TERMS OF USE AGREEMENT
To open an HourGlass account with High-Touch Communications Inc., you must agree to the terms of this agreement.
THIS IS AN AGREEMENT BETWEEN YOU AND HIGH-TOUCH COMMUNICATIONS INC. ("HTC") GOVERNING THE ACCESS AND USE OF HOURGLASS TIME TRACKING, EXPENSE RECORDING AND TASK MANAGEMENT SERVICE (THE "SERVICE"). BY ACCEPTING THIS TERMS OF USE AGREEMENT (THE "AGREEMENT"), YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF A BUSINESS ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. THE TERM "YOU" REFERS TO THE INDIVIDUAL OR ENTITY, AS APPLICABLE, THAT REGISTERS FOR OR USES THE SERVICE.
HTC will provide you with access to and use of the Service, including a browser interface and data encryption, transmission, access and storage in accordance with the terms and conditions of this Agreement. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by all of the terms and conditions of this Agreement.
You will pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide HTC with valid credit card information as a condition to registering for the Service. You must also report and pay any applicable taxes to the appropriate governmental agencies.
HTC will automatically bill your credit card as follows: (a) every month for monthly subscriptions, (b) upon the commencement of the annual term and then at each subsequent anniversary of that initial term for continuous annual subscriptions. The renewal charge shall be equal to the current number of licenses times the user fee, unless HTC otherwise notifies you in advance.
If timely payment is not received or cannot be charged to your credit card for any reason, HTC reserves the right to either suspend or terminate your access to the Service and account and terminate this Agreement without any liability or any further obligation to you. If you cancel the Service, you will be obligated to pay balance due on your account at the time of your cancellation, or if later, the effective date of termination. You agree that HTC may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
HTC grants to you a personal, non-exclusive, non-transferable, non-sublicensable license to access the Service and to use and display the audio and visual information, documents, products and software contained in or made available through the Service (the "Content") solely for your own internal business purposes and subject to your compliance with all of the terms and conditions of this Agreement. All rights not expressly granted to you are expressly reserved by HTC.
You are permitted to store, manipulate, analyze, reformat, print, and display the Content only for your personal use. Unauthorized use of the Service, or the resale of the Service, is expressly prohibited. You shall not copy, modify, publish, broadcast, transmit, rent, license, sell, transfer, make available or distribute the Content to, or for the benefit of, any third party. You also shall not create an Internet "link" to the Service or "frame" or "mirror" any of the Content. You shall not use any Content provided by HTC or its affiliates in or in conjunction with any business or commercial enterprise, except as expressly permitted by this Agreement.
In your use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-party advertisers or sponsors of goods and/or services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and such third-parties. You agree that HTC shall have no liability, obligation or responsibility for any loss or damage of any sort incurred as a result of any such dealings or as a result of your interaction with such advertisers or sponsors through the Service.
Links to Third Party Internet Web Sites
Links to other Internet Web sites may be accessible through the use of the Service. HTC does not endorse any sites on the Internet that are linked through the Service. HTC is providing these links to you only as a matter of convenience, and in no event shall HTC be responsible for any content, advertising, products, services or other materials on or available from such sites.
A user account is required to access the Service and may be accessed and used only by those authorized individuals who are registered with HTC. To obtain a user account, you must complete the registration process by providing HTC with current, complete and accurate information as prompted by the registration form. In registering for the Service, you agree to submit accurate, current and complete information and to promptly update such information. Should HTC suspect that such information is untrue, inaccurate, not current or incomplete, HTC has the right to suspend or terminate your account and access to the Service. You will choose a personal, non-transferable password. User accounts cannot be "shared" or used by more than one individual. User licenses can be transferred to a new user only if a previous user becomes inactive and is unable to access the Service.
You are also solely responsible for any and all activities that occur under your account and for ensuring that you exit or log-off from your account at the end of each session of use. You shall notify HTC immediately of any unauthorized use of your password or account or any other breach of security that you suspect or become aware of. You shall also use your best efforts to immediately stop any copying or distribution of Content that you suspect or become aware of. HTC shall not be responsible for any unauthorized access to, or alteration of, your transmissions or data, any material, information or data sent or received by you, regardless of whether the data is actually received by HTC, or any transactions entered into by you through the Service or your failure to abide by this Agreement.
HTC does not own any data, information or material that you submit to the Service ("Data"), unless we specifically tell you otherwise before you submit it. HTC will not monitor, edit, or disclose any information regarding you or your account, including any Data, without your prior permission except in accordance with this Agreement. HTC may provide certain statistical information, such as usage or user traffic patterns in aggregate form, to third parties, but such information will not include information that could be used to identify specific persons or entities. Your Internet protocol address is not transmitted with messages sent from your HTC account. HTC may access your account, including your Data, to respond to service or technical problems or as stated in this Agreement. You, not HTC, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and right to the use of all Data and HTC shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to transmit or store any Data.
Use, Storage and Other Limitations
HTC reserves the right to establish or modify general practices and limits concerning use of the Service, including without limitation the maximum number of days that Content will be retained by the Service and the maximum storage space that will be allotted on HTC's servers on your behalf. If there are any changes in any such limitations, you will be notified by email at least 30 days in advance.
You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Service. In addition, without limitation, you agree not to use the Service to: (a) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (c) transmit through or post on the Service unlawful, harassing, libelous, abusive, tortuous, defamatory, threatening, harmful, invasive of another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) transmit any material that may infringe any intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity; (e) transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancel bots; (f) interfere with or disrupt servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (g) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; (h) harass or interfere with another user's use and enjoyment of the Service or (i) engage in any high risk activities, including without limitation, use of the Service in conjunction with the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, life support machines, weapons systems, or any other environment requiring fail-safe performance in which the failure of such product could lead to death, personal injury, or severe physical or environmental damage.
HTC, in its sole discretion and without notice of liability to you, may terminate your password, account and use of the Service and remove and discard any of your Data within the Service if you fail to comply with any provision of this Agreement. HTC may terminate a free account if you do not first log-on within 3 months after registration or 90 days since your last log-on. Upon termination of an account, your right to use such account and the Service immediately ceases and you agree to stop all use of the Service and either return to HTC or destroy all copies or portions (in any form) of all Content provided on or through use of the Service. HTC shall have no obligation to maintain any Data stored in your account or to forward any Data to you or any third party. Termination of this Agreement will not relieve you of any liabilities or obligations accrued on or before the date of such termination, or limit any other remedies available to HTC arising out of any breach of this Agreement.
Security of Data Transmission
You agree to use third party software including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by HTC and to follow HTC's log-on procedures for the Service that support such protocols. You acknowledge that HTC is not responsible for notifying you of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. You acknowledge that it is possible that electronic communications transmitted through the Service may be accessed by unauthorized third parties when communicated between you and HTC using the Internet, other network communications facilities, telephone or any other electronic means.
Cookies are files that your web browser places on your computer's hard drive and are used to tell HTC whether you have visited the Service previously. HTC uses a persistent cookie to help save and retrieve usernames used on the Service. HTC issues a session cookie only to record encrypted authentication information for the duration of a specific session. The session cookie does not include username or password information.
Except for the licenses granted herein, you have no right, title or interest in or to the Service or any Content and HTC retains all proprietary right, title and interest, including copyright and all other intellectual property rights, in and to the Service and Content, including, without limitation, stories, articles, text, images, and other multimedia data, and the business process, procedures, methods and techniques embodied in the Service. The names of other companies and products mentioned herein may be the trademarks of their respective owners. "HTC" and the HTC logo and other HTC trademarks, service marks, logos and product and service names are trademarks of HTC (the "HTC Marks"). You agree not to display or use any of the HTC Marks in any manner without HTC's prior written permission.
You shall defend, indemnify and hold HTC (and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys, and agents) harmless from and against any and all claims, demands, actions, proceedings, costs, damages, losses, liabilities, and expenses arising out of or in connection with your use of the Service (including the Content), violation of any law or third-party rights, or breach of this Agreement.
HTC MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, CORRECTNESS, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. HTC DOES NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (V) ERRORS OR DEFECTS WILL BE CORRECTED, (VI) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, IS HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY HTC.
IN NO EVENT SHALL HTC'S AGGREGATE LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY YOU IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HTC WILL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OR CORRUPTION OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS SERVICE, INCLUDING BUT NOT LIMITED TO YOUR USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, EVEN IF HTC HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY.
Certain jurisdictions may not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
HTC controls and operates this Service from its location in Canada. HTC makes no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside Canada, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to Canadian law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor is or will be used for nuclear activities, chemical biological weapons, or missile projects. You shall comply strictly with all Canadian export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
HTC alone will own all right, title and interest, including all related intellectual property rights, to any suggestions, ideas, feedback, recommendations, or other information provided by you relating to the Service ("Submissions") and you agree to assign such Submissions to HTC free of charge. HTC may use such Submissions as it deems appropriate in its sole discretion.
HTC may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in HTC's account information, or by written communication sent by registered first class mail to your address on record in HTC's account information. You may give notice to HTC (such notice shall be deemed given when received by HTC) at any time by any of the following: electronic mail to hourglass_notifications"at"hourglass.ca; letter delivered by nationally recognized overnight delivery service or registered first class mail, postage prepaid, to HTC at the following address: High-Touch Communications Inc. 366 Mayor Street #505, Montreal (Quebec) Canada H3A 1N8. Notice shall be deemed given (i) twenty-four (24) hours after each respective email is sent, or earlier if actually received earlier by the recipient.
HTC reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time and shall notify you by posting an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
Any dispute or claim relating in any way to your use of HourGlass, or to any products or services sold or distributed by HTC or through hourglass.ca will be resolved by binding arbitration, rather than in court. Each party to any such arbitration shall bear their own attorney's fees and costs regardless of the outcome of the action.
If any action is commenced in connection with the enforcement of this Agreement each party shall bear their own attorney fees and costs regardless of the outcome of the action.
Headings in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement.
This Agreement will be governed by and interpreted in accordance with the laws of the Province of Quebec, Canada, without regard to the choice or conflicts of law provisions of any jurisdiction. The sole jurisdiction and venue for all disputes, actions, claims, or causes of action related to this Agreement or in connection with the Service shall be Quebec courts located in the Montreal, Canada. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. The parties hereto have required that the present Agreement and all notices relating thereto be drafted in the English language. Les parties aux présentes ont exigé que la présente convention et tout avis afférant ou aux ancidaires aux présentes soient rédigés en langue anglaise. The English language version of this Agreement shall control. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and HTC as a result of this agreement or use of the Service. HTC may assign or otherwise transfer this Agreement, in whole or in part, in its sole discretion, without notice to you. You may not assign or otherwise transfer this Agreement, in whole or in part, without HTC's prior written consent and any attempt to do so will be null and void. The failure of HTC to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by HTC in writing. This Agreement comprises the entire agreement between you and HTC and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Notwithstanding any provision contained in this Agreement, HTC shall not be liable to the extent the performance of any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes; electrical equipment or availability failure; fires; floods; pandemics; acts of God; or federal, state or municipal action, statute, ordinance or regulation.
Evaluation and Beta Product Additional Terms
If the product you have received with this license has been identified as "Evaluation" Software or "Beta" Software, then the provisions of this section apply. To the extent that any provision in this section is in conflict with any other term or condition in this Agreement, this section shall supersede such other term(s) and condition(s) with respect to the Evaluation or Beta Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Evaluation or Beta Software may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, Evaluation or Beta Software is provided to you "AS-IS", and HTC disclaims any warranty or liability obligations to you of any kind. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, HTC'S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS ($50 CDN) IN TOTAL. You acknowledge that HTC has not promised or guaranteed to you that Beta Software will be announced or made available to anyone in the future, that HTC has no express or implied obligation to you to announce or introduce the Beta Software and that HTC may not introduce a product similar to or compatible with the Beta Software. Accordingly, you acknowledge that any research or development that you perform regarding the Beta Software or any product associated with the Beta Software is done entirely at your own risk. During the term of this Agreement, if requested by HTC, you will provide feedback to HTC regarding testing and use of the Beta Software, including error or bug reports. If you have been provided the Beta Software pursuant to a separate written agreement, your use of the Beta Software is also governed by such agreement. Upon receipt of a later unreleased version of the Beta Software or release by HTC of a publicly released commercial version of the Beta Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Beta Software received from HTC and to abide by the Terms of Use Agreement for any such later versions of the Beta Software. Your Use of the Evaluation or Beta Software is limited to the amount of time HTC decides that the software remains in Evaluation of Beta stage unless otherwise agreed to in writing by HTC.