Term of Service – “My Water Tracker & Reminders”
Version Release Date: March, 2019
Notice Version: 1.0
Data Controller Contact Information
INFINITETECH MEDIA INC
This Terms of Service (this “Agreement”) is a contract between you (“You” or “User”) and INFINITETECH MEDIA INC, a Ontario limited liability company (hereinafter “INFINITETECH MEDIA”, “We”, or “Us”). You must read, agree to, and accept all the terms contained in this Agreement in order to use the following services and intellectual property (all collectively the “Services”):
a. The website owned by INFINITETECH MEDIA with top level domain 'mywatertrackerapp'.com’ (“My Water Tracker & Reminders Website”); or
b. The downloadable software in the nature of a mobile application called My Water Tracker & Reminders (“My Water Tracker & Reminders Mobile Application”), developed and owned by INFINITETECH MEDIA;
We reserve the right to change the terms of this Agreement at any time without notice to you by updating our Services to incorporate new terms. Your continued use of our Services after changes are posted constitutes your acceptance of the amended Agreement.
YOU UNDERSTAND THAT BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT TAKES EFFECT AT THE FIRST INSTANCE OUR SERVICES ARE EITHER DOWNLOADED, UTILISED, OR ACCESSED BY YOU. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE OUR SERVICES. IF YOU AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THIS AGREEMENT. IN THAT EVENT, “YOU” AND “YOUR” WILL ALSO REFER AND APPLY TO THAT ENTITY OR AGENCY.
1. ACCESS TO OUR SERVICES
1.1 INFINITETECH MEDIA grants You a personal, worldwide, revocable, non-sub-licensable, non-assignable and non-exclusive license to access and use the Services (the “License”), subject to this Agreement. This License is for the sole purpose of enabling You to use and enjoy the benefit of the Services as provided by INFINITETECH MEDIA, in the manner permitted by the terms of this Agreement.
1.2 The License is freely revocable and terminable by INFINITETECH MEDIA at any time, without cause and in the sole discretion of INFINITETECH MEDIA. Upon revocation or termination of the License, you shall, and hereby agree to, delete or destroy any materials (electronic or otherwise) owned by INFINITETECH MEDIA that are related to the Services and remain in your possession or control, and acknowledge that after such revocation or termination INFINITETECH MEDIA may deny your access to the Services in its sole discretion.
1.4 Pursuant to the License, if We have cause to believe that You:
(a) have failed to comply with the terms of this Agreement;
(b) are under the age of 13 or, in the absence of evidence showing that a parent or guardian has given permission to access the Services and agreed to this Agreement on Your behalf, under the age of 18; or
(c) have obtained illegal or unauthorized access to the account of another user;
We reserve the right to take all necessary measures to prohibit, either permanently or temporarily, Your access to all or part of the Services.
1.5 You agree that you are responsible for:
(a) Making all necessary arrangements that will enable you to have access to, and use the Services;
(b) Ensuring that all persons who access the Services through a device that you own or control comply with this Agreement;
(c) Keeping your password, login details and any other confidential information safe. Under no circumstances shall INFINITETECH MEDIA be liable for any loss or damage pursuant to this Agreement, resulting from your failure to prevent third parties from accessing confidential information under your control.
2. ACCEPTABLE USE POLICY
2.1 You shall not use our Services in any manner, or perform any act that:
(a) is, or could reasonably be construed to be, unlawful under applicable local, national or international law;
(b) is, or could reasonably be construed to be, in violation of this Agreement, fraudulent, misleading, malicious or discriminatory or in violation of any person’s privacy rights;
(c) is intended to harm or attempts to harm minors in any manner whatsoever;
(d) could disable, overburden, or impair the operation or availability of any of our Services;
(e) results, directly or indirectly, in the sending of any unsolicited or unauthorized advertising or promotional material;
(f) results in the transmission of any material that you are aware contains viruses, trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
(g) enables access to our Services using any automated means, including, without limitation, harvesting bots, robots, spiders, or scrapers;
(h) results in the bullying, harassment or intimidation of any person;
(i) would facilitate or encourage a violation of this Agreement;
(j) results in the licensing, sublicensing, selling, reselling, rental, leasing, transferal, assignment, distribution, time share or other commercial exploitation of our Services, or makes the Service(s) available to any third party;
(k) falsely implies any sponsorship or association with us;
(l) results in the posting, transmission, uploading, linkage to, sending or storage of any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory;
(m) decompiles, reverse engineers, or attempts to decompile or reverse engineer, the Services or any portion thereof;
(n) could otherwise result in INFINITETECH MEDIA incurring any reasonably foreseeable liability, damages, costs or expenses.
2.2 When You contribute, link or add any information, content or other data (“Your Content”) to our Services,
you must ensure that:
(a) all facts, statements and representations contributed are accurate;
(b) the sources of all facts, statements and representations contributed are verifiable and reliable;
(c) all opinions you contribute are based upon genuine information and belief;
(d) all materials contributed are not in breach of any intellectual property laws in the United States or any other relevant jurisdiction, including without limitation, copyright laws, trademarks, trade secrets, confidential information, and privacy laws;
(e) You have secured any necessary permission from any relevant third parties prior to doing so.
2.3 You must not, under any circumstances share your password, account or login details with any third party.
2.4 Usage of the Services by any of the following is strictly prohibited:
(a) any individual under the age of 13; or
(b) any individual under the age of 18 if a parent or guardian has not given the individual permission to access the Services and agreed to this Agreement on behalf of said individual.
3. PERMISSIONS AND CONTENT LICENSES
3.1 You accept and understand that our Services may contain links to third-party websites or apps, advertisers, services, special offers, or other events or activities that are not owned or controlled by INFINITETECH MEDIA. We do not endorse or assume any responsibility for any such third-party sites, apps, information, materials, products, or services. If you access any third-party website, app, service, or content via our Services, you do so at your own risk and you agree that INFINITETECH MEDIA will have no liability.
3.2 You agree that by submitting, posting or displaying Your Content via our Services, you grant INFINITETECH MEDIA and any other persons designated, expressly or impliedly by INFINITETECH MEDIA, including without limitation, its agents, employees, parent companies, subsidiaries and partners (its “Designees”), a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sub-licensable, license to use, copy, reproduce, process, adapt, perform, translate, modify, publish, transmit, display, analyze, commercialize or distribute Your Content in any and all media or distribution methods, in any way now known or discovered in the future (“Your Content License To Us”).
3.3 You agree that, unless expressly agreed otherwise in writing, no compensation will be payable to You in respect of Your Content License To Us;
3.4 You waive all moral rights (or similar or equivalent rights in other jurisdictions) in Your Content.
4. SUSPENSION AND TERMINATION BY US
4.1 You agree that the failure to comply with any duties or obligations, including without limitation those under Section 2, constitutes a material breach of this Agreement.
4.2 You agree that we shall not be liable to You or any other third party for suspension or termination of your account or access to or use of the Services, if such suspension or termination is in accordance with the terms of this Agreement.
4.3 You agree that if We have cause to believe that you are in breach of any of the terms of this Agreement, we
may take, or authorize any other user or person to take on our behalf, any and all reasonable remedial actions,
including but not limited to the following:
(a) the immediate withdrawal, either permanently or temporarily, of Your access to all or part of the Services;
(b) the immediate removal, either permanently or temporarily, of Your Content;
(c) the issuance of a warning to You;
(d) the commencement of legal action against You, including without limitation, proceedings for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs), resulting from the breach; or
(e) the disclosure of such information to law enforcement authorities as we reasonably believe is necessary.
4.4 We reserve the right to investigate violations of this Agreement or any other policies of INFINITETECH MEDIA or the Services, or any other violations of any state, federal or local law, rule or regulation.
4.5 You may elect to terminate your account at any time.
4.6 Effect of Termination of Your Account:
(a) Data Export: We strongly recommend that You export Your Content and all personal data that You have contributed, added or linked to the Services (“Your Data”) before You terminate your account. In any event, following the termination of your account either by You or Us, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once it is deleted.
(b) Charges: Within 5 business days of the date of termination, You must pay Us any outstanding amounts owed, if any, unless waived by Us in writing. We may waive any such amounts owed to Us by You if (i) We reasonably believe that You terminated the Services as a result of a material breach of this Agreement by Us, (ii) You provide advance notice of such breach to Us, and (iii) We are not able to reasonably cure such breach within 30 business days from receipt of said notice.
5. OUR CONTENT AND RELATED RIGHTS
5.1 You agree that all rights (including copyright, trademarks and other intellectual property rights), title, and interest in and to content or any other data on or within the Services (excluding Your Content or content added by other users of the Services), including but not limited to, all information, data, text, maps, graphics, the "look and feel", logos, icons, trademarks, images, video clips, sound clips, editorial content, notices, data compilations, page layout, selection or arrangement of the contents on our Services, and the underlying code and software in our Services (“Our Content”), are and will remain the exclusive property of INFINITETECH MEDIA and any applicable licensors of INFINITETECH MEDIA. All such rights to Our Content are reserved.
5.2 You must not copy, reproduce, republish, disassemble, decompile, reverse engineer, adapt, alter, edit, re-position, rebrand, change, distribute, lend, sell, sub-license or rent any part of Our Content unless we provide you with our prior express written consent to do so.
6. COPYRIGHT DISPUTE POLICY
6.1 We reserve the right to:
(a) delete or disable all or part of Your Content if said portion of Your Content is alleged to infringe the copyright of a third-party; or
(b) take all necessary measures to prohibit your access to the Services following repeated instances of copyright infringement by You.
6.2 You agree that this Agreement specifically incorporates the provisions set out in the Copyright Dispute Policy, as amended, at the date that You entered this Agreement.
7. OUR RELATIONSHIP WITH YOU
7.1 Nothing in this Agreement shall be deemed to constitute or create a partnership, agency or employment relationship, as a matter of fact, between You and INFINITETECH MEDIA.
THIS SECTION OF THE TERMS IS IMPORTANT AND YOU SHOULD READ IT CAREFULLY.
8.1 YOU AGREE AND UNDERSTAND THAT THE SERVICES ARE PROVIDED BY INFINITETECH MEDIA ON AN “AS IS” BASIS AND THAT INFINITETECH MEDIA AND ITS DESIGNEES DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, REPRESENTATIONS AND GUARANTEES INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
8.2 WITHOUT LIMITING THE FOREGOING, INFINITETECH MEDIA DISCLAIMS:
(A) ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, AVAILABILITY, SERVICE LEVELS, TIMELINESS, AND PERFORMANCE OF THE SERVICES;
(B) ALL LIABILITY FOR ANY CLAIMS, DAMAGES, LOSSES, COSTS OR EXPENSES (INCLUDING ATTORNEY'S FEES) RELATED TO THE PROVISION OF THE SERVICES, AND DOES NOT REPRESENT THAT: (1) THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS; (2) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR-FREE; (3) ANY RESULTS MAY BE OBTAINED FROM YOUR USE OF THE SERVICES, OR ANY DATA, CONTENT OR INFORMATION ON OUR SERVICES IS, OR WILL BE, VALID, ACCURATE, TIMELY, ADEQUATE, COMPLETE, LEGAL OR OTHERWISE RELIABLE; (4) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; OR (5) ANY ERRORS IN THE SERVICES WILL BE CORRECTED;
(C) ANY WARRANTIES FOR ANY INFORMATION, CONTENT OR ADVICE OBTAINED THROUGH THE SERVICES; AND
(D) ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE SERVICES.
9. LIMITATION OF LIABILITY
THIS SECTION OF THE TERMS IS IMPORTANT AND YOU SHOULD READ IT CAREFULLY.
9.1 YOU ACCEPT AND UNDERSTAND THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INFINITETECH MEDIA AND ITS
DESIGNEES WILL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY TO PROCEEDINGS, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR
ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS, REVENUES, GOODWILL AND BUSINESS OPPORTUNITIES, ARISING FROM OR IN ANY WAY CONNECTED
TO, WITHOUT LIMITATION:
(A) YOUR ACCESS TO OR USE OF THE SERVICES;
(B) YOUR PERFORMANCE OF ANY OBLIGATIONS UNDER THIS AGREEMENT;
(C) YOUR ACCESS TO OR USE OF A THIRD-PARTY APP OR SITE THAT IS REFERRED TO, DESCRIBED ON, REFERENCED OR LINKED TO THE SERVICES;
(D) YOUR DELAY IN USING, OR INABILITY TO ACCESS OR USE THE SERVICES;
(E) THE CONTENT OF ANY THIRD PARTY DISPLAYED ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONTENT CONTRIBUTED BY OTHER USERS OR THIRD PARTIES;
(F) THE CONDUCT OF ANY THIRD PARTY; OR
(G) ANY UNAUTHORISED ACCESS, USE OR ALTERATION OF YOUR CONTENT;
WHETHER BASED ON WARRANTY, CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 NOTWITHSTANDING THE EXCLUSIONS SET OUT IN THESE TERMS, IF WE ARE FOUND TO BE LIABLE TO YOU, OUR TOTAL AGGREGATE LIABILITY TO YOU (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN STATUE OR OTHERWISE) FOR ALL AND ANY DAMAGES, LOSSES OR CAUSES OF ACTION ARISING, BY REASON OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SERVICES, SHALL BE LIMITED TO THE GREATER OF: (I) THE TOTAL FEES PAID BY YOU IN THE 12 MONTHS PRECEDING COMMENCEMENT OF THE CLAIM, IF ANY, TO USE OR ACCESS ANY PART OF THE SERVICES; OR (II) $70.
THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, AND SHALL NOT APPLY TO ANY DAMAGE TO YOU INTENTIONALLY CAUSED BY INFINITETECH MEDIA IN VIOLATION OF THIS AGREEMENT OR APPLICABLE LAW, OR AS OTHERWISE MANDATED BY APPLICABLE LAW THAT CANNOT BE DISCLAIMED BY THIS AGREEMENT.
10. YOUR RESPONSIBILITY
THIS SECTION OF THE TERMS IS IMPORTANT AND YOU SHOULD READ IT CAREFULLY.
10.1 YOU ARE RESPONSIBLE, AND ASSUME ALL LIABILITY, FOR ALL CONTENT THAT YOU LINK TO, CONTRIBUTE OR ADD TO OUR SERVICES.
10.2 YOU AGREE THAT INFINITETECH MEDIA AND ITS DESIGNEES WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY REPRESENTATIONS OR CONTRIBUTIONS MADE BY OTHER USERS OR THIRD PARTIES.
10.3 IF A DISPUTE ARISES BETWEEN YOU AND ANOTHER USER OR THIRD PARTY, YOU SHALL, AND HEREBY AGREE TO, RELEASE INFINITETECH MEDIA AND ITS DESIGNEES, FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF ANY KIND AND NATURE, KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH SAID DISPUTE.
10.4 YOU SHALL, AND HEREBY AGREE TO, INDEMNIFY AND HOLD HARMLESS, INFINITETECH MEDIA AND ITS DESIGNEES, ON DEMAND, FROM ANY AND ALL LIABILITIES, CLAIMS, DAMAGES AND LOSSES (CALCULATED ON A FULL INDEMNITY BASIS) AND ALL OTHER REASONABLE COSTS AND EXPENSES (INCLUDING COSTS OF DEFENCE OF CLAIMS, SUITS OR PROCEEDINGS BROUGHT BY THIRD PARTIES) SUFFERED OR INCURRED BY INFINITETECH MEDIA ARISING OUT OF OR IN CONNECTION WITH YOUR: (I) BREACH OF, OR FAILURE TO COMPLY WITH ANY TERMS IN THIS AGREEMENT; (II) USE OF THE SERVICES; OR (III) ENGAGEMENT IN ANY ACTIVITY CONDUCTED ON OR THROUGH, OR REASONABLY RELATED TO THE SERVICES.
11. YOUR DATA AND INFORMATION
11.3 You understand and accept that INFINITETECH MEDIA is not responsible for keeping or maintaining a copy or details of any of Your Content. In the event that the Services are withdrawn or shutdown, INFINITETECH MEDIA is under no obligation to provide you with a copy of Your Content.
11.4 By using our Services, you consent to the storage of your personally identifiable information on servers that may, for a period, be outside the United States.
12. GOVERNING LAW AND JURISDICTION
12.3 INFINITETECH MEDIA reserves the right to limit the availability of the Services, and any other products or services of INFINITETECH MEDIA, to any person, geographic area, or jurisdiction, in any manner and at any time, in its sole discretion.
13.1 You agree that if any clauses in this Agreement are found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and in such event, such provision shall be changed and/or interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
14. ENTIRE AGREEMENT
14.1 You agree and understand that the Services are provided on an “As Is” and “As Available” basis.
14.2 You agree and understand that this Agreement (inclusive of any other Policies or Agreements referenced or incorporated herein) are the entire and exclusive agreement between INFINITETECH MEDIA and You regarding your use of the Services. The terms of this Agreement supersede and replace any and all prior agreements between INFINITETECH MEDIA and You regarding the Services.
14.3 You warrant that you have not, in agreeing to the terms of this Agreement, relied on any representation, warranty or undertaking not expressly incorporated herein.
15. DISPUTE RESOLUTION
15.1 If you have any issues, wish to make a complaint or have a dispute relating to this Agreement, we strongly encourage you to first contact us directly to seek a resolution via e-mail at firstname.lastname@example.org. INFINITETECH MEDIA reserves the right to determine at its sole discretion the means, methods and processes by which issues will be resolved, with the goal of a satisfactory resolution for all parties.
16. SPECIAL TERMS REGARDING USE OF APPLE’S APP STORE
16.1 If you download or access any part of the Services via the App Store owned and operated by Apple, you agree
to the following:
(a) This Agreement is between You and INFINITETECH MEDIA only, and not with Apple;
(b) This Agreement is not intended to provide for usage rules for software that are less restrictive than the Usage Rules set forth for "Licensed Applications" in, or that otherwise conflict with, the App Store Terms of Service;
(c) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services;
(d) In the event of any failure of the Services to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you;
(e) to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services;
(f) Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iv) claims arising under consumer protection or similar legislation.
(g) Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the App infringe that third-party's intellectual property rights;
(f) To comply with any applicable third-party terms when using the Services;
(g) Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary;
16.2 If you download or access any part of the Services via the App Store owned and operated by Apple, you hereby 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.
17. REVISIONS AND INTERPRETATION OF THESE TERMS
17.1 You accept and understand that we may revise this Agreement from time to time. The most current version will always be available on our website. If, in our opinion, the revision is material, we will notify you of the material revision via an e-mail to the email associated with your account.
17.2 You agree to be bound by any revised version of this Agreement, with or without formal notification, once published on our Services, from the date of such publication, by continuing to access our Services after any such revision has been published on the website. We strongly encourage you to review the Terms of Service published on the My Water Tracker & Reminders Website or My Water Tracker & Reminders Mobile Application from time to time.
17.3 You agree that, if this Agreement is translated into another language, the English version of the Agreement shall govern in the event of any conflict or ambiguity arising from the translation.