shall the aggregate liability of Widality exceed the amount paid by You for the Software that gave rise to the claim; and (ii) Widality shall only be liable for damages incurred during the period of such failure, delay or non-performance of the Software. WIDALITY SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE MOMENTEM SOFTWARE OR SERVICES. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WIDALITY BE LIABLE FOR ANY OTHER DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH MOMENTEM, DOWNTIME COSTS, LOSS OF USE OF THE MOMENTEM SOFTWARE OR SERVICES, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, COST OF CAPITAL, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE THE MOMENTEM SOFTWARE OR SERVICES OR ANY THIRD PARTY SOFTWARE, EVEN IF WIDALITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY YOU, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. The limited warranties set out in this Agreement give You specific legal rights. You may also have other rights that vary by state or province. some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions.

7. TERM. This Agreement shall be effective upon Your agreement to be bound by the terms (as described above) and shall end upon termination of this Agreement in accordance with the provisions set out herein. Widality reserves the right to terminate this Agreement in the event that airtime, internet or other similar services required by Widality to provide the momentem Services to You become unavailable through no fault of Widality without liability to You, by providing notice of termination. Upon termination of this Agreement, You will cease all use of the momentem Software and the momentem Services and destroy and/or permanently delete all copies of the momentem Software and documentation in Your possession.

8. TERMINATION FOR DEFAULT. In addition to all other rights and remedies provided by this Agreement or by law, Widality may terminate this Agreement by providing notice of termination in the event of Your breach of any provision of this Agreement. In addition, Widality may terminate this Agreement without any liability whatsoever to You if Widality is prevented from providing access to the momentem Software ormomentem Services by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body, or if a notice from a government agency or department indicates either Widality or the third party distribution agent is not permitted to provide access to the momentem Software and momentem Services. Nothing herein shall be construed to require Widality to seek a waiver of any law, rule, regulation or restriction, or seek judicial review or appeal of any court order. Widality shall not have any liability to You arising from or related to the termination of this Agreement in accordance with this Section.

9. GENERAL.

1. Personal Information and Privacy. Widality agrees to protect Your privacy in accordance with Widality's privacy policy located at www.widality.com. Widality reserves the right to modify its privacy policy from time to time in its discretion. If personal information is disclosed to the third party distribution agent to facilitate the provision of the momentem Software or Services to You, the third party distribution agent's privacy policy will be applicable.

2. Force Majeure. Notwithstanding any other provision of this Agreement, neither party shall be deemed in default of this Agreement for failure to fulfill its obligations when due to causes beyond its reasonable control (including without limitation, if a third party distribution agent ceases to provide airtime, internet or other similar services to Widality at all or on commercially reasonable terms). This provision shall not be construed as excusing non-performance of any obligation by either party to make payment to the other party under this Agreement.

3. Waiver, Survival and Severability. Waiver by either party of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof by either or both parties shall so survive the completion of performance, cancellation or termination of this Agreement. If a provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of each party shall be construed and enforced accordingly.

4. Governing Law and Dispute Resolution. This Agreement is to be construed under the laws of the Province of Alberta, Canada excluding any body of law governing conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. All disputes between you and Widality shall be finally resolved through binding arbitration in Calgary, Alberta, Canada. If any court of competent jurisdiction holds any provisions of this Agreement invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement will remain in full force and effect.

5. Assignment. Widality may assign this Agreement without notice to You. You shall not assign this Agreement without the prior written consent of Widality (such consent may be withheld at Widality's discretion).

6. Notices. All notices or other communications under this Agreement shall be deemed to have been duly given when made in writing and delivered in person, by courier or deposited in the mail, return receipt requested and addressed to You at the billing address supplied to Widality or the third party distribution agent by You, or addressed to Widality at the office detailed at www.widality.com. In addition to the foregoing, Widality may, at its option, give You any notice under this Agreement by email or posting communications concerning this Agreement on its Site. Notice to You by email shall be deemed to have been duly given when transmitted to an email address furnished by You to Widality.

7. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the momentem Software and Services and there are no provisions, representations or collateral agreements between the parties other than as set out in this Agreement. Widality reserves the right to make changes to this Agreement by providing You with reasonable notice of the change by either email (as specified in Section 9(f) above) or by posting notice of the change at www.widality.com. If You continue to use the momentem Software and Services after notice of the change has been given, You shall be deemed to have accepted this change.

8. Language. It is the express will of the parties that this Agreement and all related documents be drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigées en anglais.