The following are terms of a legal agreement (“Agreement”) between Aterlo Networks Inc. (“Aterlo”, “Our”, “Us” or “We”) and you (“You” or “Your”) and applies to Your use of the Services (as defined below).
IMPORTANT! If You are being directed to this Agreement because you are purchasing a product or service from someone other than Aterlo that happens to include services from Aterlo, please read this first.
1. Description of the Services. Aterlo operates network management service known as ‘Preseem’ (the “Preseem Service”). The Preseem Service is a cloud based Network Telemetry platform that consumes key network metrics at high granularity and short intervals. A number of applications are built on this platform such as, but not limited to, the ability to understand and optimize end user Quality of Experience. The services offered by Aterlo include: (i) the Preseem Service; (ii) any Preseem-branded software; (iii) those offered on any Preseem-branded URL, including www.preseem.com (the “Website”); and (iv) any other features, content, or applications offered or operated from time to time by Aterlo in connection with Aterlo’s business (collectively, “Services”).
4. Acceptance. By accessing, receiving, and/or using the Services, You agree, without limitation or qualification, to be bound by and to comply with this Agreement, Other Terms, Additional Terms and Applicable Laws. If You do not agree to be bound by this Agreement (and any applicable Other Terms or Additional Terms) and to abide by all Applicable Laws, then You are not authorized to use the applicable Services and must immediately discontinue use and permanently delete all software components in your possession that were provided by Aterlo in relation to the Services.
5. Use of the Services on Behalf of an Organization. If You are using the Services on behalf of an organization: (i) You are agreeing to this Agreement for that organization and represent and warrant to Aterlo that You have the authority to bind that organization to this Agreement (in which event, “You” and “Your” will refer to that organization) unless that organization has a separate contract in effect with Us, in which event the terms of that contract will govern Your use of the Services; (ii) You may use the Services only in compliance with this Agreement and only if You have the power to form a contract with Aterlo and are not barred under any Applicable Laws from doing so; and (iii) Your use of the Services shall be governed by this Agreement, except where any separate agreement made between You and Us governing Your Account expressly supersedes or prevails over this Agreement. If, after acceptance of this Agreement, We find that You do not have the legal authority to bind such organization, You will be personally responsible for the obligations contained in this Agreement.
6. Location of Provision of the Services and Location of Data. While Aterlo operates from Canada, the Services, information that we collect and Network Data (as defined below) are transferred to and hosted in the United States and other jurisdictions. As part of Your use of the Services, You consent to the transfer of Network Data, personal information and Your Content (as defined below) outside of Canada. Network Data, Your information and Your Content may become, during the period that they are hosted outside Canada, subject to the laws of the jurisdiction in which the servers hosting them reside and/or to the terms of agreements respecting the hosting of data on such servers. Although We have made reasonable efforts to verify that Our agreements with such server providers are reasonably protective of Your data, We do not accept liability for any acts or omissions of third parties in relation to such servers and the data stored on them, and You release Us from all liability for any governmental or third party action taken in such jurisdictions with respect to such data and/or the servers on which such data resides. Aterlo does not represent that Content (as defined below) or other materials presented on or through the Services are appropriate or available for use in other locations or jurisdictions. If You access the Services from a jurisdiction other than Canada, You agree that You do so on Your own initiative, and are responsible for compliance with local laws.
1. Eligibility. Use of the Services is void where prohibited. By using the Services, You represent and warrant that: (a) all registration information You submit to Aterlo is truthful and accurate; (b) You will maintain the accuracy of such information; and (c) Your use of the Services does not violate any Applicable Law.
2. Modification of this Agreement. Aterlo, in its sole and absolute discretion, may change or modify this Agreement and any of the Other Terms or Additional Terms, at any time, and such changes or modifications shall be effective immediately upon posting to the Website. You acknowledge and agree that: (i) Aterlo may notify You of such changes or modifications by posting them to the Website and/or the Preseem Service (including, without limitation, by notification through the Preseem Service’s sign-in processes) or by e-mail; and (ii) Your use of the Services after such changes or modifications have been made (as indicated by the “Last Updated” date at the top of this page) shall constitute Your acceptance of this Agreement as last revised. If You do not agree to such amended or modified Agreement, then You must immediately stop using the Services and terminate this Agreement in accordance with Section 17.
3. Changes to the Services. We continually update and test various aspects of the Services, including features, functions and user interfaces. We reserve the right to, and by using the Services You agree that We may, include You in or exclude You from these tests without notice. We reserve the right in Our sole and absolute discretion to make changes from time to time and without notice in how We offer and operate the Services. Aterlo reserves the right to modify, suspend or terminate the Services (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice or liability to You. Without limiting the foregoing, Aterlo may provide notice of any such changes to the Services by posting them on the Website and/or via the Services. Aterlo reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Services at any time. We may add or remove functionalities or features, and We may suspend or stop a Service altogether. You agree that Aterlo shall not be liable to You or any party for any modification or cessation of the Services. You acknowledge that Aterlo has no express or implied obligation to provide, or continue to provide, the Services, or any part thereof, now or in the future; and in addition, Aterlo may at any time, upon prior notice and/or as required by Applicable Law, institute or revise fees for the Services. Aterlo reserves the right to modify or replace any of its policies and practices related to the Services. To the extent that any of the foregoing requires a modification of this Agreement, such modification will be made in accordance with Section 2.2 above.
3. OWNERSHIP AND RESERVATION OF RIGHTS
All trademarks, service marks, patents, copyrights, trade secrets and other intellectual property or proprietary rights in or related to the Services are and will remain the exclusive property of Aterlo or its licensors, whether or not specifically recognized or perfected under local law. You will not acquire any rights in the Services except the limited use right specified in this Agreement. The Services are confidential and proprietary information of Aterlo or its licensors. You agree to take adequate steps to protect the Services from unauthorized disclosure or use.
4. THE SERVICES
1. Rights to use the Services. Provided You comply at all times with this Agreement, pay all applicable fees, and otherwise remain subject to the terms and conditions of this Agreement, Aterlo hereby grants You, and You hereby accept from Aterlo, a personal, non-exclusive, non-assignable, non-transferable, revocable, limited right to (i) access and use the Services; (ii) install Components (as defined below) on Your Environment (as defined below); and (iii) to use Components for the sole purpose of enabling You to use the Services in the manner permitted by this Agreement. For greater certainty, you may use the Services and Components only in the context of managing networks and systems in Your Environment, unless You use the Services and Components to provide network management services to a third party, in which case You are solely responsible for such relationship, and will indemnify, defend and hold Aterlo harmless from and against any claims made by such third party in relation to Your services, including the Services and Components used by You to provide the services. Your use of the Services and Components must be in strict compliance with this Agreement and all Applicable Laws.
2. Access to Your Environment. In order to use the Preseem Services, You must download and install certain software components made available by Aterlo (“Components”) on Your network environment and systems, or on a third party network environment and systems for which you have been expressly authorized by such third party to provide network management services (“Your Environment”) that, when loaded and approved by You, will, among other things, (i) allow communication between Us and Your Environment and any Device that is connected to Your Environment (collectively, “Your Network”); (ii) allow Us to inspect the traffic on Your Network; and (iii) extract data from Your Network and transfer such data to the Services and otherwise to Us. You acknowledge and agree that by installing and using Components, You hereby authorize and allow Aterlo during the term of this Agreement to inspect the traffic on Your Network and to extract data from and about Your Network for the purposes of providing the Services to You, and You represent and warrant that you have all rights to grant such authorization on behalf of any third party to whom you are providing network management services by using the Services. You are wholly responsible for configuring Your Network (including, but not limited to, the Devices connected to Your Network) for adequate security and protection. We do not guarantee that errors or irregularities will not occur, or that errors or irregularities will be detected should they occur. You are fully and solely responsible for applying independent business judgment with respect to the Services and Your Network, to make implementation decisions, if any, and to determine further courses of action with respect to any matters addressed in the Services in relation to Your Network.
3. Components. For greater certainty, all Components are part of the Services. All Components are licensed, not sold. Unless We notify You otherwise, the Components license ends when Your access to the Services ends. You must then promptly uninstall and permanently delete the Components, or We may disable them. You must not work around any technical limitations in the Components. When You install and use the Components, We may automatically check Your version of the Components. You understand that the Components are evolving. As a result, We may require You to accept updates to the Components that You have installed. We may also automatically download to Your systems and Devices new versions of the Components, and by using the Services and agreeing to this Agreement, You consent to such automatic updates and downloads. You acknowledge and agree that We may update the Components with or without notifying You. You may need to update third party software from time to time in order to use the Components. If at any time You wish to revoke Your consent to such automatic updates and downloads, You may do so at any time by contacting Us. However, if You do so, We may terminate Your access to the Services, as provision of the Services may be dependent upon Our Users having the most up to date versions of Components.
4. Your Account, Password, and Security. In order to access and use the Preseem Services, We require You to open an account with Aterlo (“Account”). Opening an Account requires You to complete an online registration process by providing Us with current, complete and accurate information as prompted by Us during the registration process. You represent and warrant to Us that all information that You submit when You register for Your Account is accurate, current and complete, and that You will keep Your Account information accurate, current and complete. You may be required to choose a password for Your Account. You are entirely responsible for maintaining the confidentiality of Your password and Account. Furthermore, You are entirely responsible for any and all activities that occur under Your Account. You agree to notify Aterlo immediately of any unauthorized use of Your Account or any other breach of security. Aterlo will not be liable for any loss that You may incur as a result of someone else using Your password or Account, either with or without Your knowledge. However, You could be held liable for losses incurred by Aterlo or another party due to someone else using Your Account or password. The foregoing liability provisions shall survive the termination or expiration of this Agreement. You may not use anyone else’s Account at any time without the permission of the Account holder.
5. Acceptable Use. You shall not use the Services in any fashion except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, You shall not, and shall not encourage or assist any third party to, directly or indirectly, do any of the following acts: (i) sell, reproduce, modify or attempt to modify the Services or any of Aterlo’s Content (as defined below) in any way; (ii) reverse engineer, disassemble or decompile any software used to provide or access the Services (including, without limitation, the Preseem Service and/or Components), or attempt to discover or recreate the source code used to provide or access the Services; (iii) use any of the Services in any manner or for any purpose other than as expressly permitted by this Agreement, Other Terms or Additional Terms; (iv) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to You with respect to the Services to any third party; (v) remove, obscure or alter any proprietary rights notice pertaining to the Services; (vi) access or use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; (vii) use the Services to engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (viii) use the Services to post any inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (ix) interfere with or disrupt servers or networks used by Aterlo to provide the Services or used by other Users to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another User’s full use and enjoyment of any Software or the Services; (x) cause, in Aterlo’s sole discretion, inordinate burden on the Services or Aterlo’s system resources or capacity; (xi) modify, translate, or create derivative works based on any portion of the Services or any Aterlo Content; (xii) access or use the Services in order to build a competitive product or Services or copy any features or functions of the Services; (xiii) circumvent or modify, attempt to circumvent or modify, or encourage or assist any other party in circumventing or modifying any security technology or software that is part of the Services; (xiv) impersonate or attempt to impersonate Aterlo or Our employees (including, without limitation, the use of e-mail addresses associated with any of the foregoing); (xv) use the Account, username, or password of another User of the Services at any time; or (xvi) violate any Applicable Law. You acknowledge and additionally agree that We reserve the right to stop any conduct that restricts or inhibits other Users of the Services from fully utilizing and enjoying the Services and, further, We reserve the right to act to delete any and all Content (as defined below) that contravenes any of this Agreement or which may otherwise have a negative impact on the safe, respectful, legal, friendly and courteous operation of the Services.
5. FEES AND TAXES
1. In consideration for providing the Services to You, You shall pay Us in accordance with Our fee schedule and fee policies that are applicable to the Services and that are in effect at the time that you purchase the Services, unless otherwise agreed upon by You and Us in writing and in advance. Fees are based on Active Devices and Subscribers. Payment obligations are non-cancellable and fees paid are non-refundable; for greater certainty, any fees that have pre-paid by You for Services that are unused due to any early termination of this Agreement shall not be refundable. The base subscription fee for the Services is payable in advance, and any billable items over what’s included in the subscription are payable in arrears.
2. Where You pay fees by means of a credit card, You authorize Us to automatically charge You for any and all fees incurred by You for Services. If Your credit card is rejected for any reason, You will be responsible for any fees and charges associated with such rejection. The foregoing shall not limit Our ability to exercise any rights available to it in law or equity respecting the collection of any amounts payable here under.
3. If You fail to pay any amount due under this Agreement within thirty (30) days of such payment becoming due and payable, in addition to any other rights and remedies available to Us, We shall be entitled to charge interest on all outstanding amounts at the lesser of 1.5% per month or the maximum rate permitted by law, such interest commencing as of the due date for such payment. You shall also be responsible for paying for all reasonable fees and costs incurred by Us, including legal fees, in collecting any overdue amounts or enforcing any provision of this Agreement.
4. You are responsible for, and shall pay all taxes relating to this Agreement, excluding any taxes based on Our net income. Unless otherwise indicated, all amounts payable by You under this Agreement are exclusive of any tax, duty, levy, or similar government charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the Services, the execution of this Agreement or otherwise. If You are required to withhold any taxes from payments owed under this Agreement, the amount of payment due shall automatically be increased to offset such tax, so that the amount actually remitted to Us shall equal the amount invoiced or otherwise due.
6. THIRD PARTY TECHNOLOGY
The Services may contain features or functionality designed to inter-operate and/or integrate with software, applications or services that are provided by parties other than Aterlo or You (“Third Party Services”). To use such features, You may be required to obtain access to such Third Party Services from their providers (which may require You to pay fees to the provider of such Third Party Services). We do not endorse and are not responsible or liable for the products or services provided by such third parties. We are not responsible for the operation or functionality of any Third Party Services. You are solely responsible for Your use of any Third Party Services, and for compliance with any terms and conditions applicable to such Third Party Services. ANY THIRD PARTY SERVICES DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH YOUR USE OF THE SERVICES IS DONE SO AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR SYSTEMS, DEVICES, NETWORKS, INTERNET ACCESS, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH THIRD PARTY SERVICE. If the provider of any such Third Party Services ceases to make the Third Party Services available for interoperation with the corresponding Services features or functionality, We may cease providing such features or functionality.
anipulation of data; (viii) use the Services to post any inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (ix) interfere with or disrupt servers or networks used by Aterlo to provide the Services or used by other Users to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another User’s full use and enjoyment of any Software or the Services; (x) cause, in Aterlo’s sole discretion, inordinate burden on the Services or Aterlo’s system resources or capacity; (xi) modify, translate, or create derivative works based on any portion of the Services or any Aterlo Content; (xii) access or use the Services in order to build a competitive product or Services or copy any features or functions of the Services; (xiii) circumvent or modify, attempt to circumvent or modify, or encourage or assist any other party in circumventing or modifying any security technology or software that is part of the Services; (xiv) impersonate or attempt to impersonate Aterlo or Our employees (including, without limitation, the use of e-mail addresses associated with any of the foregoing); (xv) use the Account, username, or password of another User of the Services at any time; or (xvi) violate any Applicable Law. You acknowledge and additionally agree that We reserve the right to stop any conduct that restricts or inhibits other Users of the Services from fully utilizing and enjoying the Services and, further, We reserve the right to act to delete any and all Content (as defined below) that contravenes any of this Agreement or which may otherwise have a negative impact on the safe, respectful, legal, friendly and courteous operation of the Services.
If You need assistance with Your Account or the Services, please visit the support portions of the Website and/or the Service. There You will find the answers to many frequently asked questions and information on reaching a support representative. In certain instances, We may best be able to assist You by using a remote access support tool through which We have full access to your Devices and Your Networks. If You do not want Us to have this access, You should not consent to support through the remote access support tool, and We will assist You through other means. Although We will make commercially reasonable efforts to resolve any issues You may have, We make no guarantees whatsoever with respect to the provision of a solution, and the warranty disclaimer in Section 14 applies to all support that we provide. In the event of any conflict between this Agreement and information provided by Our customer service representatives or other portions of the Website, this Agreement will control.
9. NETWORK DATA AND METADATA
1. Network Data. As between the parties, You retain all right, title and interest in and to Network Data (as defined below) and We only have and obtain the rights to Network Data that are set out in this Agreement. In this Agreement, “Network Data” means (i) data in respect of Your Network (including, Your Environment and inspected network traffic) provided by You to Us during the course of accessing and using the Services; and/or (ii) data or information that is generated by or derived from Your use of the Services (including, but not limited to, through the use of Components); and/or (iii) data or information that is generated or derived from Our access to Your Network (including, without limitation, the systems or Devices connected to Your Environment).
2. Metadata. Aterlo is continuously looking for ways to optimize and improve the Services and Our business generally. Creating and generating Metadata (as defined below) helps Us in that regard. We will, from time to time, create anonymous data and records derived from or generated by Network Data (collectively, “Metadata”). By using the Services, You hereby grant to Us a world-wide, fully-paid, royalty-free, perpetual, unrestricted, transferable, sub-licensable, right and license to use Network Data for the purposes of creating Metadata. We exclusively own all rights, including, but not limited to, intellectual property rights, in and to all Metadata and We are entitled to the unrestricted use and dissemination of all Metadata for any purpose (commercial or otherwise).
1. Your Content. Aterlo does not claim any ownership rights in the text, files, documents, reports, results, information, bulletins, images, logos, photos, video, works, works of authorship, applications, or any other materials (collectively, “Content”) that You transmit, submit, display or publish (“post”) on, through or in connection with the Services. After posting Your Content on, through or in connection with the Services, You continue to retain any such rights that You may have in Your Content, subject to the limited license granted by You in this Agreement. By posting any Content on, through or in connection with the Services, You hereby grant to Aterlo non-exclusive, transferrable, sublicensable, royalty-free, fully paid, perpetual, worldwide limited license to use, modify, delete from, add to, combine with other content, publicly display, reproduce, transmit, and distribute such Content solely on, through or in connection with the Services and solely for the purpose of making the Services available to You and Users. You represent and warrant that: (i) You own the Content posted by You on, through or in connection with the Services, or otherwise have the right to grant the license set forth in this Section 10.1; (ii) the posting of Your Content on, through or in connection with the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any party; and (iii) no fees or payments of any kind shall be due by Aterlo to any organization for the distribution of Your Content as contemplated by this Agreement and You agree to pay for all royalties, fees, and any other monies owing to any party by reason of the use of any Your Content. You agree to pay for all royalties, fees, and any other monies owing to any party by reason of the use of any Content posted by You on or through the Services.
2. User Content. The Services may contain Content posted by Users (“User Content“). Except as otherwise provided within this Agreement, or in any Other Terms or Additional Terms, You may not copy, download, communicate, make available, modify, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any User Content appearing on or through the Services.
3. Aterlo’s Responsibility for Content. Aterlo may delete any Content (including, but not limited to, Your Content) that in the sole judgment of Aterlo violates this Agreement or which may be offensive, illegal or violate the rights of any party, or harm or threaten the safety of any party. Aterlo assumes no responsibility for monitoring the Services for inappropriate Content or conduct. If at any time Aterlo chooses, in its sole discretion, to monitor the Services, Aterlo nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the party submitting such Content. Aterlo cannot, does not and will not guarantee the accuracy, completeness and quality of any Content appearing on, transmitted through, or otherwise made available by, the Services, including, but not limited to, any Aterlo Content or User Content. You acknowledge and agree that reliance on any Content accessible through the Services is solely at Your own risk. WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR THE USE, MISUSE OR RELIANCE ON ANY CONTENT.
We welcome Your feedback and comments regarding the Services. By submitting or providing Us with comments, messages, suggestions, ideas, concepts, feedback or other information about the Services, Aterlo and/or its operations (collectively, “Submissions”) You thereby and hereby: (a) represent and warrant that none of the Submissions are confidential or proprietary to You or to any other party; (b) represent and warrant that none of the Submissions breach any agreement to which You are a party; and (c) grant Aterlo an exclusive fully paid-up, royalty-free, perpetual, irrevocable, unrestricted, transferable, sub-licensable, worldwide right and license to use, share and commercialize Your Submissions in any way and for any purpose. You also waive in favour of Aterlo and its successors and assigns any and all of Your moral rights in and to all Submissions. These rights survive this Agreement.
13. TEST OR “BETA” FEATURES
From time to time, We may offer new “beta” features or tools for the Services for You to evaluate. Such features or tools are offered solely for experimental and evaluation purposes and without any warranty or condition of any kind, and may be modified or discontinued at any time at Our sole discretion.
13. WARRANTY DISCLAIMER
TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE SERVICES (INCLUDING, BUT NOT LIMITED TO, YOUR ACCESS TO AND USE OF THE SERVICES) ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. ATERLO MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE SERVICES (INCLUDING, WITHOUT LIMITATION, (A) THE PERFORMANCE OF THE SERVICES OR ITS FAILURE TO PERFORM, (B) THE AVAILABILITY OR RELIABILITY OF THE SERVICES, (C) THE FUNCTIONS, CONTENT AND INFORMATION MADE ACCESSIBLE OR AVAILABLE ON OR THROUGH THE SERVICES, AND (D) COMPONENTS); AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR DATA TRANSMITTED TO OR FROM ATERLO, YOU OR OTHERS VIA THE SERVICES.
At Aterlo’s request, You will defend, hold harmless, and indemnify Aterlo and its directors, officers, employees, agents, subsidiaries, affiliates and each of their successors from and against all third party claims, actions, demands, proceedings, damages, costs and liabilities of any kind (collectively, “Claims”) to the extent that the Claims arise out of or relate to Your use of the Services, Your Content or Your breach of Your warranties or obligations under this Agreement.
16. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL ATERLO AND/OR ITS LICENSORS OR REPRESENTATIVES (INCLUDING DIRECTORS, OFFICERS AND EMPLOYEES) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, DAMAGES CAUSED BY DELAYS, FAILURE TO REALIZE EXPECTED SAVINGS, OR USE OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OR OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF THIS AGREEMENT, INCLUDING BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE LIMITED EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN ADDITION, IN NO EVENT WILL ATERLO’S CUMULATIVE OR AGGREGATE LIABILITY TO YOU OR ANY OTHER PARTY FOR DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS (USD $100.00).
17. TERM AND TERMINATION
The term of this Agreement starts upon Your acceptance of this Agreement and continues until it is terminated as provided for in the terms of this Section 17. Any termination of this Agreement must be by written notice by either party (e-mail is accepted, provided that Your notice comes from the e-mail address associated with Your Account). You may terminate this Agreement by providing at least thirty (30) days’ written notice to Aterlo. Your payment obligations for Services shall continue during such notice period. Aterlo may suspend or terminate the Services and/or this Agreement for any reason at any time, with or without cause, and with or without notice. You may terminate this Agreement and Your Account at any time by notifying Aterlo of such termination. Upon the termination of this Agreement for any reason, all rights granted to You hereunder will cease, and You must promptly purge and remove all Components from Your Environment. Termination of any Services includes removal of access to such Services and barring of further use of the Services. Termination of all Services also includes deletion of Your password and all related information, files and data associated with or inside Your Account, including Network Data. Except as otherwise set forth in this Agreement, upon termination of any Service, Your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Network Data associated therewith from Our live databases. We will not have any liability whatsoever to You for any suspension or termination, including for deletion of Network Data. All provisions of this Agreement, which by their nature should survive, shall survive termination of Services, including, without limitation, ownership provisions, Your payment obligations, warranty disclaimer, limitations of liability, indemnities and Sections 18 to 24.
You agree that We may include Your name, logo and/or trademarks in a list of Our Users or customers, on the Website and/or in other promotional materials. You also agree that We may verbally reference You as a User of the Services. You may withdraw the permissions granted to Us in this Section 18 by e-mailing a request to Aterlo.
Where We require that You provide an e-mail address, You are responsible for providing Us with Your most current e-mail address. In the event that the last e-mail address You provided to Us is not valid, or for any reason is not capable of delivering to You any notices required/permitted by this Agreement, Our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You consent to receive all communications including notices, agreements, disclosures, or other information from Us electronically. We may provide all such communications by e-mail or by posting them on the Services. You must send notices of a legal nature to our office headquarters. Nothing herein shall limit Our right to object to subpoenas, claims, or other demands, and We also reserve the right to provide You with notices by other means, such as by mail, courier or facsimile.
19. EXPORT CONTROLS
Components and other software available in connection with the Services (the “Software“) may be further subject to Canadian and United States import and/or export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of Canadian, U.S. export laws. Downloading or using the Software is at your sole risk and subject to compliance with all Applicable Laws.
21. GOVERNMENT USE
If you are a U.S. government entity, you acknowledge that any Services provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
22. COMPLIANCE WITH LAWS
Aterlo reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Aterlo to disclose the identity and information of anyone posting any e-mail or other messages, or publishing or otherwise making available any Content or Your Content that is believed or alleged (reasonably or not) to violate this Agreement or any Applicable Law. You acknowledge and agree that Aterlo may investigate any violations of law and may cooperate with law enforcement authorities in this regard.
23. GOVERNING LAW
This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province without regards to conflict of laws principles. The parties hereby expressly and irrevocably attorn to the exclusive jurisdiction of the courts in the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement.
This Agreement (and the documents referred to herein, including, without limitation, Other Terms and Additional Terms) constitute the entire agreement between You and Us in relation to the use of the Services, and replace and extinguish all prior agreements, arrangements or undertakings of any nature made by the parties, whether oral or written, in relation to such subject matter. The division of this Agreement into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The failure of Aterlo to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. You may not transfer or assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Aterlo and any such assignment shall be null and void from the beginning. This Agreement shall enure to the benefit of and be binding upon Aterlo’s or Your respective permitted successors and assigns.
25. THIRD PARTY AGREEMENT
If You have been directed to this Agreement because you are purchasing a product or service from someone other than Aterlo (the “Third Party Vendor”) that includes services from Aterlo, the following provisions will apply to you:
(a) Any terms of this Agreement relating to Your payment obligations to Aterlo shall be deemed superseded by the terms of Your agreement with the Third Party Vendor.
(b) Aterlo has no support obligations or liability directly to You. Any support obligations or liability shall solely be those offered to You by the Third Party Vendor.
(c) You are subject to all terms and conditions imposed by the Third Party Vendor in relation to Your use of the products or services of the Third Party Vendor (the “Third Party Items”) and/or your use of Preseem Services in conjunction with the Third Party Items, as applicable. Such Third Party Vendor may impose additional restrictions, or may have additional rights, in relation to your use of the Preseem Services in conjunction with the Third Party Items; it is solely your responsibility to ensure that you are aware of and comply with the terms and conditions imposed by the Third Party Vendor.To the limited extent that this Agreement is less restrictive than the usage rules or terms and conditions of the Third Party Vendor, or is in direct conflict with, Your agreement with the Third Party Vendor, solely as they relate to your obligations to the Third Party Vendor or the Third Party Items, Your agreement with the Third Party Vendor shall prevail.
(d) You acknowledge that Your agreement with the Third Party Vendor is concluded solely between you and the Third Party Vendor, and not with Aterlo, and Aterlo shall have no responsibility whatsoever respecting the Third Party Items (including without limitation in relation to the sale, distribution or use thereof, or the performance or non-performance thereof). Aterlo is responsible only for the Preseem Services.
(e) To the extent necessary to enable Aterlo to enforce the provisions of this Agreement respecting Your usage of the Preseem Services, Aterlo shall be deemed a third party beneficiary of Your agreement with the Third Party Vendor, and will have the right to enforce the terms of Your agreement with the Third Party Vendor against you as a third party beneficiary thereof.
If you have questions about our Terms of Service, feel free to contact us.