END USER LICENCE AGREEMENT
YOUR ACCESS TO AND USE OF “CLARITY GO” IS SUBJECT TO LEGALLY BINDING TERMS AND CONDITIONS. CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS BEFORE PROCEEDING. CLICKING THE “I ACCEPT” BUTTON BELOW IS THE EQUIVALENT OF YOUR SIGNATURE AND INDICATES ACCEPTANCE OF THESE TERMS AND CONDITIONS AND YOUR INTENTION TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE CLICK THE “CANCEL” BUTTON BELOW.
This End User Licence Agreement (“EULA”) is an agreement between you, whether you are a corporation, partnership, or individual/sole proprietor, and 2529513 Ontario Inc. o/a Optovia (“Optovia”), the developer and provider of “Clarity Go”. The Effective Date of this EULA is the date you accept or are deemed to accept this EULA in accordance with the terms below.
1. Ownership and Copyright: You acknowledge that any and all information, content, data, databases, graphics, interfaces, text, files, source code, software, trade-marks, logos and trade names forming part of “Clarity Go” (together, the “Application”) are the property of Optovia or its licensors, as the case may be, and except for the limited license granted herein, all rights are reserved.
2. Permitted Use: You will use the Application only in accordance with the EULA. Optovia hereby grants to you a non-exclusive, as-is, non-transferrable license, without rights to sublicense, to: (a) perform, download, install, display and use the Application on an Apple iOS-based or Google Android-based device that you own or control and as permitted by the terms and conditions and usage rules of either Apple’s App Store or the Google Play store; and (b) access, stream, download, and use on such device the content and services made available or otherwise accessible through the Application and as permitted by the terms and conditions and usage rules of either Apple’s App Store or the Google Play Store. The Application and the content and services made available on or through the Application is licensed, not sold.
3. Restrictions on Use: You agree that you will not create derivative works of, reverse engineer, decompile, disassemble, adapt, translate, transmit, arrange, modify, copy, bundle, sell, sub-license, export, merge, transfer, adapt, loan, rent, lease, assign, share, outsource, host, publish, distribute, make available to any person or otherwise use, either directly or indirectly, the Application in whole or in part, in any form or by any means whatsoever, use the Application to access any content or services in a manner not authorized by the EULA, use the Application in any manner which violates any applicable law or regulation, remove any proprietary notices from the Application or its documentation, or permit, allow or do anything that would disrupt, infringe, impair or otherwise prejudice the proprietary rights of Optovia or its licensors, or the operation of the Application.
4. Data Collection and Privacy: The Application may collect information about your use of the Application, including the services you utilize from within the Application. In addition, the Application collects information you provide directly or through automated means, including geolocation data (if you choose to share it), device and OS identification, login credentials, language and time zone. By using this Application, you consent to Optovia’s collection and use for Optovia’s legitimate business purposes of any and all personal information that you provide to Optovia. Further, you hereby consent to Optovia’s disclosure of your personal information to Optovia’s affiliates, successors and assigns.
5. Representations and Disclaimer of Warranty:
(a) Optovia represents that it is the owner or licensee of the Application and has the right to grant this license to you.
(b) The Application is provided on an “as is” basis. Optovia makes no representations (except as set forth in section 4(a), above) or warranties, express or implied, including but not limited to any warranty of accuracy, completeness, performance, merchantability, fitness for a particular purpose, or commercial utility.
(c) Optovia specifically does not warrant that the Application will meet all your requirements, operate in all the combinations which may be selected for use by you, that the operation of the Application will be error free or uninterrupted, that the Application is free from viruses, Trojans, adware or spyware, or that all program defects have been or will be corrected.
6. Limitation of Liability and Indemnification:
(a) Optovia will not be liable to you, your affiliates, successors and assigns, or any third party with respect to any claim in any way arising from or related to your access to or use of the Application.
(b) Optovia will not be liable to you, your affiliates, successors and assigns, or any third party for lost profits, business interruption, or indirect, special or consequential damages of any kind, including without limitation damages arising from interrupted operation, loss of profits, loss of revenue, loss of goodwill, loss of capital and/or loss of information and data.
(c) Optovia’s liability for damages to you in the aggregate, regardless of the form of action and whether in contract or tort including negligence, shall be limited to the amount of the license fee, if any, paid by you pursuant to this EULA, or CAD$10.00, whichever is greater.
(d) To the maximum extent permitted by law, you shall defend, indemnify and hold harmless Optovia, its affiliates, successors and assigns, and their respective directors, officers, employees, consultants and agents from and against any claim arising out of or related to your use of the Application, including legal fees and costs. Optovia reserves the right, at its own expense, to assume the exclusive defence and control of any matter subject to indemnification by you, but doing so will not excuse your indemnity obligations.
7. Termination: This EULA may be terminated at any time by Optovia, with or without cause, in Optovia’s sole and unfettered discretion. Without prejudice to any other rights, Optovia may terminate this EULA without notice if you are in breach of it as determined by Optovia. Upon termination, you shall refrain from further use of the Application, shall destroy or return to Optovia, as directed by Optovia, any part of the Application in your position and shall ensure that no copies of any part of the Application, in any form, remain in the possession or control of you or your affiliates, successors and assigns. Sections 4, 5, 6 and 7 shall survive the expiry or termination of this EULA.
8. Successors: This EULA shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, personal legal representatives, and successors.
9. Assignment: You shall have no right to assign the benefit of this EULA without express written permission from Optovia, which permission may be arbitrarily withheld. Optovia shall have the right to assign the benefit of this EULA unilaterally.
10. Entire Agreement: This EULA contains the complete and exclusive statement of the agreement between you and Optovia and supersedes all prior and contemporaneous agreements, understandings, proposals, negotiations, representations or warranties of any kind, whether oral or written. If any provision of this EULA is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in whole or in part, that provision shall be severed from the EULA to the extent of its invalidity and remainder of the EULA shall remain in full force.
11. Amendment: Optovia reserves the right to change this EULA at any time, and your use of the Application shall be governed by the EULA in effect at the time of such use. You should therefore check this EULA periodically. If you do not agree to the amended EULA you shall immediately stop using the Application. Use of the Application after any amendments have been posted shall constitute your acknowledgment and acceptance of the amended EULA. No supplement, modification or amendment to this EULA and no waiver of any provision of this EULA shall be binding upon Optovia unless executed by Optovia in writing. No waiver of any of the provisions of this EULA shall be deemed or shall constitute a waiver of any other provision nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
12. Governing Law: This EULA and the rights, obligations and relations of the parties shall be governed by and construed in accordance with the laws of the Province of Ontario but without giving effect to the conflict of laws rules thereof and the laws of Canada applicable therein. The United Nations Convention for the International Sale of Goods shall not apply. The parties agree that the courts of the Province of Ontario shall have exclusive jurisdiction to entertain any action or other legal proceedings based on any provision of this EULA. Each party does hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario. The parties hereby confirm that you have requested this EULA and all related documents be drafted in English. Les parties ont exige que le present contrat et tous les documents connexes soient rediges en anglais.
BY CLICKING “I AGREE” BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE EULA AND CONFIRM YOUR INTENTION TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET OUT HEREIN.