Last Updated: February 1st, 2016
Welcome to the Spygram Application (referred to herein as “Spygram”), a mobile application messenger service that connects users and allows for the secure transmission of photos, attachments, texts, recorded videos through a controlled list of recipient.
The Agreement is organized as follows:
- Individual Features and Services
- Modification of these Terms
- Spygram License Terms
- Advice and Content Disclaimer
- User Content and Prohibited Conduct
- Ownership; Proprietary Rights
- Third Party Sites, Products and Services; Links
- Disclaimers; No Warranties
- Limitation of Liability and Damages
2.1 To fully use Spygram, You must register for an account. You agree that the information You provide to Spygram upon registration, and at all other times, will be true, accurate, current and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times.
2.2 You are responsible for all activity that occurs under Your account, including any unauthorized activity. You must not allow others to use Your account. You must safeguard the confidentiality of Your password. When using your mobile device that others have access to, You must set up a password to protect against any unauthorized use. You agree to accept responsibility for all activities that occur under Your account or password. You may be liable for the losses incurred by Spygram or others due to any unauthorized use, so if You have reason to believe that Your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Your account ID, or passcode, if applicable), then You agree to change Your password and notify us immediately at email@example.com.
4 Individual Features and Services
When using Spygram, You may be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into these Terms.
5 Modification of these Terms
Spygram reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time, for any reason, without advanced notice or liability. Please check these Terms and any Guidelines periodically for changes. The currency of these Terms is indicated by the “Lasted Updated” date at the beginning of these Terms. Your continued use of Spygram after the posting of changes constitutes Your binding acceptance of such changes.
6 Spygram License Terms
6.1 License Grant.
Subject to Your compliance with these Terms, Spygram hereby grants to You a limited, non-exclusive, non-transferable, freely revocable license to view, download (including, without limitation download to a portable device), print, and have printed select content for personal use, except as Spygram may restrict or block at the request of its content providers or on its own initiative.
6.2 Reservation of Rights.
Spygram reserves all rights not expressly granted in these Terms.
6.3 Prevention of Unauthorized Use.
Spygram reserves the right, in its sole discretion, to exercise whatever lawful means it deems necessary to determine and ensure Your compliance with the Terms and to prevent any actual or suspected unauthorized use of Spygram, including, but not limited to, monitoring Your use of Spygram, technological barriers, IP mapping, and directly contacting Your service provider regarding such unauthorized use. Notwithstanding the foregoing, Spygram shall be under no obligation to monitor, review, screen, edit, or otherwise control Your use of Spygram.
7 Advice and Content Disclaimer.
You understand that when using Spygram You may receive information, opinions, recommendations, and advice and be exposed to content from a variety of sources, and that Spygram is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such information, opinions, recommendations, advice, and/or content. You further understand and acknowledge that You may be exposed to information, opinions, recommendations, advice and/or content that is inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against Spygram with respect thereto. Spygram does not endorse any content, opinion, recommendation, or advice expressed through Spygram, and Spygram expressly disclaims any and all liability in connection with any such content, information, opinion, recommendation, or advice. If Spygram is notified that any content, information, opinion, recommendation, or advice allegedly does not conform to these Terms, Spygram may investigate the allegation and determine, in its sole discretion, whether to take any action and may do so at any time and without notice.
8 User Content and Prohibited Conduct.
8.1 All information, software, data, text, messages, links, music or sound, photographs, graphics, video, messages or other material You provide in association with Your use of Spygram, or any portion thereof (“User Content”), are Your sole responsibility and You represent and warrant that You have the right to use such User Content in association with Spygram.
BY USING SPYGRAM YOU AGREE NOT TO:
8.2 use Spygram for any purposes other than to add User Content, and/or to access Spygram as such services are offered by Spygram;
8.3 rent, lease, loan, sell, resell, sublicense, distribute, display or otherwise transfer the licenses granted herein or any Materials (as defined in section 10, below);
8.4 post, upload, or distribute any defamatory, libelous, or inaccurate User Content;
8.5 post, upload, or distribute any User Content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, invasive of another’s privacy, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
8.6 use someone else’s name, an obscene name, a name that violates any third party right, or impersonate any person or entity, falsely claim an affiliation with any person or entity, or access Spygram accounts of others without permission, forge another persons digital signature, misrepresent the source, identity, or content of information transmitted via Spygram, or perform any other similar fraudulent activity;
8.7 delete the copyright or other proprietary rights notices on Spygram or associated with any content available via Spygram;
8.8 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of Spygram (this includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
8.9 use Spygram for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
8.10 defame, harass, abuse, threaten or defraud Users of Spygram, or collect, or attempt to collect, personal information about Users or third parties without their consent;
8.11 remove, circumvent, disable, damage or otherwise interfere with Technological Protection Measures (TPM) or Digital Rights Management (DRM) and/or other security-related features of Spygram features that prevent or restrict use or copying, printing, or sharing of any content accessible through Spygram, or features that enforce limitations on the use of Spygram or any content available via Spygram;
8.12 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of Spygram or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
8.13 modify, adapt, translate or create derivative works based upon Spygram or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
8.14 intentionally interfere with or damage operation of Spygram or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
8.15 relay email from a third party’s mail servers without the permission of that third party;
8.16 use any robot, spider, scraper, or other automated means to access Spygram for any purpose or bypass any measures Spygram may use to prevent or restrict access to Spygram;
8.17 forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through Spygram;
8.18 interfere with or disrupt Spygram or servers or networks connected to Spygram, or disobey any requirements, procedures, policies or regulations of networks connected to Spygram; or
8.19 post, upload or distribute marketing material, advertisements, spam, content designed to aid search engine optimization, content in HTML format with links or redirects, or other content that in Spygram’s sole opinion detracts from the Spygram experience.
9.1 Spygram Remedies.
You agree that Spygram, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with Spygram or Your use of Spygram and remove and discard all or any part of Your account, User profile, and any of Your content, at any time. Spygram may also in its sole discretion and at any time discontinue providing access to Spygram, or any part thereof, with or without notice. You agree that any termination of Your access to Spygram or any account You may have or portion thereof may be effected without prior notice, and You agree that Spygram will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Spygram may have at law or in equity.
9.2 Your Remedies.
Your only remedy with respect to any dissatisfaction with (i) Spygram, (ii) any term of these Terms, (iii) any policy or practice of Spygram in operating Spygram, or (iv) any information, opinions, recommendations, advice, and/or content transmitted throughSpygram , is to close Your account and stop using Spygram and/or the App Subject to payment of any applicable Fees, You may terminate these Terms at any time by discontinuing use of Spygram.
10 Ownership; Proprietary Rights.
Spygram is owned and operated by Voxsync Inc. The visual interfaces, graphics, design, compilation, information, computer code (including source code and object code), products, services, and all other elements of Spygram provided by Voxsync Inc. (the “Materials”) are protected by Canadian copyright, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Spygram acknowledges that You retain ownership of any User Content You may post via Spygram, subject however to Your grant to Spygram of a perpetual, irrevocable, royalty-free, worldwide, nonexclusive license to reproduce, store, distribute, publicly display, and adapt them for use in conjunction with the operation of Spygram. All Materials contained on Spygram are the property of Spygram or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Spygram or its affiliates and/or third-party licensors. Except as expressly authorized by Spygram, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials or Spygram. Spygram reserves all rights not expressly granted in these Terms.
11 Third-Party Sites, Products and Services; Links.
Spygram may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”). Unless otherwise expressly stated by Spygram, Spygram has no control over, does not endorse and disclaims any liability for any such Reference Sites, applicable terms and conditions therein or the information, advice, recommendations, opinions, materials, products, or services contained on or accessible through Reference Sites. In addition, Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through Spygram are solely between You and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at Your own risk and Spygram shall not be held responsible for any loss or damage that You may incur as a consequence thereto.
You agree to indemnify, defend, save, and hold Spygram, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of Spygram, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein. Spygram reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Spygram, and You agree to cooperate with Spygram’s defense of these claims. Spygram will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
13 Disclaimers; No Warranties.
SPYGRAM IS OFFERED ON AN AS IS, AS AVAILABLE BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SPYGRAM, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY. NO ADVICE, OPINION OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SPYGRAM OR THROUGH SPYGRAM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEGE THAT AS USED IN THIS SECTION 13, THE TERM “SPYGRAM” INCLUDES SPYGRAM’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS AND SUBCONTRACTORS.
14 Limitation of Liability and Damages.
14.1 Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL SPYGRAM OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS AND CONTENT ON SPYGRAM OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH SPYGRAM, EVEN IF SPYGRAM OR AN SPYGRAM AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 Limitation of Damages.
IN NO EVENT WILL THE TOTAL LIABILITY OF SPYGRAM OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, YOUR USE OF SPYGRAM OR YOUR INTERACTION WITH OTHER SPYGRAM USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING SPYGRAM.
14.3 Reference Sites.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN SPYGRAM AND RECEIVED THROUGH OR ADVERTISED ON SPYGRAM OR RECEIVED THROUGH ANY REFERENCE SITES.
14.4 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT SPYGRAM HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, IF ANY, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND SPYGRAM, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND SPYGRAM. SPYGRAM WOULD NOT BE ABLE TO PROVIDE SPYGRAM TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
14.5 Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH SPYGRAM AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You and Spygram agree to arbitrate any dispute arising from these Terms or Your use of the Services, except that You and Spygram are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Spygram agree (a) that any arbitration will occur in Toronto, Ontario, Canada; (b) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Ontario Arbitration Act; and (c) that the Ontario or federal courts of Toronto, Ontario, Canada have exclusive jurisdiction over any appeals of an arbitration award and over any suit, if any, between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND SPYGRAM WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR REPRESENTATIVE ACTION OR PROCEEDING.
15.1 Notice. Spygram may provide You with notices, including those regarding changes to Spygram’s terms and conditions, by email, regular mail, or postings on Spygram.
15.2 Waiver. The failure of Spygram to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Spygram.
15.3 Governing Law. These Terms will be governed by and construed in accordance with the laws of the province of Ontario, and the federal laws of Canada applicable therein, without giving effect to any principles of conflicts of law.
15.4 Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or Spygram will be filed only in the province of Ontario or the federal courts of Canada, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
15.5 Severability. If any provision of these Terms including any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
15.6 Assignment. These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Spygram without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
15.7 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections 5-15.
15.8 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
15.9 Entire Agreement. These Terms (including all Guidelines and terms incorporated herein) are the entire agreement between You and Spygram relating to the subject matter herein.
15.10 Language. You and Spygram confirm that it is their wish that these Terms, as well as all other documents relating hereto, including all notices, have been and shall be drawn up in the English language only. Toi et Spygram aux prėsentes confirment leurvolontė que cette convention, de même que tous les documents, y compris tout avis, qui ‘sy rattachent, soient rėdigės en langue anglaise.