ATERLO NETWORKS INC.
NIGHTSHIFT TERMS OF SERVICE
Last Updated: This Agreement was last revised on March 5th, 2015.
NightShift is a subscription service offered by Aterlo Networks Inc. (“Aterlo”, “Our”, “Us” or “We”) that not only allows you to schedule caching digital content from select digital content service so that you can access it later, but also predicts, based on your viewing history, digital content you might want to access and automatically pre-loads content such that it can be viewed or downloaded at a future time (the “NightShift Service”).
The following are terms of a legal agreement (“Agreement”) between Aterlo and you (“You” or “Your”), which applies to (i) Your paid, trial or other subscription (“Subscription”) to the NightShift Service; (ii) Our online portal that allows You to access certain features and information regarding Your use of the NightShift Service (“Online Services”); (iii) all Aterlo or NightShift branded software applications provided to You by or on behalf of Aterlo in connection with Your use of the NightShift Service (the “NightShift Software”); and (iv) any other features, content, or applications offered or operated from time to time by Aterlo in connection with any of the foregoing (collectively, the “Services”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. DO NOT USE ANY OF THE SERVICES IF YOU DO NOT AGREE WITH THIS AGREEMENT. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT, AND YOU MUST NOT, ACCESS OR USE ANY OF THE SERVICES.
This Agreement will remain in effect until modified or terminated. This is Your copy of the Aterlo Customer Agreement. Please keep it for Your records.
- SUBSCRIPTION, FEES, BILLING, FREE TRIALS AND CANCELLATION.
- Subscriptions. You may elect one of the following subscription plans and billing options: (a) a monthly subscription plan (“Monthly Subscription Plan”); or (b) an annual subscription plan (“Annual Subscription Plan”).
- The subscription period for the Monthly Subscription Plan will be one month and will automatically renew unless You cancel Your Monthly Subscription Plan in accordance with this Agreement (see Section 3.6 for how to cancel). You will be billed monthly for the Monthly Subscription Plan on or about the same day each month until such time that You cancel Your Monthly Subscription Plan.
- The subscription period for the Annual Subscription Plan will be one year and will automatically renew each year for an additional year on the anniversary of Your Annual Subscription Plan unless You cancel Your Annual Subscription Plan (see Section 3.6 for how to cancel). You will be billed annually for the Annual Subscription Plan on or about the same day each year until such time that You cancel Your Annual Subscription Plan.
If You select the Monthly Subscription Plan, You can switch to the Annual Subscription Plan at any time. Any incremental cost to upgrade to an Annual Subscription Plan will be prorated over the remaining term of the subscription period and charged to Your Account on Your next billing cycle subsequent to the pro-rating billing.
- Fees. Fees for the Services (“Fees”) are available on the Website and/or in Our then-current published price list. The prices stated for the Services exclude all taxes and charges, unless stated otherwise. You are responsible for any taxes and for all other charges (for example, data charges and currency exchange settlements). You will be charged the Fees in the currency of the jurisdiction in which You reside (for example, if You reside in Canada, You will be charged Fees in Canadian Dollars, or, if You reside in the United States, You will be charged Fees in U.S. Dollars). Aterlo reserves the right to change the quoted currency at any time. We will charge tax when required to do so. If You are required by law to withhold any taxes, You must provide Us with an official tax receipt or other appropriate documentation.
- Billing. You must provide Us with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) in order to use Services. We will bill all Fees to Your Payment Method. By designating a Payment Method, You authorize Us to charge Your Payment Method a recurring subscription fee (“Subscription Fee”) for the Services based on the subscription plan (“Subscription”) that You select when You sign up for the applicable Services and any other usage based or other charges You may incur in connection with Your use of the Services. All Subscription Fees are payable in advance on the first day of each billing period at the rates in effect at the time of payment through all periods until Your Subscription is cancelled. Account statements will be made available to You through Your Account. We will not send statements directly to You.
- Payments. You must be authorized to use the Payment Method that You enter when You create a billing account, which is required for when You register for the Services. Payments may be processed by Our third party billing and payment processing provider (the “Billing Provider”). By subscribing for the Services, You authorize Aterlo and/or the Billing Provider (as the case may be) to charge the designated Payment Method for all Fees. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and You do not edit and update Your Payment Method information, You remain responsible for any uncollected amounts and authorize Us to continue billing the Payment Method, as it may be updated. When You provide Us with Your information about Your Payment Method, that information, potentially along with other personal information about You, will be shared with the Billing Provider for the purposes of processing Your payments. You hereby consent to Our disclosure of Your information (including, but not limited to, personal information) to the Billing Provider for the foregoing purposes. You further acknowledge and agree that the Billing Provider may also collect from You information about You and the collection and use of such information will be subject to the terms of any agreements or policies put in place by such Billing Provider, which may be made available to You during the payment information registration process. You acknowledge and agree that Aterlo shall have no liability to You in connection with the use and disclosure of Your personal information when collected by the Billing Provider. Your Payment Method on file must be kept current and valid. You must keep all information in Your billing account current. You can access and modify Your billing account information when using the Services.
- Free Trials. Your Subscription for the NightShift Service may start with a free trial. The free trial period of Your Subscription lasts for one month, or as otherwise specified during registration. For combinations with other offers, restrictions may apply. Free trials are for new and certain former members only. Aterlo reserves the right, in its absolute discretion, to determine Your free trial eligibility. We will begin billing Your Payment Method for Subscription fees at the end of the free trial period of Your Subscription unless You cancel prior to the end of the free trial period. We may authorize Your Payment Method through various methods, including authorizing it up to approximately one month of service as soon as You register. In some instances, Your available balance or credit limit may be reduced to reflect the authorization during Your free trial period. You will not receive a notice from Us that Your free trial period has ended or that the paying portion of Your Subscription has begun. We will continue to bill Your Payment Method on a monthly basis for Your Subscription fee until You cancel.
- Cancellation and Refunds.
- You may cancel Your Subscription at any time by using the account management features of the Services. Cancelation of a Monthly Subscription Plan will be effective at the end of the month in which You cancel, based on Your billing cycle, and without any refunds. If You cancel an Annual Subscription Plan, such cancelation will be effective at the end of the month in which You cancel, based on Your billing cycle. We will refund prepaid the remainder of the Subscription Fees for You Annual Subscription Plan. For greater certainty, there are no refunds or credits for partially used periods.
- We may cancel Your Services at any time if You fail to pay amounts owing to Us when due, subject to any applicable grace periods, for breach of any other material provision of this Agreement or for any other reason. In such case, You will still be responsible for payment of all outstanding balances accrued through that effective date. You must comply with all of the terms and conditions of this Agreement or We may cancel Your Subscription.
- Price Changes. We will notify You in advance, either through the Services or to the email address You have most recently provided to Us, if We change the price of the Services. If there is a specific length and price for Subscription or for a promotional offer for the Services, that price will remain in force for that time. After the Subscription or offer period ends, Your use of the Services will be charged at the new price.
- THE SERVICES.
- The NightShift Service.
- Use of the Services is void where prohibited. By using the Services, You represent and warrant that: (i) all registration information and Payment Information You submit to Aterlo is truthful and accurate; (ii) You will maintain the accuracy of such information; and (ii) Your use of the Services does not violate any Applicable Law. To subscribe to the Services, You must have reached the age of majority in Your jurisdiction of residence.
- You will no longer be able to access Content from a Content Service if the provider of that Content Service removes or otherwise restricts access to such Content (including, but not limited to, where Your account with the provider of the Content Service is no longer entitled to access such Content).
- Aterlo may add or remove Content Services and/or Content from time to time, in its sole discretion. Aterlo reserves the right to remove, from Your Equipment (as defined below), Your access to any Content if Aterlo has reason to believe that Your Equipment is stolen, hacked or compromised, or that the Content or Your access or account for a Content Service is not properly authorized or licensed, violates any law or third party rights. You are responsible for ensuring that any age-restricted Content is not viewed by any individual not meeting the applicable age limits specified by law, regulation or the Content Service provider.
- Each Subscription may only be used with a single designated network router. You must purchase a separate subscription for each additional network router that You wish to use.
- The Services are compatible, and will only work with, specific hardware and network equipment. You must use a network router that is compatible for use with the Services and otherwise meets Our hardware requirements in order to use the Services. Please see Our list of hardware requirements here https://www.aterlo.com/nightshift/supported-hardware/. We reserve the right to add to, delete from or supplement this list of hardware requirements at any time and from time to time without notice or liability to You.
- You are responsible for obtaining and maintaining all hardware and software necessary to access and use the Services, including, but not limited to internet connectivity. We do not provide any support for Your Equipment.
- The Services works best over a broadband internet connection. We do not guarantee continuous, uninterrupted or secure access to the Services and are not responsible for any service degradation and/or interruptions that occur.
- You are responsible for establishing all download time periods. The NightShift Service pre-loads Content during a time period of Your choosing. It is Your responsibility to configure the pre-load time period to a period appropriate for Your internet service.
- 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 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 1.3 above.
- NightShift Software.
- Provided You comply at all times with this Agreement and any applicable Other Terms and Additional Terms, and otherwise subject to the terms and conditions of this Agreement, Aterlo hereby grants You (which, for purposes of this Agreement, shall include members of Your immediate household for whom You will be responsible hereunder and users of the Your Equipment with which You are accessing the NightShift Service and Content and for whom You will be responsible hereunder) a non-exclusive, limited, personal and non-transferable license, to (ii) install and use the NightShift Software, in object code form only, on equipment and other hardware owned by You that is required in order to access and use the Services and Content (“Your Equipment”) in the manner permitted by this Agreement.
- Copying or redistribution of the NightShift Software is strictly prohibited. Except as expressly provided under this Agreement, You do not acquire any intellectual property or other proprietary rights in or to the NightShift Software, including without limitation, any rights in patents, inventions, improvements, designs, trademarks, or copyrights, nor do You acquire any rights in any confidential information or trade-secrets. All rights not expressly granted to You in this Agreement are reserved by Aterlo or its third party licensors. You may not remove or alter any trademark, logo, copyright or other proprietary notice in or on the NightShift Software.
- The NightShift Software is proprietary to Aterlo or its third party licensors and may be used only with the Services. Subject to the terms of this Agreement, Aterlo grants You a non-exclusive, non-transferable license to run the NightShift Software and any updated versions provided to You by Aterlo, only in and as incorporated in the Player. This is a license and not a sale.
- Aterlo may issue You an upgraded version of the NightShift Software automatically upon an instance of Your use of the NightShift Software or the NightShift Service. Alternatively, Aterlo may require You to consent to an upgrade to the NightShift Software ("Software Upgrades") before using, installing or accessing the NightShift Software. If You decline the Software Upgrades, You may not be able to use or access the NightShift Software or Content.
- Aterlo reserves the right to update the NightShift Software from time to time in its sole discretion, including adding, changing or removing functionalities and features, including, but not limited to, changing the user interface or the manner in which You are able to access content.
- YOUR ACCOUNT, PASSWORD, AND SECURITY.
- In order to access and use the Online 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 that any person using Your Account will be treated and deemed by Us as having been authorized by You to access Your Account, and to have been authorized by You to take any other actions on Your behalf. 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 sentence 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.
- ONLINE SERVICES.
- You understand that all information, data, or other materials that You or another user provide in connection with the Online Services or otherwise communicate to Us ("User-Provided Content"), including, but not limited to, product reviews and content posted to any user forums We make available, are the sole responsibility of You or the person from whom such User-Provided Content originated. This means that You, and not Us, are responsible for all User-Provided Content that You upload, post, email, transmit, or otherwise make available in connection with the Online Services. You agree not to upload, post, email or otherwise send or transmit any User-Provided Content that is (i) designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Services, including any software viruses or any other computer code, files or programs; or (ii) unlawful or inappropriate, such as User-Provided 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.
- We do not control the User-Provided Content posted and, as such, do not guarantee the accuracy, integrity, or quality of any User-Provided Content. You understand that by using the Online Services, You may be exposed to User-Provided Content that is misleading, offensive, indecent, or objectionable. Under no circumstances will We be liable in any way for any User-Provided Content, including, but not limited to, for any errors or omissions in any User-Provided Content, or for any loss or damage of any kind incurred as a result of the publication or use of any User-Provided Content posted, emailed, transmitted, or otherwise made available in connection with the Online Services. By submitting any User-Provided Content to Aterlo, You represent and warrant that: (i) You own or control all rights to User Provide Content You post on the Online Services; (ii) all "moral rights" that You or any other person may have in such content have been voluntarily waived; and (iii) all content that You post is accurate, does not violate This Agreement, and will not cause injury to any person or entity
- By uploading, posting, emailing, transmitting, or otherwise making available any User-Provided Content, You grant Us a perpetual, irrevocable, royalty-free, fully paid-up, transferable right and license to use, reproduce, display, perform, adapt, modify, delete in its entirety, publish, translate, create derivative works from, or distribute (or have distributed) such User-Provided Content and/or incorporate such User-Provided Content into any form, medium, or technology throughout the world without compensation to You, including but not limited to, in Our publications, marketing material and advertisements.
- All User-Provided Content that You submit may be used at Aterlo's sole discretion. Aterlo reserves the right to change, condense, delete, or refuse to post any User-Provided Content on the Online Services in its sole discretion. Aterlo does not guarantee that You will have any recourse through Aterlo to edit or delete any User-Provided Content You have submitted. None of the User-Provided Content that You submit shall be subject to any obligation of confidence on the part of Aterlo, its agents, subsidiaries, affiliates, partners, or third-party service providers and their respective directors, officers, and employees. WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR THE USE, MISUSE OR RELIANCE ON ANY USER-PROVIDED CONTENT.
- The Online Services may contain information about Our company, such as news and press releases. You acknowledge that We have no duty or obligation to maintain the accuracy of, or update any such information, and agree that Your reliance on any such information is at Your own risk.
- We reserve the right to do any of the following, at any time, at Our sole discretion, with or without notice: (1) modify, suspend, or terminate operation of or Your access to the Online Services, or any portion of the Online Services, including but not limited to for Your violation of this Agreement; (2) modify or change the Online Services, or any portion of the Online Services; and (3) interrupt the regular operation of the Online Services, or any portion of the Online Services, as necessary to perform routine or non-routine maintenance, to correct errors, or to make other changes to the Online Services.
- For Your convenience, the Online Services may contain links to or at times redirect You to other websites and online services owned or controlled by third parties. Also, at Your request, the Online Services may connect to social networking websites that are not owned or controlled by Us. These other websites and online services are not under Our control, and You acknowledge and agree that We and Our affiliated companies are not responsible or liable for the accuracy, collection or use or disclosure of information, copyright compliance, legality, decency, or any other aspect of such websites or online services or the content displayed on or through them. The inclusion of such a link does not imply Our endorsement of any such website or online service, the content displayed on or through it, or any association with its operators, and You agree not to hold Us responsible for any harm that may arise based on Your access to or use of any linked website or online service.
- RESTRICTIONS ON USE.
- You agree to use the Services, including all features and functionalities associated therewith, in accordance with all Applicable Laws or other restrictions on use of the Services or Content therein. You shall not use the Services (whether in whole or in part) 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 Content from a Content Service in any way; (ii) reverse engineer, disassemble or decompile reverse engineer or disassemble any software or other products or processes accessible through the Services (including, without limitation, the NightShift Software), 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 any of the Services; (vi) access or use the Services in a way intended to improperly avoid incurring fees; (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 any robot, spider, scraper or other automated means to access the Services; (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 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; (xii) access or use the Services in order to build a competitive product or Services or copy any features or functions of any of the Services; (xiii) circumvent, remove, alter, deactivate, degrade or thwart any of any security technology or software that is part of the Services (or otherwise attempt to do so or encourage or assist any other party to do so); (xiv) impersonate or attempt to impersonate Aterlo or Our employees (including, without limitation, the use of email 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.
- The Services are for Your personal and non-commercial use only. You may not use them for any commercial or illegal purpose. You agree not to use the Services for public performances.
- TEST OR “BETA” FEATURES. We continually update and test various aspects of the Services, including features, functions and user interfaces and, 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. The provisions of this Section apply with full force to such features and tools. 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.
- THIRD PARTY TECHNOLOGY. In addition to interoperation with Content Services, the Services may contain features or functionality designed to interoperate and/or integrate with technology, software, applications or services that are provided by parties other than Aterlo or You (“Third Party Services”). To use such features of the Services, You may be required to obtain access to such Third Party Services from their respective 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. 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 DEVICE, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, 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.
- SUPPORT. If You need assistance with Your Account or the Services, please visit the support portions of the Website and/or the Services. There You will find the answers to many frequently asked questions and information on reaching a live customer service representative. We may best be able to assist You by using a remote access support tool through which We have full access to Your Equipment. If You do not want Us to have this access, You should not consent to support through the remote access tool, and We will assist You through other means. 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.
- DATA AND INFORMATION COLLECTION.
- 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).
- OWNERSHIP AND RESERVATION OF RIGHTS. All trademarks, service marks, patents, copyrights, trade secrets and other 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 proprietary to Aterlo and/or its licensors. You agree to take adequate steps to protect the Services from unauthorized disclosure or use.
- FEEDBACK. 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 the right 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.
- WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, 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) NIGHTSHIFT SOFTWARE); AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR DATA TRANSMITTED TO OR FROM ATERLO, YOU OR OTHERS VIA THE SERVICES.
- INDEMNITY. 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, User-Provided Content or Your breach of Your warranties or obligations under this Agreement.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL ATERLO AND/OR ITS LICENSORS OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE IN ADDITION, IN NO EVENT WILL ATERLO’S CUMULATIVE OR AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS (USD $100.00). NOTWITHSTANDING THE GENERALITY OF THE ABOVE, WE ARE NOT LIABLE FOR ANY DAMAGE TO YOUR EQUIPMENT RESULTING FROM USE OF THE SERVICES (INCLUDING, BUT NOT LIMITED TO THE NIGHTSHIFT SERVICE, THE NIGHTSHIFT SOFTWARE OR THE ONLINE SERVICES). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
- TERMINATION. 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. Upon the termination of this Agreement for any reason, all rights granted to You hereunder will cease use of the Services and destroy all copies, full or partial, of the NightShift Software that You may have downloaded hereunder. Termination of any Services includes removal of access to the Services and Content 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. Except as otherwise set forth in this Agreement, upon termination of any Service, Your right to use such Service will automatically terminate immediately. 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 disclaimers, limitations of liability, indemnities and Sections 4.1(c), 5(b), 5(c), 6(b), 6(c), 6(d), 6(g), 9, 11.2, 12 to 23.
- NOTICE. By using the Services, You consent to receiving electronic communications from Aterlo relating to Your Account and Subscription. These communications may involve sending emails to Your email address provided during registration, or posting communications on the Services, or in Online Services and will include notices about Your Account and Subscription (e.g., payment authorizations, change in password or Payment Method, confirmation emails and other transactional information) and are part of Your relationship with Aterlo. You agree that any notices, agreements, disclosures or other communications that We send to You electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. Notices to You will be deemed given when deposited in the mail or on the date that an e-mail is sent. Notices may be included in our statements or other communications to you.
- EXPORT CONTROLS. NightShift Software and other software available in connection with the Services are further subject to Canadian and United States export controls. No NightShift 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.
- 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.
- 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 of anyone posting any email 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.
- 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.
- MISCELLANEOUS. This Agreement (and the documents referred to herein, including, without limitation, Other Terms and Additional Terms) constitutes 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. We may assign Your Account or this Agreement and all rights and/or obligations hereunder to any third party without notice for any purpose, including without limitation, collection of unpaid amounts, or in the event of an acquisition, corporate reorganization, merger or sale of substantially all of the party’s assets to another entity. You hereby consent to such assignment. You must continue making all required payments to us in accordance with Your billing statement, unless notified otherwise. This Agreement shall enure to the benefit of and be binding upon Aterlo's or Your respective heirs, executors, administrators, successors and permitted assigns.
If You have questions about this Agreement, feel free to contact Us.
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