Tutela Technologies Ltd. ("Tutela") Content Terms & Conditions of Service

Download the Tutela Terms and Conditions here.

BEFORE REQUESTING ACCESS TO TUTELA'S CONTENT (THE "CONTENT") OR LOGGING INTO TUTELA'S CONTENT DELIVERY SYSTEMS (the "CONTENT SYSTEM") OR OTHERWISE ACCESSING THE CONTENT YOU MUST CAREFULLY READ THE TERMS AND CONDITIONS IN THIS AGREEMENT GOVERNING YOUR USE OF THE CONTENT AND CONTENT SYSTEM. BY ACCESSING THE CONTENT AND CONTENT SYSTEM AND USING THE SERVICES DESCRIBED HEREIN, YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF AN ORGANIZATION OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND SUCH ORGANIZATION OR ENTITY, AND "YOU" AND "YOUR" SHALL REFER TO SUCH ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD NOT USE THE CONTENT AND CONTENT SYSTEM.

The following terms and conditions of service (this "Agreement") govern your use of the Content and Content System. In this Agreement, "Content" includes all reports, data and any other information available in the Content System and any reports, data or any other information received from Tutela through other ancillary services offered by Tutela and used by you (all collectively referred to in this Agreement as the "Service").

The Content are prepared by Tutela and contain anonymous mobile network coverage and experience statistics from mobile devices. The Content may include without limitation, wireless network signal strengths, download speeds, latency and other wireless network performance metrics, wireless network performance characteristics, and location-based wireless network usage trends exhibited by end-users of mobile applications.

The phrases "you" and "your" means any person, group or other entity named in an enrollment or signup form completed by that person, group or other entity with respect to the Service, and includes any other person, group, entity or any employee, agent or contractor having access to the Service.

1. LICENSE

1.1 Grant of License. Subject to the terms, conditions and restrictions set out in this Agreement, Tutela grants, and you hereby accept, by virtue of you using the Service and the Content, a limited, non-transferable, nonexclusive, worldwide, enterprise-wide and revocable license (the "License") for your internal use and not for resale or further distribution to use the Service and to access and use the Content.

1.2 License Term. This Agreement will commence as of the date you accept these terms or use the Service (the "Effective Date") and will continue in full force and effect until otherwise terminated pursuant to the provisions hereof.

1.3 Restrictions. You acknowledge that the Service and the Content constitute valuable trade secrets and Confidential Information (as herein defined) of Tutela and its licensors. Except as otherwise set out in writing, including electronic correspondence, or by a paid subscription to use the Service or the Content, you shall not:

(a) disclose the Content to any third party without the express written consent of Tutela; (b) copy or use the Service or the Content; (c) alter, modify, duplicate, translate, de-compile, reverse engineer, or attempt to recreate the Service or the Content, in whole or in part; (d) modify or create any derivative works from the Service or the Content any part thereof; (e) merge the Service or the Content with any other software for any purpose other than authorized by this Agreement; (f) disclose to any third party any performance information or analysis relating to the Service and the Content; (g) license, sublicense, sell, convey, assign, transfer, give, lend, rent, transfer or otherwise grant any right to any of the Service or the Content or any of your rights hereunder, in whole or in part, voluntarily or involuntarily, by operation of law or otherwise, to any person, individual, legal or personal representative, partnership, company, corporation, syndicate, association, trust or governmental body otherwise; (h) build an identical product to the Service or a product with similar ideas, features and functionality as the Service; (i) compete with the Service or with Tutela in any way; (k) use any information from the Service or the Content, or combine that information with any other information, to in any way identify an individual user or person of a particular mobile device that is included anonymously in the information available from the Service or the Content (l) copy any ideas, features or functions of the Service; (m) use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service; (n) use the Service to copy, store, host, transmit, send, use, publish or distribute any material that consists of or is linked to any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit, or other malicious software; or (o) use the Service in any way which is unlawful, illegal, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.

1.4 Limiting Access. You shall not permit persons other than your authorized representatives to access the Service. You represent that you are not a competitor of Tutela and agree that you shall not knowingly allow competitors of Tutela to access the Service.

2. OWNERSHIP

2.1 Ownership. Tutela and its licensors own all right, title and interest in and to the Service, the Content and all other content including without limitation, all copyrights, trade secrets, patents, and other intellectual property rights. Upon termination of this Agreement unless otherwise provided herein, all of your rights in connection with the Service and the Content, including but not limited to the right to access and use the Service and the Content, will terminate.

2.2 Trade-marks. The trade-marks, logos and company names of Tutela or any of its affiliates and licensors used as part of the Service and the Content may not be copied, imitated or used, in whole or in part, without the prior written consent of Tutela or any such affiliate or licensor. Other products, logos and company names mentioned as part of the Service and in the Content, may be the trade-marks of their respective owners.

2.3 Proprietary Notices. You agree not to alter, remove, deface or destroy any copyright, trade-mark or proprietary markings or confidential legends placed upon or contained in the Service and the Content or in or on any related material.

3. PRIVACY

3.1 Collection. As a condition of your access to the Service, you agree that Tutela has the right to collect, retain and use, your personal information for the operation and administration of the Service. Tutela collects all personal information in accordance with Tutela's Privacy Charter which is available here.

4. WARRANTIES

4.1 Warranty Disclaimer. TUTELA DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICE AND THE CONTENT TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICE AND THE CONTENT ARE PROVIDED "AS IS" AND TUTELA AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, TUTELA DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE SERVICE OR THE CONTENT ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, VIRUS-FREE, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. TUTELA DOES NOT WARRANT THAT USE OF THE SERVICE WILL ENABLE YOU TO ACHIEVE ANY PARTICULAR RESULT IN YOUR BUSINESS OPERATIONS OR EARN ANY REVENUE.

THE SERVICE IS OPERATED IN BRITISH COLUMBIA, CANADA. TUTELA DOES NOT REPRESENT THAT CONTENT PRESENTED BY THE SERVICE ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS OR JURISDICTIONS. IF YOU ACCESS THE SERVICE FROM A JURISDICTION OTHER THAN BRITISH COLUMBIA, CANADA, YOU AGREE THAT YOU DO SO ON YOUR OWN INITIATIVE, AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL LAWS THAT MAY BE APPLICABLE TO YOU.

5. LIMITATION OF LIABILITY

5.1 IN NO EVENT WILL TUTELA ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, COST OF COVER, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE CONTENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN ADDITION, EXCEPT WITH RESPECT TO CLAIMS BASED ON WILFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL TUTELA BE LIABLE FOR ANY DAMAGES OF ANY KIND GREATER THAN THE AMOUNTS PAID TO TUTELA HEREUNDER. TUTELA WILL NOT BE LIABLE FOR ANY DELAYS OR DAMAGES ATTRIBUTABLE TO PROBLEMS INHERENT IN INTERNET AND ELECTRONIC COMMUNICATION. THESE LIMITATIONS WILL APPLY EVEN IF TUTELA HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION SHALL APPLY EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OF THIS PROVISION.

6. INDEMNIFICATION

6.1 Indemnification by You. You shall indemnify, defend and hold Tutela its subsidiaries, affiliates or any of their respective directors, officers, employees or agents harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees on a solicitor and own client basis, directly or indirectly resulting from or relating to: (a) your use of the Service, the Content or any information received from Tutela; (b) any allegation that you have engaged in conduct, which if true would breach your warranties or obligations under this Agreement; (c) your negligent or wilful misconduct; or (d) any violation by you of any privacy laws, regulations or directives relating to the collection, use or disclosure of any information. Tutela reserves the right to participate in the defence of any such claim and to be represented by counsel of its choice.

7. TERM AND TERMINATION

7.1 Termination Upon Insolvency. This Agreement will terminate, effective upon delivery of written notice by a party hereto, (a) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party, (b) upon the making of an assignment for the benefit of creditors by the other party, or (c) upon the dissolution of the other party.

7.2 Termination for Convenience. Tutela may terminate this Agreement immediately at any time and for any reason. You may terminate this Agreement by providing Tutela with at least ninety (90) days written notice.

7.3 Survival of Certain Terms. Sections 1.3, 2, 4, 5, 6, 8, 9.4, 9.5 and all other provisions of this Agreement which by their nature and intent are reasonably required to survive termination based on the terms of this Agreement shall survive termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement.

7.4 Effect of Termination. Upon termination of this Agreement for any reason your access to the Service will end immediately and your account will be disabled. On termination, you must immediately return and/or destroy all Content and any other information or data accessed through the Service.

8. CONFIDENTIAL INFORMATION

8.1 Neither party shall use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other party will use the highest commercially reasonable degree of care to protect that Confidential Information. The Service and the Content, including methods, ideas or concepts utilized therein, and all information identified by a disclosing party as proprietary or confidential ("Confidential Information") will remain the sole property of such disclosing party, and will not be used or disclosed to any third party without the express written consent of the disclosing party (except to employees or consultants who are bound by a written agreement with such party to maintain the confidentiality of such Confidential Information in a manner consistent with this provision). Items shall not be considered to be Confidential Information if they are (a) available to the general public through means other than through the Service or other than by a breach of this Agreement or an agreement with the disclosing party, (b) rightfully received from a third party not in breach of an obligation of confidentiality, (c) independently developed by employees of recipient without access to the Confidential Information of the disclosing party, (d) rightfully known to the recipient at the time of disclosure, or (e) produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.

9. GENERAL

9.1 Notices. Any notice required or permitted hereunder will be in writing and may be given by electronic mail to Tutela at info@tutelatechnologies.com. Such notice will be deemed to have been received twenty-four (24) hours after it was sent. Tutela may deliver notice to you by the mailing addresse(s), electronic mail addresse(s), facsimile number(s) provided by you to Tutela at the time you registered to use the Service and such notice will be deemed to have been received twenty-four (24) hours after it was sent.

9.2 Assignment. This Agreement may not be transferred or assigned, in whole or in part, by either party either voluntarily or by operation of law without the prior written consent of the other party, which consent shall not be unreasonably withheld.

9.3 Governing Law. This Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein.

9.4 Arbitration. Except for disputes for which injunctive relief is sought (for example, to prevent the unauthorized use or disclosure of Content, proprietary materials or information, or Confidential Information) the following procedures shall be used to resolve any dispute arising out of or in connection with this Agreement. Promptly after the written request of either party, each of the parties shall appoint a designated representative to meet in person or by telephone to attempt in good faith to resolve any dispute. If the designated representatives do not resolve the dispute within ten (10) days of such request, then an executive officer of each party shall meet in person or by telephone to review and attempt to resolve the dispute in good faith. The executive officers shall have ten (10) days to attempt to resolve the dispute. Any disputes that are not otherwise resolved by the parties shall be submitted to binding arbitration in Vancouver, British Columbia in accordance with the Arbitration Act (British Columbia) (the "Act"). Before entering into arbitration, the parties shall each appoint an arbitrator, and these two arbitrators shall select a third arbitrator to be a member of the arbitration panel. Should the two arbitrators not be able to agree on a choice of the third arbitrator, then the parties shall defer to the procedure for selection of an arbitrator under the Act. None of the arbitrators shall be officers or employees of the parties. Each such arbitrator shall be a lawyer having experience and familiarity with information technology disputes. The arbitrators shall have the right to award costs, fees and expenses, including but not limited to the arbitrators' fees and reasonable lawyers' fees, to the prevailing party. The parties will jointly pay arbitration costs pending a final allocation by the arbitrators. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator's decision shall be final and binding upon the parties.

9.5 Injunctive Relief. You agree and acknowledge that monetary damages may not be a sufficient remedy for any breach of this Agreement and that Tutela shall be entitled to seek specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach of the Agreement by you, in addition to any other remedies available at law.

9.6 Force Majeure. Under no circumstances will either party be liable to the other for any failure to perform its obligations where such failure results from causes beyond that party's reasonable control.

9.7 Independent Contractors. The relationship of Tutela and you established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (a) give either party the power to direct and control the day to-day activities of the other, (b) constitute the parties as legal partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (c) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of Tutela and you are the parties' sole respective responsibilities.

9.8 Gender, Plural and Singular. In this Agreement, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa and modifications to the provisions of this Agreement may be made accordingly as the context requires.

9.9 Severability. If any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

9.10 Entire Agreement and Waiver. This Agreement and all documents incorporated by reference hereto will constitute the entire agreement between the parties with respect to its subject matter, and all prior agreements, representations, and statements with respect to such subject matter are superseded. This Agreement may be changed by Tutela upon notification to you or by a written modification agreement between both parties. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such breaches and the waiver of any breach will not act as a waiver of subsequent breaches.