TERMS AND CONDITIONS (“TERMS”)
Last Revised: April 4, 2021
These Terms and Conditions (“Terms”) are between you (the “Customer”) and MapleWiz Solutions Inc. dba YoPets (“YoPets”) and they govern your use of the Services and Devices (as defined and further explained below).
If you have any questions relating to these Terms, please contact YoPets by email at email@example.com.
PLEASE READ THIS ENTIRE DOCUMENT CAREFULLY BEFORE INSTALLING THE DEVICE AND USING THE SERVICES. THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CERTAIN EXCLUSIONS AND LIMITATIONS ON THOSE RIGHTS, INCLUDING:
· LIABILITY LIMITATIONS AND EXCLUSIONS
· AN INDEMNITY FROM YOU
· A FORUM SELECTION CLAUSE
ACCEPTANCE OF THESE TERMS CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND YOPETS.
The following definitions apply to this Terms:
“Affiliate” has the meaning given to it in the Canada Business Corporations Act, R.S., 1985, c. C-44, and includes a partnership in which a party, including Customer, has a controlling interest.
“Applicable Laws” means all applicable federal, provincial, state, municipal and local laws, statutes, by-laws, rules, order (including court and regulatory orders), regulations, and codes in effect from time to time and made or issued by governmental, legislative, administrative or regulatory authorities or agencies.
“Charges” means the charges payable by Customer to YoPets for the Devices and/or Services, including applicable data fees, fixed monthly charges, installation, upgrade and support fees and any other charges incurred in using the Services.
“Customer Data” means the information and data generated by the Devices and the provision of the Services, including Location Information and any information that comes from Customer’s vehicle, pet or other item, and information that incorporates or is derived from the processing of such information or data.
“Device” means the YoPets real-time global positioning satellite locator device which monitors and collects global positioning satellite (“GPS”) coordinates to show the location of a pet, PDA or other item.
“Effective Date” means the date the Customer agrees to these Terms.
“Intellectual Property” means all intellectual and industrial property including without limitation all works in which copyright subsists or may subsist, documentation, text and other literary works, computer programs, designs, industrial designs, trade secrets, confidential information and know-how, trademarks, trade names, discoveries and inventions, and integrated circuit topographies.
“Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Location Information” means the GPS coordinates showing the location of the pet, PDA or item chosen by the Customer.
“Services” means the services provided by YoPets associated with the Devices, including monitoring and collection of Location Information, and the YoPets Customer App.
“Service Orders” means the initial and subsequent orders, placed, through the online order form, by the Customer and accepted by YoPets for Devices and Services to be provided by YoPets. A Service Order is also placed by the Customer for changes, additions or modifications to a Service.
“User” means any person (including but not limited to the Customer), firm, corporation or other entity, that utilizes the Devices or Services, including the Customer’s own employees or contractors. Derivative terms such as “Usage” or “Use” will have corresponding meanings.
“Warranty Period” means the one-year period commenced from the activation date of a Device.
“YoPets Customer App” means the YoPets proprietary mobile app for Android and iOS through which the Customer can access its Customer Data.
2.1 Services. YoPets agrees to provide the Services, including the provision of Devices to the Customer as described in each Service Order from time to time pursuant to provisions of these Terms and any specific terms and conditions set out in the applicable Service Order (the “Service Terms”).
3. CHARGES AND PAYMENT TERMS
3.1 Charges. Customer shall pay YoPets the Charges for the Device and all Services, as specified and at the prices as set forth in each Service Order or otherwise pursuant to these Terms. One-time and annual Charges are to be paid in full upon execution of the applicable Service Order. For recurring Charges for the Services, YoPets will charge you according to the frequency period set out in the Service Order. .
3.2 Payment Terms. Activation of the Services and provision of the Devices is conditional on acceptance of your payment option (PayPal, credit card or debit card) and any reasonable account verification that YoPets may require. You acknowledge that YoPets will collect all Charges through its pre authorized payment service. With respect to the initial one-time Charge for the Device, YoPets will deliver the Device upon successful payment of the Charge. YoPets will charge you interest on any outstanding balances at a rate of at the rate of 1.5% per month (19.56% per annum), or the maximum legal rate, if less.
3.3 Taxes. Taxes, such as sales, use, service, value added or like taxes, are not included in the Charges and will be invoiced, if applicable, as separate items.
(a) Title to the Device will pass to the Customer upon full payment of the Charges for the Device.
(b) The Customer shall not remove, tamper with, rearrange, disconnect, reconfigure or repair any Devices, including passwords and equipment identifiers, or to perform a software reset of any Devices without the prior written permission of YoPets. The Devices may contain technological measures (including the ability to disable the Devices) designed to prevent the illegal usage of software or other violations of these Terms or applicable law. The Customer shall not circumvent or attempt to circumvent such measures.
4.2 Software Licence
(a) YoPets grants the Customer a limited, revocable, non-exclusive, non-assignable, non-sublicensable licence to: (i) use any software, firmware and intellectual property (collectively “Software”) embedded in the Devices; and (ii) use the YoPets Customer App, solely for Customer’s own business purposes and solely in connection with using the Services.
4.3 Intellectual Property
(a) Other than the Customer Data, the: (a) Services; (b) Devices, (c) YoPets Customer App, and all functionality available on or in respect of the Services, Devices or the YoPets Customer App, including all customizations, enhancements, improvements and other modifications of thereof (collectively, “Derivatives), are the property of YoPets or its licensors, and is protected by Canadian and international copyright laws. Except for the specific licenses granted in these Terms, these Terms do not transfer any Intellectual Property Rights to the Customer and all rights to the Services, the Devices and the YoPets Customer App are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in the Services or Platforms are the property of their respective owners.
(b) Except as otherwise provided in these Terms, the Customer shall not (i) make any modifications, or improvements to, or derivative works of the YoPets Customer App or Devices; (ii) reverse engineer, decompile or otherwise attempt to derive the source code, underlying ideas, algorithms, structure of organization of the YoPets Customer App or Devices; (iii) resell, sell, export, transfer, distribute, market, and/or sublicense the YoPets Customer App or Devices; or (iv) otherwise use the YoPets Customer App or Devices except as authorized pursuant to these Terms.
5. CUSTOMER DATA
5.1 The Customer shall be solely responsible for any and all personal data and information related to identifiable individuals it provides through the Services (“Customer Data”). Customer shall retain ownership of Customer Data, subject to the rights and permissions granted in this section 5. By providing Customer Data to YoPets, the Customer grants all such rights and permissions in or relating to Customer Data to YoPets as are necessary to provide the Services.
5.2 Notwithstanding anything to the contrary, YoPets has the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (which may include Customer Data and/or information collected from or about an individual user or device, as well as data about Users access and use of the Services, and data and information based on or derived from Customer Data), and Customer hereby grant YoPets the right to (a) use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such information and data to provide and/or market the Services, to prevent and fix technical problems with the Services and for other diagnostic and corrective purposes in connection with the Services and other YoPets offerings, to analyze, improve and enhance the Services, to create modeling and analytics, and for research and development purposes, (b) disclose such information and data, provided that YoPets shall not disclose Customer Data or information derived from Customer Data to third parties unless such information has been aggregated, de-identified and/or anonymized such that it cannot reasonably be used to identify a specific individual or customer, and (c) disclose such information in other ways upon specific consent.
6. OBLIGATIONS OF CUSTOMER
6.1 Customer Responsibilities. In addition to any other obligations of the Customer under these Terms, including any Service Order, the Customer shall:
(a) be solely responsible for use of the Services by any of its Users, and take all necessary measures to ensure that Users use the Services in accordance with the terms of these Terms;
(b) comply with Applicable Laws and ensure that its Users comply with Applicable Laws;
(c) comply with export control laws of Canada and not export or re-export any Device directly or indirectly in contravention of such laws;
(d) not use or abuse the Services, or permit others or assist others to do so, in any manner that interferes with YoPets’s ability to provide the Services, the YoPets’ network;
(e) not use the Devices as part of a fail-safe design for dangerous or emergency applications or as part of control measures required for hazardous materials, life support systems, munitions or weapons;
(f) only use the Device on commercial aircraft, including checked baggage, in accordance with Applicable Laws;
(g) not use the Services to engage in any activity that interferes or disrupts services or any computer, software, network or other device used to provide the services; or
(h) not use or abuse the Services, or permit or assist others to do so, for any purpose or in manner that directly or indirectly violates applicable laws or any third party rights, including the unlawful tracking of any person.
6.2 Failure to Comply. YoPets is not liable for any failure to provide the Services in accordance with these Terms that results from Customer’s failure to comply with the obligations set out in Section 5.1. In the event Customer is in breach of sub-section (d), (e), (f), (g), and (h), and such breach materially adversely affects or the YoPets’s network, the Services or other customers’ ability to receive services from YoPets, YoPets may take all actions which it reasonably considers necessary to address that material adverse effect, including immediate suspension of the Services.
6.3 Customer Representations. The Customer represents and warrants that it:
(a) will use the Services only as provided in these Terms;
(b) has the right, power and authority to enter into these Terms and to fully perform its obligations under these Terms; and
(c) has obtained any required authorization and consent: (i) to monitor the location of the pet, vehicle, PDA or item chosen by the Customer; and (ii) to agree that YoPets may monitor, collect, use, communicate, retain and disclose Location Information as described in these Terms.
7. TERM AND TERMINATION
7.1 Term of the Agreement. This Agreement will commence on the Effective Date and continues until all Service Orders hereunder have expired or have been terminated (the “Term”).
7.2 Term of Service Orders. The term of each Service Order is specified in that Service Order (the “Service Term”). Except as otherwise noted in a Service Order, after the Service Term ends, YoPets will continue to provide the Services for the same recurring period as the Customer’s payment frequency for the Services unless the Customer enters into a new Service Order. Following the expiration of the Service Term, either party may cancel the Service upon 14 days notice. The pricing following the Service Term will remain the same, however YoPets reserves the right to increase or modify pricing on 30 days’ notice.
7.3 Termination Generally. Any termination of these Terms will automatically terminate the licences granted to the Customer and the right to use the Services.
7.4 Termination by Customer. Subject to section 7.6, the Customer may cancel the Services and terminate these Terms and any then-current Service Orders at any time by providing thirty (30) days written notice to YoPets. Notwithstanding section 7.6, YoPets will refund Customer for all Charges paid except shipping and transaction charges of $10 (as stated in the refund policy) if Customer cancels the Service Order within fourteen (14) days from the Effective Date or the Device has travelled more than 10 km, whichever occurs sooner.
7.5 Termination for Cause. Either party may terminate these Terms upon written notice to the other party, effective immediately or at such later date as specified in such notice and without any penalty, in the event that the other party commits a material breach of these Terms and such breach is not cured within ten (10) days of receiving the notice. Further, these Terms is deemed to be terminated in the event of insolvency or the institution of any insolvency, receivership or conservatorship, assignment for the benefit of creditors, bankruptcy or similar proceedings against either Party, or an order to wind up the business activities of either party.
7.6 Termination Fees. In the event that Customer terminates a Service for convenience pursuant to Section 7.4 or YoPets terminates the Service for material breach pursuant to Section 7.5 (a “Terminated Service”), the Customer shall pay YoPets all Charges due for the Terminated Service up to the date of termination, including installation charges or non-recurring charges, and an amount equal to: (a) 100% of the monthly recurring Charges for the Service, multiplied by the number of months remaining in the then current Service Term, or (b) as otherwise provided in the Service Order, as well as any applicable termination fees set out in the Service Terms (the “Termination Fees”). Customer acknowledges and agrees that the Termination Fees are liquidated damages and consideration for the Services and are not a penalty.
7.7 Post-Termination. YoPets’s right to all outstanding Charges pursuant to these Terms and related Service Orders will survive any termination or expiration of these Terms until such time as all such fees have been paid in full.
7.8 No Liability of YoPets. The termination, restriction or suspension of Services, pursuant to this Section 7, will not affect Customer’s obligation to pay for the Services rendered prior to the termination, restriction or suspension. YoPets will not be liable for any loss, damage or inconvenience suffered by Customer as a result of any termination, restriction or suspension of the Services.
7.9 Survival. The terms of these Terms, which by their nature are intended to extend beyond the term of these Terms, will survive any termination or expiration of these Terms, including Sections 3, 4, 5, 6.1, 7, 8, 10, 11, and 12.
9. SERVICE OBLIGATIONS
9.1 Disclaimer. Customer acknowledges that YoPets does not warrant: (i) uninterrupted or error-free Services; (ii) that there will not be delays, interruptions, errors, defects or failures associated with the Services, YoPets’s network or the networks of YoPets’s network service providers (including telecommunication network coverage failure, server failures or delays, network and server latency, non-availability of satellite coverage or failure of any communications link); and (iii) the content, availability, accuracy or any other aspect of any information, including data, files and all other information or content in any form, accessible or made available to or by the Customer or its Users through the use of the Services. YoPets may interrupt the Services at any time for any duration of time, without any notice or liability, in order to install, repair, replace or to perform necessary maintenance or for other technical reasons as may be required. Customer acknowledges that the Services are available to the Devices only within the operating range of YoPets in Canada and the United States and that YoPets, its affiliates and its third party vendors will not be liable to the Customer or its Users with respect to any claim or damage related to or arising out of or in connection with any coverage gap or any interruption, curtailment or other limitation provided above. YoPets makes no guarantees or warranties that the Devices and Services ordered from YoPets, including, by way of example and not limitation, medical/health alert solutions, alarm solutions or people tracking solutions, will detect, avert or prevent the occurrences of the type for which they are designed. In the event that a vehicle, pet or item is in a region with limited or no mobile network coverage, the satellite locations logged by the Device will be stored in the Device and sent to the service once network connectivity is resumed.
9.2 Limited Device Warranty. YoPets warrants that during the Warranty Period a Device will perform in accordance with the written specifications that issued with respect to the Device, subject to the limitations and conditions set forth in our specifications and these Terms, and when used in accordance with our documentation and specifications (the “Limited Warranty”). Prior to the expiration of the Warranty Period, YoPets will either repair or replace the Device or use commercially reasonable efforts to correct any material defects in software and services. YoPets reserves the right to replace any Device with a more current version or model or refurbished device units in its sole discretion. In the event that YoPets determines that a Device must be replaced, Customer will be responsible for shipping charges and applicable removal and re-installation charges. The Limited Warranty does not cover (i) problems with a Device caused by normal wear and tear; (ii) problems resulting from improper installation, maintenance, repair, or usage of a Device; (iii) problems with a Device resulting from external causes such as accident, abuse, misuse, mishandling, collision, alteration, negligence, fire, theft, loss, vandalism, riot, explosion and natural disasters; (iv) problems resulting from any change of technology, law or regulation that renders a Device obsolete or incompatible with existing telecommunications services. Further, YoPets is not responsible for any problems or technical malfunctions of any Devices, vehicles or connected components, including any injury to users, pets and or owners or any persons and damage to vehicles. To the maximum extent permitted by Applicable Law, the foregoing constitutes YoPets’ sole and exclusive remedy and our sole and exclusive obligation for any breach of the foregoing warranty.
9.3 Waiver. THE WARRANTIES PROVIDED IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES AND CONDITIONS. THE CUSTOMER WAIVES AND YOPETS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AVAILABILITY OR RELIABILITY OF THE SERVICES.
10. LIMITATION OF LIABILITY
10.1 LIMITATION OF LIABILITY. YOPETS NOR ITS AFFILIATES WILL BE LIABLE TO CUSTOMER, USER OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, SPECIAL, PUNITIVE DAMAGES, OR FOR ANY DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF PROFITS OR BUSINESS, LOST REVENUE OR LOSS OF OR DAMAGE TO DATA, FAILURE TO REALIZE EXPECTED SAVINGS, COMPETITIVE ADVANTAGE OR GOODWILL OR ANY COMMERCIAL OR ECONOMIC LOSS OF ANY KIND OR NATURE WHATSOEVER, REGARDLESS OF THE FORESEEABILITY THEREOF OR EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THE PROVISION OF SERVICE OR IN ANY WAY ARISING OUT OF THIS AGREEMENT. THE CUSTOMER’S EXCLUSIVE REMEDY AND YOPETS’S TOTAL LIABILITY, IF ANY, FOR DAMAGES FOR ANY CAUSE WHATSOEVER, WILL BE NO MORE THAN OR THE CHARGES PAID BY CLIENT FOR THE DEVICE OR THREE (3) MONTHS OF SERVICE CHARGES PRECEDING THE EVENT ALLEGED TO HAVE CAUSED THE DAMAGES, WHICHEVER IS LESS.
10.2 Fundamental Breach. Section 10 of these Terms will apply even if there is a breach of condition, a breach of essential or fundamental term, or a fundamental breach of these Terms.
10.3 Limitations Fair and Reasonable. Customer agrees that the limitations of liability set out in this Section are fair and reasonable in the commercial circumstances of these Terms and that YoPets will not have entered into these Terms but for the agreement to limit YoPets’s liability in the manner and to the extent provided for in these Terms.
10.4 Indemnity. In addition to any other indemnities contained in these Terms, Customer shall indemnify and defend YoPets, and YoPets’s Affiliates, and each of their shareholders, directors, officers, employees, agents, underlying providers, contractors and licensors from and against all claims, losses, expenses, damages and costs, including reasonable legal fees, resulting from any action, inaction or breach of these Terms by Customer or other Users.
11. GENERAL PROVISIONS
11.1 Headings. The headings in these Terms are for the convenience of the parties only, and are in no way intended to define or limit the scope or interpretation of the Agreement or any provision hereof.
11.2 Relationship of Parties. Nothing in these Terms will be construed as establishing or implying any partnership or agency between the parties.
11.3 Entire Agreement. These Terms and all documents and agreements referenced in or to be delivered pursuant to these Terms constitutes the entire agreement between the parties, and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of these Terms. Customer’s additional or different terms and conditions will not apply. Except as expressly provided in these Terms for documents that YoPets may amend from time to time, the terms and conditions of these Terms may not be changed except by an amendment signed by an authorized representative of each party.
11.4 Remedies Not Exclusive. Except for those remedies that are expressly stated to be sole remedies, the remedies provided to the parties under these Terms are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which any of the parties is entitled to seek at law, in equity or by statute.
11.5 Assignment. YoPets may assign or transfer its agreement with the Customer pursuant to these Terms at any time without Customer’s consent. Customer shall not assign its agreement pursuant to these Terms or or assign, transfer or delegate Customer’s rights or obligations under these TOS. Any purported assignment, transfer or delegation in violation of this provision is void from the outset. This Agreement will ensure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
11.6 Force Majeure Event. If and to the extent that a party’s performance of any of its obligations pursuant to these Terms is prevented, hindered or delayed by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; war, riots, civil disorders, sabotage, terrorism or other violence; embargo, epidemic or quarantine restrictions; strikes or other employment disputes of either party’s or subcontractor’s personnel; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; power outages; acts or omissions of third party telecommunications carriers or any part of the public Internet; inability on account of a cause beyond the party’s reasonable control to obtain necessary materials, components, services or facilities, or any other cause beyond the reasonable control of a party (in each case, a “Force Majeure Event”), then the non-performing, hindered or delayed party will be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such party continues to use its reasonable commercial efforts to re-commence performance whenever and to whatever extent possible, including through the use of alternate sources, workaround plans or other means. This Section will not apply to any failure to make any payment when due.
11.7 No Waiver. Neither party’s failure to exercise any of its rights under this agreement will constitute or be deemed to constitute a waiver or forfeiture of such rights.
11.8 Invalidity of Particular Provision. If any term or provision of these Terms is held to be illegal or unenforceable, the validity or enforceability of the remainder of these Terms will not be affected.
11.9 Governing Law and Attornment. This Agreement is made under and will be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to choice of law rules that would apply a different body of law. Any legal suit, action or proceeding must be brought solely and exclusively in the Province of Ontario.
11.10 Currency. Unless otherwise specified in a Service Order, all dollar amounts referred to in these Terms are expressed in Canadian dollars.
11.11 Further Assurances. Each of the parties will promptly execute and deliver to the other at the cost of the other such further documents and assurances and take such further actions as the other may from time to time request in order to more effectively carry out the intent and purpose of these Terms and to establish and protect the rights, interests and remedies intended to be created in favour of the other.
11.12 Language of these Terms. It is the express wish of the parties that these Terms and all related documents be 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.