THESE TERMS CONTAIN IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICE (AS HEREINAFTER DEFINED) SO YOU SHOULD READ THEM CAREFULLY BEFORE USING THE SERVICE. BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE TERMS OR BY COUNTERSIGNING A QUOTE (AS HEREINAFTER DEFINED) THAT REFERENCES THESE TERMS, OR BY USING THE SERVICE, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE SERVICE. THESE TERMS MAY BE AMENDED OR UPDATED BY ETHOR FROM TIME TO TIME WITHOUT NOTICE AND THESE TERMS MAY HAVE CHANGED SINCE YOUR LAST USE OF THE SERVICE. IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS FOR ANY CHANGES. YOUR USE OF THE SERVICE AFTER ANY AMENDMENTS OR UPDATES TO THESE TERMS SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF SUCH REVISED TERMS AND SUCH REVISED TERMS AND SHALL APPLY TO YOUR USE OF THE SERVICE AFTER THE DATE OF SUCH AMENDMENTS OR UPDATES. ANY NEW FEATURES THAT MAY BE ADDED TO THE SERVICE FROM TIME TO TIME WILL BE SUBJECT TO THESE TERMS UNLESS STATED OTHERWISE ON THE ETHOR WEBSITE. YOU SHOULD VISIT THE ETHOR WEBSITE PERIODICALLY TO REVIEW THESE TERMS.
IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF AN ENTIY OR ORGANIZATION, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE ALL NECESSARY PERMISSIONS AND AUTHORITY TO AGREE TO THESE TERMS AND TO BIND SUCH ENTITY OR ORGANIZATION TO THESE TERMS.
For the purposes of these Terms, in addition to the capitalized terms defined elsewhere in these Terms, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of these Terms, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Anonymous Service Data” means any and all data and information that is not personal information (including because it has been de-identified, aggregated or made anonymous by eThor) created by eThor through the operation of the Service;
“Deliverable” means any software, studies, documentation and/or other materials prepared by eThor for You as described in An Order or SOW for Professional Services;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Order” means any online order for the purchase of a subscription or subscriptions for the Service or for the purchase of Professional Services that has been submitted by You using the electronic order forms provided by eThor on the eThor website;
“Professional Services” means professional services to be provided by eThor to You for the training, implementation services, development support, custom development and other services, all as described in an Order and/or SOW;
“Quote” means a quotation document provided to You by eThor in respect to Your purchase of a subscription or subscriptions for the Service;
“Service” means eThor’s mobile application for point-of-sale devices used by merchants in processing orders and payment;
“Service Compatible Application(s)” means an application that has been developed using the Service APIs by or You or by a third party authorized by You to develop such an application for You;
“Service Tier(s)” means the various categories of Service (which will specify the number of permitted Users) access provided by eThor to customers depending on the type of Subscription that has been purchased by such customers, as such categories of Service access may be updated by eThor from time to time;
“Statement of Work” or “SOW” means a statement of work for Professional Services and/or related Deliverables that is executed by the parties, including training, implementation services, development support, custom development and other services;
“Subscription Fee” means the monthly, annual or multi-year fees payable by You to eThor for the right to receive access to the Service;
“Subscription Term” means an initial subscription term for the Service and any renewal periods for the Service as specified in Your Quote(s) and/or Order(s);
“Term” has the meaning ascribed to that term in Section 10.1;
“User” means an individual or entity who is authorized by You to use the Service on Your behalf, whether or not the individual has been supplied a user account and password for the Service by You (or by eThor at Your request);
“You” means the person or entity identified by eThor in a Quote issued by eThor or the person or entity identified in an Order submitted to eThor and accepted by eThor and “Your” shall have a correlated meaning. “You” includes any of Your Affiliates;
“Your Content” means any and all content, postings, information, data and/or other materials that You and/or Your Users submit to the community forums or other discussion areas provided by the Service; and
“Your Data” means all electronic data or information submitted by You and/or Your Users to the Service.
- Grant of License.
- Commercial License Grant. Subject to these Terms, including payment of all applicable Subscription Fees, eThor grants You a limited, personal, non-transferable, non-sub-licensable, internal license to use the Service during the Subscription Term in accordance with the Service Tier (including, without limitation, the permitted number of Users) for which You have subscribed, such Subscription Term and Service Tier as set forth in Your then-current Quote(s) and/or Order(s). The right to use the Service is licensed, not sold.
- Evaluation License Grant. If You register for a free trial of the Service, then, subject to these Terms, eThor grants You a limited, personal, non-transferable, non-sub-licensable, internal license to use the Service for non-production, evaluation purposes during the applicable Trial Period. For the purposes of these Terms, “Trial Period” means the time starting from Your registration to use a free trial of the Service until the earlier of (i) the end of the free trial period for which You registered (which trial period shall be thirty (30) days unless otherwise stated on the registration page for the free trial version of the Service), or (ii) the start date of any paid subscription for the Service ordered by You. You will not be entitled to receive any support from eThor for Your use of a free, trial subscription for the Service. eThor may terminate the Trial Period for any free trial of the Service at any time in eThor’s sole discretion and may accept or decline any request for a free trial version of the Service in eThor’s sole discretion. ANY DATA YOU ENTER INTO THE FREE TRIAL VERSION OF THE SERVICE AND ANY CUSTOMIZATIONS YOUR MAKE TO THE FREE TRIAL VERSION OF THE SERVICE WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A PAID SUBSCRIPTION TO THE SERVICE. YOUR DATA CANNOT BE EXPORTED FROM THE FREE TRIAL VERSION OF THE SERVICE. NOTWITHSTANDING ANY OTHER PROVISIONS IN THESE TERMS, ACCESS TO THE FREE TRIAL VERSION OF THE SERVICE IS ON AN “AS-IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND. Additional terms and conditions applicable to the free trial version of the Service may appear on the applicable registration page. Any such additional terms and conditions are incorporated into these Terms by reference.
2.3 User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
- Your Content. The Service includes community forums or other discussion areas where You may post or otherwise make Your Content available to other customers of eThor who are using the Service. You acknowledge and agree that Your Content when submitted to the community forums or other discussion areas of the Service will not be confidential. You are solely responsible for Your Content. You shall not use the community forums or other discussion areas provided by the Service to send any messages that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially or ethnically objectionable, that encourage criminal behavior, infringe intellectual property or other property or personal rights (including privacy and publicity rights), give rise to civil liability, violate any law, or are otherwise objectionable. eThor has the right (but will have no obligation) to remove or refuse to distribute any of Your Content and to terminate Your User accounts that have violated any of the provisions of these Terms relating to Your Content. eThor shall also have the right to access, read, preserve and disclose any information that eThor reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms, including investigation of potential violations of these Terms, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Service users.
- Third-Party Services. You acknowledge and agree that the Service may present links to third-party websites or third-party products or services not owned or operated by eThor that present service offerings, advertisements, promotional materials or product offers from such third parties. eThor is not responsible for the availability of these third-party websites or third-party services or any other products or services that may be offered via such websites and/or services. Your dealings with any third-party or purchase of any third-party products or services that You may have become aware of through the Service are solely between You and such third party and the terms and conditions governing such dealing, products or services are those that You agreed with the applicable third party and eThor is not a party to any such terms or conditions. You agree that eThor is not responsible or liable for any loss or damage of any type incurred by You as the result of any dealings with any third parties or as the result of the presentation of such third parties or their products and/or services via the Service.
- Your Affiliates. Your Affiliates may use the Service subject to these Terms. You shall cause each of Your Affiliates to comply with these Terms to the full extent as if such Affiliate were a party hereto, and any act or omission relating to these Terms by any such Affiliate shall be deemed an act or omission by You. In addition, each party may use one or more Affiliates to perform its obligations under these Terms, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to these Terms shall be deemed an act or omission of such party.
- Use of the Service.
3.1 eThor Responsibilities. eThor shall use commercially reasonable efforts to make the Service available in accordance except for (a) planned downtime, or (b) any unavailability caused by circumstances beyond eThor’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems or Internet service provider failures or delays. eThor shall also provide support to You for the Service in accordance the Service Tier and/or a Service Level Agreement purchased by You.
3.2 Your Responsibilities. You are responsible for all activities that occur in User accounts and for Users’ compliance with these Terms. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of Your Data and all of Your Content; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify eThor promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service; and (iv) be responsible for any Service Compatible Applications developed or purchased by You.
3.3 Use Guidelines. You shall not: (i) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iii) use the Service to send or store Malicious Code; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3.4 Service Changes. eThor may change the Service at any time upon reasonable notice to You by posting the changes on the eThor website; sending You notice via an email to the email address You provide on Service registration; placing a message on Your invoice; in writing; by electronic communication; or any other notice method likely to come to Your attention. If You do not accept the change, Your sole recourse is to terminate Your subscription to the Service. Your continued access to and use of the Service after the change has come into effect constitutes Your acceptance of the change. If You terminate Your subscription to the Service due to a change in the Service, You will not be entitled to any refunds.
3.5 Professional Services. You may order certain standard Professional Service offerings (such as training) from eThor for the prices set forth on the eThor website by submitting an Order to eThor specifying the quantity of such standard Professional Services You wish to procure. You may order custom Professional Services (such as custom development) from eThor at the rates set forth on the eThor website by submitting an Order to eThor describing the custom Professional Services You wish to procure. If You submit an Order for Professional Services, such Order shall not be binding upon eThor unless accepted by eThor. eThor will use commercially reasonable efforts to respond to Orders submitted by You for Professional Services within five (5) business days following receipt thereof by eThor. If eThor does not respond to an Order for Professional Services prior to the end of five (5) business days following receipt thereof by eThor then such Order shall be deemed to have been rejected by eThor. Once an Order for standard Professional Services has been accepted by eThor, eThor will provide such standard Professional Services in accordance with a timeframe mutually agreed by the parties