Terms of Service
Last Updated: November 4, 2014
TERMS OF SERVICE
264 Botsford Street, Suite 201
Moncton, NB E1C 4X7
Tel: (506) 855-6503
Fax: (506) 384-7241
As used in these Terms of Service the following words and/or phrases have the following meanings: “Application” means Company’s proprietary software designed for use on a mobile device and accessible through the iTunes App Store, together with all related technology and/or features and Intellectual Property Rights therein. “Site” means Company’s website, which is accessible www.ginglelive.com and www.gingle.tv “Content” means, collectively, any location information, text, data, graphics, interactive features, images, photos and video clips made accessible by Company through the Services, and includes any and all Company trade-marks, service marks, copyrights, trade-names, logos, domain names, and other distinctive brand features or proprietary rights notices, and includes any content provided through the Google Maps API, including but not limited to map and terrain data, photographic imagery, traffic data and places data. “Services” means live streaming services that enable the sharing of audio and/or video content via the Internet, mobile and other data delivery means through the use of the Application and the Site, and includes any services provided by Company that are ancillary thereto. “Member” means an individual or business end user who has registered for an account by completing and submitting the registration form contained on the Site or in the Application, or both. “Member Submissions” means, collectively, the text, data, graphics, images, photos and video files and other content and information which Members stream, post, upload or otherwise submit via the Services. “Google Maps API” means the collection of services that allow Company (and others) to include maps, geocoding, places and other content from Google in Company’s Site and/or Application. “Intellectual Property Rights” means all intellectual property rights, whether existing under intellectual property, unfair competition or trade secrets laws, or under provincial, territorial, or common law or equity, regardless of whether such rights arise under the law of Canada or any other country or jurisdiction, including but not limited to (i) copyrights, trade secrets, trade-marks, trade names, patents, inventions, designs, logos, and other proprietary rights as may exist now or hereafter come into existence; (ii) any application or right to apply for any of the rights referred to in this paragraph; (iii) any and all renewals, extensions and restorations thereof, and (iv) rights to sue for past, present or future infringement. “Third Party Content” means the Member Submissions and any and all links to third party websites, resources or services that are not owned or controlled by Company.
In order to access certain features of the Services and to post Member Submissions you will have to register an account with Company and become a Member. To register you must be at least 18 years of age or have parental consent. The Services are not intended for use by children. In the event that you, as a legal guardian, wish to allow your child to use the Services, you acknowledge that it is your responsibility to determine whether use of the Services is appropriate for your child. When you register, you must choose a username and a password. Your username, geographical position (derived through the use of GPS triangulation or any other means) and the time and date of your posts will be made available to the public in connection with your Member Submissions, if any. Additionally, all Members and other visitors who use or access the Services will able to see the Members you subscribe to follow, the Members who follow you, and the Member Submissions you mark as favourites. You agree that you are responsible for safeguarding your password. Accordingly, you agree not to disclose your password to any third party and that you will be solely responsible for any activities taken under your account, whether or not you have authorized such activities. You must immediately notify Company of any breach of security or unauthorized use of your account, at the contact information provided above. You agree that any registration information you provide to us will always be correct, accurate, up to date and complete. Company reserves the right to refuse registration, require you to change your username or cancel a username for any reason and may do so at anytime, in its sole discretion.
3. Grant of License.
a. Licence Grant. Subject to your compliance with these Terms of Service, Company grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable licence to (i) download and install a copy of the Application onto a mobile device that you own and control, and (ii) access or use the Services solely for your personal, non-commercial or commercial use (as legally expressed by Canadian law). Any questionable commercial use of the Services is expressly prohibited without prior written approval from Company. b. Support Services. You may contact Company with respect to all issues and/or bugs related to the Services at the contact information provided above or you may refer to the Company Help page. Company will use reasonable efforts to correct the issues and/or bugs. Critical issues will be resolved as soon as reasonably possible by Company. c. Third Party Content. The Services contain Third Party Content. You agree that Company has no control over, and assumes no responsibility of any kind for, Third Party Content or any technical, privacy or related policies associated therewith. We encourage you to exercise caution when navigating away from the Site or Application. By using the Services you expressly release Company from any and all liability arising from your use of or access to Third Party Content. d. Restrictions. You will use the Services only for the purposes expressly set forth in this section 3. Except as expressly specified in these Terms of Service you may not (i) copy, reproduce, duplicate, modify or create any derivative works of the Services, including, but not limited to translations, localizations, adding new features or otherwise making adaptations or modifications that alter the functioning of the Services; (ii) transfer, sell, resell, rent, lease, trade, distribute, redistribute, encumber, sublicense or otherwise assign or transfer any rights to, or any portion of, the Services to any third party; (iii) make the Services and/or its functionality available to multiple users through any means, and (iv) use the Services in a manner inconsistent with Section 9 of these Terms of Service. You agree not to disassemble, decompile, reverse engineer or otherwise attempt to derive the algorithms of the Application, in whole or in part, or permit or authorize a third party to do so. You agree that you will not use the Services for any purposes prohibited by Canadian law or any other law, as applicable. e. Data Usage and Streaming Capacity. You acknowledge and agree that your use of the Services from your mobile device involves the transmission of data. If you access or use the Services on your mobile device, your carrier’s normal rates and fees will apply. Payment of these fees, including without limitation, data usage fees, is your sole responsibility and Company will have no liability for same. Company will have no liability for any for any interruptions, cessations, errors or delays which result from limitations of network bandwidth capacity.
4. Modifications and Upgrades
Company reserves the right, at its sole discretion, to (i) modify, suspend, discontinue or terminate all or any part of the Services, at any time and without notice to you, and (ii) update or revise the Terms of Service and to post such updated or revised Terms of Service on the Site, within the Services or otherwise provide you with notice of the modification. You agree that Company shall not be liable to you or to any third party for any such modification, revision, suspension, discontinuance or termination. Please check the Terms of Service periodically for changes. The Terms of Service will always indicate the “Last Updated Date” at the top of this document. If there are any modified terms and conditions that are not acceptable to you, you must cease using the Services and, where applicable, cancel your Member account. Your continued use of the Services following the posting of any changes to the Terms of Service constitutes your agreement to be bound by those changes. Company is not obligated to maintain or support the Services, or to provide you with updates, upgrades or services related thereto. You understand and acknowledge that Company may from time to time, and in its sole discretion, issue updates or upgrades to the Application, which may automatically be downloaded and installed on your mobile device. You consent to receiving such automatic updates or upgrades on your mobile device (and permit Company to deliver these to you), and agree that these Terms of Service will apply to all such updates or upgrades.
5. Termination and Member Account Cancellation
a. In the event that you breach these Terms of Service, and without limiting other remedies, Company may immediately terminate or suspend your access to the Services and remove any Member Submissions from the Services or our servers. In addition, we may notify the proper authorities, and you hereby grant your consent for us to cooperate and consult with such authorities, or take any actions we deem appropriate, without notice to you, if we suspect or determine, in our sole discretion, that you have or there is a risk that you have: (i) failed to comply with any provision of these Terms of Service or any policies or rules established by Company; or (ii) engaged in actions relating to or in the course of using the Services that may be unlawful or cause liability, harm, embarrassment, harassment, abuse or disruption to Company, Users, third parties or the Services. b. You may terminate your Member account at any time and for any reason by selecting “Close Account” in your account preferences. Upon termination by a Member, you may be prevented from accessing the Services, your account details and Member Submissions that were contained in your account prior to termination. c. After termination for any reason, you understand and acknowledge that we will have no further obligation to provide the Services and your access to the Services will be limited to those parts of the Services that are available to non-members. Upon termination, all licences and any other rights granted to you by these Terms of Service will immediately cease. Company is not liable to you or any third party for termination or suspension of the Services or any part thereof. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION (INCLUDING MEMBER SUBMISSIONS) THAT YOU HAVE SUBMITTED IN RELATION TO THE SERVICES MAY NO LONGER BE ACCESSED BY YOU AND MAY BE PERMANENTLY DELETED. Company will have no obligation whatsoever to maintain any information related to your account (including Members Submissions) or to provide any information to you or any third party. You are advised to retain back-up copies of your Member Submissions. Any suspension, termination or cancellation will not affect your obligations to Company under these Terms of Service (including but not limited to provisions dealing with ownership, warranty disclaimers, indemnification and limitation of liability) or those provisions which by their nature are intended to survive such suspension, termination or cancellation.
6. Copyrighted Materials.
YOU WILL NOT USE THE SERVICES TO TRANSMIT, POST, UPLOAD, INPUT, SUBMIT, DISTRIBUTE, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES ANY COPYRIGHT OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF COMPANY OR ANY THIRD PARTY. Company reserves the right to disable and/or terminate the accounts of Members who infringe on the Intellectual Property Rights of others. If you believe that your Intellectual Property Rights, including copyright, have been infringed please provide Company with the following information in writing: (i) a description of the work or other intellectual property that you believe has been infringed; (ii) a description of where this work or other intellectual property is located on the Services; (iii) your contact information, including your address, telephone number and email address; (iv) a statement by you that you have a good faith belief that the disputed use of the work or other intellectual property is not authorized by the owner, its agent or the law; (v) a statement by you that the above information is accurate and that you are the owner of the intellectual property interest or authorized to act on the owner’s behalf; and (vi) the signature of the person authorized to act on behalf of the owner of the intellectual property interest. Please send claims of intellectual property infringement to the contact information provided above.
7. Intellectual Property Rights and Ownership.
a. Ownership. Company and/or its licensors own all right, title and interest in and to the Services, the Content, the Application and the Site including all Intellectual Property Rights associated therewith. You understand and agree that the Application is licensed and not sold to you. You will not reproduce, rent, lease, loan, modify, adapt, create derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Services, the Content, the Application or the Site, except as expressly set out in these Terms of Service. You shall not delete remove, obscure or in any way alter any Content accompanying or appearing on the Application and/or the Site as delivered to you. b. Member Submissions. i. Grant of Licence to Company. Company does not claim ownership rights in Member Submissions. However, by uploading, streaming, submitting, emailing, posting, publishing, inputting, providing, distributing or otherwise transmitting any such Member Submissions, you are granting Company a non-exclusive, transferable, royalty-free, sublicensable, perpetual and irrevocable worldwide right and licence to reproduce, rent, lease, loan, modify, adapt, create derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license and otherwise use, exploit and alienate such Member Submissions in any form, medium, device or technology now known or later developed, including, without limitation, on third party websites and/or other platforms where the Services may be syndicated. By way of example, and without limiting the foregoing, Company shall have the right to insert, place or include any and all types of advertisements within or around your Member Submissions without approval by you. No compensation of any nature or kind will be paid with respect to the use by Company of Member Submissions. You warrant and represent that you own or otherwise control or have the necessary licences, rights, consents and permissions to grant the foregoing licences to Company. ii. Limitations. You understand and agree that Company may, in its sole discretion, establish limits concerning Member Submissions, including, without limitation, the maximum number of days that Member Submissions will be accessible through the Services, the maximum size of any files that may be uploaded using the Services and the maximum total disk space that will be allotted to you for the storage of your Member Submissions on Company’s servers. Company shall have no responsibility or liability for any resultant loss of files or other data and it is your sole responsibility for creating back-ups of your Member Submissions. iii. Disclaimer. Company reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse, remove and/or permanently delete any Member Submissions from the Services without notice. Company does not control the Member Submissions that are uploaded, streamed, submitted, emailed, posted, published, inputted, provided, distributed or otherwise transmitted using the Services and does not have any obligation to monitor such Member Submissions for any purpose and, as a result, is not responsible for the accuracy, correctness, completeness, appropriateness, or legality of Member Submissions. Company does not endorse any Member Submission or any opinion, recommendation, or advice expressed therein, and you agree to waive any legal or equitable right or remedy you have or may have against Company with respect thereto. You agree that your use of the Services is at your own risk, and Company will have no responsibility or liability to you or any third party of any nature or kind as a result of your use of the Services.
8. iTunes Terms and Conditions.
Without limiting any of these Terms of Service, the following applies to any Application accessed through or downloaded from the Apple iTunes Store: i. You understand and agree that (i) these Terms of Service are concluded between you and Company only, and not with Apple, and Company, not Apple, is solely responsible for the Application and the content thereof; ii. You shall only use the Application as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service; iii. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and/or support services with respect to the Application; iv. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Company’s sole responsibility; v. Company, not Apple, is responsible for addressing any claims of you or any third party relating to the Application or your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; vi. You acknowledge that, in the event of any third party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim; vii. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; and viii. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms of Service, and that, upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as a third party beneficiary thereof.
Your use of the Services and access to the Content is at your sole discretion and risk. The Services, Content and all materials, information, products and services included therein or accessed therefrom, are provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any nature or kind. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SERVICES, THE SITE, THE APPLICATION, AND THE CONTENT, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, MERCHANTABILITY, USAGE, CUSTOM, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. COMPANY DOES NOT GUARANTEE THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY CONTENT, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF THIRD PARTY CONTENT.
11. Limitation of Liability.
IN NO EVENT WILL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY CLAIMS, LOSSES, OR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH (I) YOUR USE OF THE SERVICES, OR ACCESS TO THE CONTENT AND/OR MEMBER SUBMISSIONS; (II) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR MEMBER SUBMISSIONS; (III) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE OR KIND WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS, MEMBER ACCOUNTS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES; AND/OR (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, WHETHER OR NOT THE DAMAGES ARE FORESEEABLE AND WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY WHATSOEVER, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND IN NO EVENT WILL COMPANY’S CUMULATIVE LIABILITY TO YOU EXCEED $100. YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY SHALL NOT BE LIABLE FOR MEMBER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
You agree to defend, indemnify and hold harmless Company and its employees, contractors, agents, officers and directors from any and all liabilities, claims, proceedings, damages, losses and expenses, including attorney’s fees, arising from or relating to (i) your Member Submissions, (ii) your use or misuse of the Services, (iii) your non-compliance with the Terms of Service, and (iv) your violation of any third-party rights, including but not limited to claims for infringement of Intellectual Property Rights. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Company in asserting any available defenses.
13. Feedback and Independent Development.
a. Feedback. Your feedback is welcome and encouraged. You may submit feedback by contacting us at the contact information provided above or via the applicable links located on the Site. You acknowledge and agree that if you elect to provide suggestions, ideas, proposals, concepts or other feedback to us (whether written, verbal or in any other format or manner) (“Feedback”), Company has no obligation (whether of confidentiality, compensation or otherwise) with respect to such Feedback and we will be free to use and exploit the Feedback in any manner without restriction of any kind. You acknowledge and agree that all Feedback will be the sole and exclusive property of Company. You hereby irrevocably transfer and assign to Company all of your right, title, and interest in and to all Feedback. b. Independent Development. Further, you acknowledge and agree that Company is engaged in creating and developing its own products, services, programs, plans, projects and applications and it is possible that we are already independently developing products, services, programs, plans, projects and applications that are similar to and/or competitive with your Feedback (including the concepts contemplated by or embodied therein). Nothing in these Terms of Service will be construed as a representation or agreement that we will not develop (or have developed on our behalf), distribute, market or promote products, services, programs, plans, projects or applications that are similar to and/or compete with the products, services, programs, plans, projects, or applications including the concepts contemplated or embodied in any Feedback or compensate you or provide you with any input or response with regard to your Feedback.
This agreement is governed by the laws of the Province of New Brunswick, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of New Brunswick, Canada. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to t hese Terms of Service. No joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this agreement or your use of the Services. You may not assign these Terms of Service or assign or delegate any rights or obligations hereunder, in whole or in part, without the prior written consent of Company. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. A waiver by Company of any provision of these Terms of Service, or any breach thereof, in any one instance, shall not waive such provision or any subsequent breach thereof. Unless otherwise specified herein, this agreement constitutes the entire agreement between you and Company with respect to the Services, Site and Application and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Company with respect to the Services, Site and Application. You agree to execute and deliver any such documentation and/or consents, perform further acts and provide all assistance and information reasonably requested by Company to give effect to these Terms of Service. Any notice or other communication to be given hereunder will be in writing and given (a) by Company, via email (in each case to the address that you provide) or by posting on the Site or Services and (b) by you, to the address listed above or to such other addresses as Company may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Where the Terms of Service have been provided in a language other than English, you agree that the translation is provided for your convenience and that the English version of these Terms of Service shall govern to the extent of any conflict which may exist.