This User Agreement (the "Agreement") is a legal agreement between you and Metranome Inc. ("Metranome") respecting your use of Metranome services as described herein and on Metranome’s website. BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY OTHERWISE USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If you have any questions or concerns about the terms of this agreement, please contact us at www.metranome.net/contact.html.
- 1.1 "Profile" means the information you provide to Metranome described in Section 2.2(b) and (c) below.
- 1.2 "Services" has the meaning set forth in Section 2 below.
- 1.3 "Software" means the Metranome application that a user must download to a supported mobile device in order to utilize the Services.
2. The Services
- 2.1 Metranome will provide users with the ability to have notifications and video content sent directly to a supported mobile device through the Software, tailored to the user’s Profile, in the manner described herein (the “Services”). Metranome will utilize your Profile to search for online video content that matches the interests and activities in your online communities, and will send appropriately matched video content to your mobile device. Metranome will collect data related to your video viewing patterns for future use in matching video content and providing Services to you. You will also have the ability to rate, comment, save, share and delete the video content sent to you through the Services. The Services are provided subject to the terms and conditions of this Agreement.
- 2.2 In order to use the Services, you must:
(a) provide up-to-date, complete and accurate registration information, including your first and last name, your valid mailing address, your phone number and your valid email address;
(b) provide up-to-date, complete and accurate information, including user ID and password where required, respecting the third party social networking accounts, blogs, broadcasts, and other messaging and update services (supported by Metranome) that you would like Metranome to support as part of the Services;
(c) provide up-to-date information respecting interest categories that you would like Metranome to use to direct information to you as part of the Services;
(d) be at all times in compliance with the terms and conditions of this Agreement and applicable law.
You specifically agree that Metranome may rely on the accuracy of the information provided by you to Metranome, and that Metranome will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to Metranome.
- 2.3 Metranome may provide you with certain information to allow you to use the Services, such as a user ID and a password or the ability to create a user ID and/or password (the “Access Information”). Metranome will store the Access Information in encrypted form. The Access Information is provided on the understanding that it is personal to you; you will not permit anyone other than you to obtain access to the Services using the Access Information. Metranome is not responsible or liable in any way for any use of the Services (authorized or unauthorized) by any party accessing the Services using your Access Information, and you accept all responsibility for such use of the Services and any consequences resulting from such use of the Services.
- 2.4 Metranome reserves the right to change, suspend or discontinue the Services at any time, including the availability of any feature or content, account access, or any promotion offered by Metranome. Metranome may also impose limits on the Services and/or terminate or restrict your access to parts or all of the Services without notice or liability.
- 2.5 Metranome will, and will permit third parties to, display advertising and other information as part of the Services and/or in connection with the video content provided through the Services. For greater certainty, such advertisements and information may appear within or adjacent to the video content delivered through the Services. You understand and agree that Metranome and/or applicable third parties may provide you with content-targeted advertisements or other related information. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser.
3. Your Use of the Services
- 3.1 You agree that:
(a) You will not permit anyone other than you, as an individual, to obtain access to the Services through your Metranome account or otherwise using your Access Information, and will only use the Services in accordance with this Agreement and applicable law;
(b) You will ensure that any information that is provided to Metranome pursuant to this Agreement is true, accurate, current and complete;
(c) You will be solely responsible for all activities with respect to the Services undertaken by you;
(d) You will not use the Services for any commercial purposes or for the benefit of any third party;
(e) You will not access or view any content and programming in violation of specified age recommendations, if any;
(f) You represent and warrant that you have the right and the authority to enter into this Agreement and to use the Services;
(g) You will ensure that your use of the Services does not interfere with, degrade, or adversely affect any software, system, network or data used by any person including Metranome and other users of the Services (including by ensuring that you do not upload any viruses or other harmful code in using the Services);
(h) You will not in any way use the Services to transmit harassing, abusive, libelous, illegal or deceptive messages or information, or to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any infringement of intellectual property rights, any fraudulent, obscene or pornographic activities, any deceptive impersonation, any activities involving the exploitation of children, or any activities that violate any third party’s privacy rights;
(i) You will not interfere with or in any manner compromise any of Metranome's security measures;
(j) You will not alter, modify, delete, or otherwise interfere with or in any manner compromise any content, programming, advertising, video, services and/or features accessible through the Services or Software, including, without limitation, the advertising and/or content delivery and display functionality of the Services and Software.
(k) You will cooperate with Metranome and provide information requested by Metranome to assist Metranome and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable law.
Without limiting the foregoing, you agree not to violate any applicable laws, the rights of others, or the operational and security mechanisms of the Services.
4. The Software
- 4.1 Metranome hereby grants you a personal, non-exclusive, revocable, non-transferable license to use the Software in accordance with the terms of this Agreement and solely for the purposes of using the Services. This license does not imply any rights to future upgrades or updates to, or versions of, the Software. However, if Metranome does provide you with any Software upgrades, updates or versions, such updates, upgrades and versions shall be subject to the terms and conditions of this Agreement or such agreement, if any, which accompanies such upgrades, updates or versions. Such Software upgrades, updates and versions may be subject to additional payments. You do not have the right to obtain or use any source code for the Software.
- 4.2 You shall not:
(a) copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Software or any part thereof;
(b) distribute, assign, license, sublicense, lease, rent, transfer, sell or otherwise provide access to the Software, in whole or in part, to any third party on a temporary or permanent basis;
(c) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Software (including without limitation any copyright notice);
(d) copy any written materials accompanying any portion of the Software unless specifically authorized in writing to do so by Metranome;
(e) use the Software in any way inconsistent with the use parameters for the Services;
(f) attempt to hack the Software or any communication initiated by the Software or to defeat or overcome any encryption and/or other technical protection methods implemented by Metranome with respect to the Software and/or data and/or content or programming transmitted, processed or stored by Metranome or other users of the Services;
(g) collect any information or communication about the users of the Services or Software by monitoring, interdicting or intercepting any process of or communication initiated by the Software or Services or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing
(h) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access to the Services or any computer system or that are designed to monitor, distort, delete, damage or disassemble the Software or its ability to communicate and perform the Services; or
(i) authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in (a) – (h) above, or attempting to do so.
For the purposes of this provision “copy or reproduce” shall not include copying of statements and instructions of the Software during program execution when used in accordance with and for the purposes described in the user documentation or in the course of making backups of the computer or system on which the Software is installed, in accordance with industry standard business practices.
- 4.3 You specifically acknowledge that the Software is not developed, or licensed for use in any nuclear, aviation, mass transit, or medical application or in any other inherently dangerous, time-sensitive or mission critical applications. You agree that Metranome shall not be liable for any claims or damages arising from such use if you use the Software for such applications. You agree to hold Metranome harmless from any claims for losses, costs, damages, or liability arising out of or in connection with the use of the Software for such applications.
5. Privacy and Confidentiality
- 5.2 Additionally, by submitting personal information to Metranome pursuant to this Agreement, including without limitation your name, address, e-mail address and third party account information, you consent to the collection, processing, transmission and disclosure of such information by Metranome for the purposes of Metranome’s provision of the Services and Metranome’s internal use and specifically the purposes for which such information has been requested, such as billing requirements. You specifically agree that Metranome may disclose your name, address, e-mail address and/or account information to third party service providers to the limited extent necessary to provide you with the Services.
6. Intellectual Property Rights
- 6.1 You are responsible for complying with all applicable intellectual property laws in your use of the Services, and agree to indemnify, defend and hold Metranome harmless from any and all claims that arise as a result of your non-compliance with intellectual property laws and/or your infringement of any intellectual property rights.
- 6.2 You acknowledge that the Software is owned by Metranome, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws. In addition, other intellectual property laws (including patent laws) and treaties may protect the Software and Services. It is therefore your responsibility to fully comply with such laws in using and handling the Services and Software. Nothing herein shall be construed as constituting a sale of the Software or any portion thereof to you.
- 6.3 You do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Software, the Services, or any part thereof. Your only rights to the Software, the Services and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Any rights not expressly granted under this Agreement are reserved.
- 6.3 For greater certainty, all intellectual property rights in third party content accessible through the Services and Software, including, without limitation, any content, programming, advertising, services and/or features contained in or accessed through the Software, are the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. Each such third party expressly reserves all rights into such content. You understand that you are not granted any commercial, sale, resale, reproduction, distribution or promotional use rights for or to any such third party content. Additionally, the unauthorized reproduction or distribution of such third party content, including, without limitation, any content, programming, advertising, services and/or features contained in or accessed through the Services and/or Software, is prohibited by applicable law.
7. Disclaimer of Warranties
- 7.1 THE SERVICES ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. METRANOME ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES WHATSOEVER IN THE INFORMATION PROVIDED THROUGH THE SERVICES OR SOFTWARE. UNDER NO CIRCUMSTANCES WILL METRANOME BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH USE OF THE SERVICES OR THE SOFTWARE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY INFORMATION PROVIDED, AND USE OF THE SERVICES AND SOFTWARE IS SOLELY AT YOUR OWN RISK. Metranome has no special relationship with or fiduciary duty to you, and you acknowledge that Metranome has no control over, and no duty to take any action regarding any acts or omissions taken by you or any other user of the Services, including without limitation: (a) which users use the Services, (b) what material you or other users access on or through the Services, (c) how you or any other user may interpret or use materials accessed through the Services, or (d) what actions you may take as a result of having been exposed to information obtained through the Services. Metranome makes no representations or warranties whatsoever concerning any information obtained through the Services, and Metranome will not be responsible or liable for the accuracy, copyright compliance, legality or decency of any material contained in or accessed through the Services. Some jurisdictions do not allow the exclusion of certain warranties, so the above limitations or exclusions may not apply to you.
8. Limitation of Liability
- 8.1 The only type of damages that can be recovered against Metranome arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be your direct damages, if any. In no event shall the aggregate liability of Metranome exceed the amount paid by you for the portion of the Services that gave rise to the claim. METRANOME SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SERVICES. Without limiting the foregoing, your only right with respect to any problems or dissatisfaction with the Software is to uninstall and cease use of such Software.
- 8.2 EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL METRANOME BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, COMPUTER OR MOBILE DEVICE FAILURE, PROBLEMS, LOSS OR DAMAGE ASSOCIATED WITH ANY USE OF THE SOFTWARE OR SERVICES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, EVEN IF METRANOME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
9.1 You agree to indemnify, defend and hold harmless Metranome, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of: (a) your access to the Services, the Software, and any content obtained by you through the Services or Software, (b) your use or misuse of the Services and/or Software, (c) any breach of this Agreement by you, (d) the infringement by you, or any third party obtaining access to the Services, of any intellectual property or other right of any person or entity, or (e) your violation of any third-party rights or any applicable laws. Metranome reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Metranome, at your expense, in asserting any available defences.
- 10.1 You may terminate this Agreement at any time upon notice to Metranome. Upon any termination of this Agreement for any reason (whether by you or by Metranome), you must cease all use of the Services and Software and destroy and/or permanently delete all copies of the Software in your possession.
- 10.2 Metranome reserves the right, in its sole and complete discretion, to revoke your authorization to use the Services at any time with or without cause, for any reason or no reason. Upon termination of your account, your right to use the Services, access any accounts through the Services, and any materials obtainable through the Services will immediately cease. All restrictions contained in this Agreement shall survive the termination of your right to use the Services.
- 10.3 Without limiting other remedies, Metranome may limit your activity, warn other users of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your account and refuse to provide Services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) Metranome is unable to verify or authenticate any information you provide; or (c) Metranome believes that your actions may cause financial loss or legal liability for you, other users or Metranome.
- 10.4 Metranome reserves the right to investigate suspected violations of this Agreement. You hereby authorize Metranome to cooperate with (1) law enforcement authorities in the investigation of suspected criminal violations and (2) system administrators at Internet service providers, networks or computing facilities, and other content providers in order to enforce the terms and conditions of this Agreement.
- 10.5 The above-described actions are not Metranome’s exclusive remedies and Metranome may take any other legal, equitable or technical action it deems appropriate in the circumstances. Metranome will not be liable for any damage caused by the termination of this Agreement.
11. General Provisions
- 11.1 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties. There are no provisions, representations, undertakings, agreements, or collateral agreements between the parties other than as set out in this Agreement.
- 11.2 This Agreement is governed by the laws of the Province of Ontario, 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 Ontario, Canada. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement or to any contracts relating to goods or services obtained through this site.
- 11.3 You acknowledge and agree that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Metranome to show your acceptance of this Agreement and/or your agreement to download and install the Software and/or use the Services), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Software or the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. 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.
- 11.4 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 this Agreement shall continue in full force and effect.
- 11.5 It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
- 11.6 If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Software. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, you may not enter into this Agreement and you may not download, install or use the Software. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction if your use of the Software and Services is allowed.
- 12.1 If you have any questions regarding this Agreement, or if you have any legal concern relating to Metranome or its business, please contact Metranome at:
- Metranome Inc.
515 Dotzert Court, Unit 5
Waterloo, ON N2L 6A7
Att: Privacy Officer