End User License Agreement
Last updated: March 8th, 2012
READ THIS LICENSE CAREFULLY BEFORE INSTALLING THIS SOFTWARE. INSTALLING THIS SOFTWARE MEANS THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE YOU MUST PROMPTLY RETURN THE SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT OR, ALTERNATIVELY, DELETE AND DESTROY ALL COPIES OF IT. THE FORM OF THIS LICENSE MAY CHANGE FROM TIME TO TIME. BY ACCEPTING THE TERMS OF THIS LICENSE, YOU ACKNOWLEDGE THAT THE CHANGES MADE FROM TIME TO TIME WILL BE BINDING ON YOU. ANY REVISIONS TO THE FORM OF LICENSE WILL BE POSTED ON THE TETHER.COM WEBSITE. YOU AGREE TO BE BOUND BY THE MOST CURRENT VERSION OF THE LICENSE POSTED ON THAT SITE.
- License. The application, demonstration, system and other software and data accompanying this License, whether on disk, in read-only memory, or on any other media, together with the related documentation, and all upgrades and updates of and to any of the above, (collectively, the “Software”) are licensed to you by 3235106 Nova Scotia Limited (“3235106”). Download two pieces of software; one for your computer, and the other, for your smartphone or wireless device. We refer to smartphones and wireless devices as “smartphones” in this License. The term “Software” includes both types of software. 3235106 owns or licenses the Software, all of which is protected by Canadian and foreign intellectual property laws. 3235106 retains full and complete title to the Software and all updates and subsequent copies of the Software regardless of the media or form in which the copies may exist, including copies made in violation of the terms of this License.
- Rights and Restrictions on Use. In consideration of your paying the license fees (which may be changed from time to time), this License allows you a non-exclusive, personal, non-assignable, non-transferrable (except as set forth herein), revocable license and right to use the Software to process your own data only for internal purposes (and not for the provision of service bureau or the provision of similar services to others). You may: (a) use the Software, where “use” means load, transmit, execute, store or display the Software in the form provided to you by 3235106, either directly on a single computer or remotely on a single server through a terminal, and if the Software is installed in a multi-user computer configuration, use rights must be obtained for each person or entity using the Software; and (b) copy the Software, in whole or in part, for backup or archival purposes, but only as long as you reproduce and include on each copy 3235106's copyright and other proprietary notices. Licenses are only transferrable between like smartphone devices (e.g. Blackberry to Blackberry, Android to Android, or iPhone to iPhone). In the event that you change smartphones, as long as you replace your smartphone with a like device, it will not be necessary for you to re-purchase in order to continue to use the service that the software provides; however, if you change smartphone devices (e.g. if you change from Blackberry to Android) it will be necessary for you to purchase a new license for your new smartphone device. The Software includes confidential information which you agree to keep strictly confidential and neither disclose nor use for any purpose other than the limited use of the Software in accordance with this License. You will not: (a) use, copy, reproduce or transfer the Software other than as set out above or, without limiting the generality of the foregoing, adapt, reverse engineer, decompile, disassemble, translate or modify the Software in any way whatsoever, nor will you create derivative works based on the Software; (b) remove or alter ownership and copyright notices embedded in or on the Software; (c) use, ship, transfer, export or re-export the Software except as authorized and permitted by the laws and regulations of the jurisdiction in which you are using the software, as well as the United States and Canada; or (d) permit any third party to violate the terms and conditions of this License.
- Term. Unless it is terminated prior to the end of that period, this License is effective for the period for which you own your Smartphone. This License may be terminated by 3235106: (a) if you destroy the Software together with all copies, modifications and merged portions in any form; (b) automatically, if you transfer or permit an unauthorized use of the Software or this License; (c) if you fail to comply with any material provision of this License and do not correct such failure within thirty (30) days after written notice of such failure to comply is forwarded to you by email or ordinary mail; (d) in the event of the liquidation or insolvency of, the appointment of a receiver or similar officer for, or the assignment for the benefit of creditors by either party, or the filing of a petition in bankruptcy by or against either party; or (e) in the event that 3235106’s ability to support or offer the software is impeded by the actions of one or more third parties. Upon termination you will have no further right to the Software and must return it to 3235106, or provide 3235106 with evidence that the Software, and each and every copy thereof, has been destroyed.
- Accuracy of information. The Software relies on certain information and services supplied by third party service providers. While 3235106 tries to ensure this information is current and accurate and that the services are compatible with the Software, IT OFFERS NO WARRANTY THAT THE INFORMATION IS ERROR FREE OR THAT THE SERVICES ARE COMPATIBLE. YOU AGREE THAT 3235106 WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM ANY ERRORS OR INACCURACIES IN THE SOFTWARE, INCOMPATIBILITY OF THE SERVICES, INFORMATION SUPPLIED BY THIRD PARTY SERVICE PROVIDERS, FROM TEMPORARY OUTAGE, OR TERMINATION OF THE SERVICE.
- High Risk Activities. The Software is not designed, manufactured or intended for use in hazardous environments which require fail-safe performance in which the failure of the Software could lead directly to death, personal injury or severe physical or environmental damage (“High Risk Activities”). Without limiting the generality of the foregoing, High Risk Activities include such activities as the operation of aircraft navigation or communications systems, air traffic control, weapon systems or nuclear facilities. ACCORDINGLY, WITHOUT LIMITING THE APPLICABILITY OF SECTIONS 4, 6, 7and 8, OF THIS LICENSE, 3235106 SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT 3235106 WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE SOFTWARE IN SUCH APPLICATIONS.
- Limited Warranty. 3235106 warrants to the person who downloads and installs the Software that, for a period of thirty (30) days from the date that the Software is downloaded if installed and used in accordance with 3235106's express instructions, the Software will substantially perform those functions described on the Tether.com website. 3235106 DOES NOT, HOWEVER, WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE ERROR FREE, VIRUS FREE OR SECURE. If you make any valid claim of encoding defect during this thirty (30) day period, 3235106 will refund the most recent license fee you paid. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO LIMITATIONS MAY NOT APPLY TO YOU. OTHER THAN THE SPECIFIC WARRANTIES PROVIDED ABOVE, THE SOFTWARE AND ACCOMPANYING MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. 3235106 DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE CONTINUOUS OR ERROR FREE, VIRUS FREE OR THAT ANY SOFTWARE DEFECTS ARE CORRECTABLE. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 3235106, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY THAT IN ANY WAY INCREASES THE SCOPE OF THIS LIMITED WARRANTY. THIS LIMITED WARRANTY GIVES YOU SPECIFIED LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
- Limited Liability. YOU ARE RESPONSIBLE FOR THE SELECTION, USE OF AND RESULTS OBTAINED FROM THE SOFTWARE AND FOR ENSURING THAT ITS USE DOES NOT VIOLATE ANY LEGAL OBLIGATIONS (WHETHER IMPOSED BY STATUTE, CONTRACT OR OTHERWISE). UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, 3235106 AND ITS RELATED COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES RESULTING FROM THE USE OF THE SOFTWARE HOWEVER CAUSED INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL LOSS OR DAMAGE, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, LOST DATA, LOSS OF COMPUTER TIME, FAILURE TO REALIZE EXPECTED SAVINGS, AND ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND AND ARISING IN CONSEQUENCE OF 3235106'S PERFORMANCE, FAILURE TO PERFORM, OR OTHER BREACH UNDER THIS LICENSE, IRRESPECTIVE OF WHETHER 3235106 HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. 3235106'S TOTAL LIABILITY INCLUDING, BUT NOT LIMITED TO, ANY POSSIBLE LIABILITY FOR INDEMNITY, DEFENCE AND HOLD HARMLESS OBLIGATIONS SHALL NOT EXCEED THE TOTAL AMOUNT WHICH YOU PAID TO 3235106 UNDER THIS LICENSE IN THE PAST TWELVE (12) MONTHS.
- Allocation of Risk. YOU ACKNOWLEDGE THAT YOU MAY INCUR ADDITIONAL CARRIER COSTS, AND THAT YOUR PLAN MAY BE TERMINATED BY YOUR CARRIER FOR VIOLATION OF YOUR CARRIER’S FAIR USE POLICY OR TERMS OF SERVICE. BY USING ANY MATERIALS OR PRODUCTS YOU ACKNOWLEDGE AND ACCEPT, THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THE DISCLAIMERS CONTAINED IN THIS LICENSE AGREEMENT.YOU AGREE THAT THE ABOVE WARRANTIES AND LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK AMONG THE PARTIES AND THE PRICE OF THE SOFTWARE.
- Indemnification. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS 3235106 FROM AND AGAINST ANY CLAIM IN EXCESS OF THE LIMITATION SET FORTH IN SECTION 7 AND FROM ANY CLAIMS INITIATED BY YOUR CARRIER FOR VIOLATION OF ITS POLICIES INCLUDING, WITHOUT LIMITATION, ITS FAIR USE POLICY. THIS INDEMNIFICATION SHALL APPLY EVEN IN THE EVENT OF BREACH OF CONTRACT, ACTIVE OR PASSIVE NEGLIGENCE, OR OTHERWISE OF 3235106, OR ANY CLAIM OF FAILURE OF ESSENTIAL PURPOSE.
- Assignment by 3235106. 3235106 may assign this to a third party. In the event of such an assignment, a notice will be posted on the Tether.com website.
- General. This License constitutes the entire agreement between you and 3235106 with respect to the Use of the Software. Any controversy in relation to this License or arising hereunder shall be governed by and interpreted in accordance with the laws of the province of Nova Scotia, Canada without regard to conflict of laws principles. The parties to this License agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this License and its application is expressly excluded. No waiver or modification of any of the terms of this License shall be valid unless made in writing and signed by 3235106. Should any provision of this License be found by a court of competent jurisdiction to be illegal, void or otherwise unenforceable such provision shall be severed from the rest of this License and the rest of this License shall remain in full force and effect, and be binding upon you and 3235106 as though the said provision or provisions had never been included. This Article and Articles 2 through 9 inclusive shall survive the termination of this License for any reason. Should you have any questions concerning this License you may contact 3235106 by writing to 3235106 Nova Scotia Limited, 60C Otter Lake Court, Halifax, Nova Scotia, Canada, B3S 1L9.