Terms of Use

TYNT INSIGHT USAGE AGREEMENT

IMPORTANT – PLEASE READ CAREFULLY.  This Tynt Insight Usage Agreement (the “Agreement”) is between yourself and any entity identified in the enrollment or sign-up form to which the Services (as defined below) are undertaken (“You” or “User”) and TYNT MULTIMEDIA INC. (”Tynt”).   If you do not agree to the terms of this Agreement, Tynt is unwilling to provide the Services to You.

The Services and This Agreement
1.1 The User agrees that the use of Tynt software, including, but not limited to: the use of “Insight” products; access to statistics generated by Tynt, its agents, subsidiaries or designates; incorporation of code within the User’s websites, forums, or mediated functionality (individually and collectively deemed the “Services”) are covered by this Agreement (the “Agreement”).
Provision of the Services
2.1 The User agrees that Tynt may use subsidiaries, agents, or third-parties located within Canada or anywhere in the world, to provide the Services.

2.2 The User agrees that the provision of the Services, their extent, functionality, form and nature may change at the sole and exclusive discretion of Tynt, all without prior notice to User.

2.3 User may stop using the Services at any time and does not need to provide notice to Tynt.

2.4 The User understands and agrees that the termination of the Services, or changes to the extent, functionality, form or nature of the Services, may result in loss of information which may include account details or other information the User has provided.  The User agrees to hold Tynt harmless for any harm arising directly or indirectly from the loss of information contemplated herein or for the termination of Services.

2.5 The User agrees that Tynt may unilaterally edit, modify or delete information or content provided as part of the Services.
Use of the Services
3.1 The User agrees to use the Services addressed by this Agreement in ways, and for purposes, allowed by this Agreement and all applicable laws, or regulations in relevant jurisdictions (including any laws regarding the export of data or software to and from relevant countries).  The User agrees that it will not directly or indirectly engage in any activity that interferes with, or disrupts, the provision of the Services.

3.2 The User agrees not to sell, provide, duplicate or otherwise make available the Services to anyone for any purpose other than for User’s own internal purposes.  The User agrees that any use of the Services or breach of the terms of the Agreement is the User’s sole responsibility; including any resulting consequences such as damages or harm Tynt may suffer due to User’s failure to abide by the Terms of This Agreement.   TYNT EXPLICITLY DISCLAIMS LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM THE USER, ITS AGENTS, EMPLOYEES, OFFICERS, OR DIRECTORS.

3.3 The User agrees not to access (or attempt to access), without Tynt’s prior written consent, any of the Services by any means other than through the interface that is provided by Tynt, including, but not limited to, not accessing (or attempting to access) any of the Services through any automated means.

3.4 The User agrees not to: restrict, discourage or inhibit any person from using the Services; disclose personal information of others through the Services or obtained through the Services; collect information about users of the Services other than through the means provided for by Tynt; reverse engineer, disassemble or decompile any section or technology of or in the Services; or gain unauthorized access to the Services, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Services.

3.5 The User agrees not to, with respect to the Services: a) launch or use any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that access the Services in a manner that sends more request messages to Tynt’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser; b) send or otherwise transmit to or through the Servicesso-called “spamming” or “phishing” messages; c) post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment or violate any applicable laws or regulations; or d) assist or permit any persons in engaging in any of the activities described above.

Intellectual Property Rights

4.1 User acknowledges and agrees that Tynt owns all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). The User further acknowledges that the Services may contain information which is designated confidential by Tynt and that the User shall not disclose such information without Tynt’s prior written consent. User agrees that data generated in performance of the Services is the sole and exclusive property of Tynt, its users or its licensors with all rights reserved.

4.2 Tynt grants to the User a limited license to access and use the Services and to download or print a copy of any portion of the Services to which it has properly gained access solely for its own internal purposes, provided that all copyright or other proprietary notices are maintained intact. Such license is subject to this Agreement and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. User recognizes that aspects of the Services are subject to patents pending, and in consideration for access to the Services, the User agrees for the term of this Agreement and for two (2) years following, not to undertake any activities which, nor to procure the services of parties who, infringe any patents of Tynt or its subsidiaries; or any published applications and their claims as on file with the relevant patent office for the jurisdiction of operations for the User.

4.3 Any use of the Services by User other than as specifically authorized herein, without the prior written permission of Tynt, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable by Tynt at any time without notice and with or without cause.

4.4 The User acknowledges and agrees that when it incorporates code provided by Tynt into its online content, necessary for use of part or all of the Services (the “Content”), it authorizes and directs Tynt or its agents to make such copies of Content as it deems necessary in order to facilitate the provision of the Services.

4.5 Subject to the license contemplated herein, Tynt acknowledges and agrees that the User owns all legal right, title and interest in and to all Content, including any intellectual property rights or other proprietary rights associated with the Content.

4.6 Other than the limited license set forth herein, Tynt acknowledges and agrees that it obtains no right, title or interest from the User (or the User’s licensors) under this Agreement in or to any Content.  The User agrees that it is responsible for protecting and enforcing any rights associated with the Content and that Tynt has no obligation to do so on the User’s behalf.

4.7 The User agrees that, without any additional compensation to the User from Tynt, Tynt shall have the sole right to use, and shall own, any information, concepts, ideas and understandings provided by the User to Tynt in the form of feedback or suggestions with respect to the Services.

License to Use

5.1 Tynt grants to User a personal, worldwide, royalty-free, non-assignable and non-exclusive license during the term of this Agreement to use the software forming part of the Services, if any, provided by Tynt as part of the Services (“Software”). This licence is for the sole purpose of enabling the User to use and enjoy the benefit of the Services as provided by Tynt in the manner permitted by this Agreement.

5.2 The User agrees not to (and not to permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless the user has been authorized by Tynt in writing.

5.3 The User may not assign (or grant a sub-licence of) its rights to use the Software, grant a security interest in or over User’s rights to use the Software, or otherwise transfer any part of its rights to use the Software.

Termination

6.1 The terms of the Agreement will continue to apply until terminated by either the User or Tynt, as contemplated herein.  The User or Tynt may terminate this agreement immediately for any reason upon providing notice to the other party.  Upon termination, all of the legal rights, obligations and liabilities that have accrued to User and Tynt which are expressed, contemplated or by their nature must continue indefinitely, shall be unaffected by this termination.

EXCLUSION OF WARRANTIES AND LIMITATIONS OF LIABILITY

7.1 NOTHING IN THESE TERMS, INCLUDING THIS SECTION 7, SHALL EXCLUDE OR LIMIT TYNT’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR LIMITATION OR EXCLUSION OF LIABILITIES ARISING FROM CERTAIN LOSSES, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN THE USER’S JURISDICTION WILL APPLY TO THE USER AND TYNT LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

THE USER EXPRESSLY UNDERSTANDS AND AGREES THAT ITS USE OF THE SERVICES IS AT ITS SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT USER’S DISCRETION AND RISK AND THE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM TYNT OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

TYNT FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.2 IN PARTICULAR, TYNT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO USER THAT:

(i) USE OF THE SERVICES WILL MEET THE USER’S REQUIREMENTS,

(ii) USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,

(iii) ANY INFORMATION OBTAINED BY USER AS A RESULT OF ITS USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND

(iv) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO USER AS PART OF THE SERVICES WILL BE CORRECTED.

7.3 IN NO EVENT WILL EITHER PARTY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM USER’S USE OF TYNT’S WEB BASED INTERFACE, SOFTWARE, THE SERVICE, ANY PLATFORM APPLICATIONS OR ANY OF WEB BASED INTERFACE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM WEB BASED INTERFACE, EVEN IF SUCH PARTY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SUBJECT TO APPROPRIATE INJUNCTIVE RELIEF, EACH PARTY’S LIABILITY TO THE OTHER PARTY FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY USER TO TYNT FOR THE SERVICE DURING THE TERM, BUT IN NO CASE WILL THE EITHER PARTY’S LIABILITY TO THE USER EXCEED $200. EACH PARTY ACKNOWLEDGES THAT IF NO FEES ARE PAID TO TYNT FOR THE SERVICE, EACH PARTY USER SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM THE OTHER PARTY, REGARDLESS OF THE CAUSE OF ACTION. EACH PARTY ACKNOWLEDGES THAT CERTAIN REGIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO ONE OF THE PARTIES, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO SUCH PARTY, AND IT MAY HAVE ADDITIONAL RIGHTS.

7.4 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 7.1 ABOVE, THE USER EXPRESSLY UNDERSTANDS AND AGREES THAT TYNT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO THE USER FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY IT, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:

(a) ANY CHANGES WHICH TYNT MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);

(b) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH ITS USE OF THE SERVICES;

(c) THE USER’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;

7.5 THE LIMITATIONS ON TYNT’S LIABILITY TO THE USER IN PARAGRAPH 7.4 ABOVE SHALL APPLY WHETHER OR NOT TYNT HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

Privacy and Personal Information

8.1 Information on Tynt’s personal information protection polices and practise can be found at the Tynt website, www.tynt.com.  The User agrees that these policies apply to this Agreement, the provision of Services, and the information the User provides through use of the Services.

Indemnification

9.1 The User agrees to indemnify, defend and hold Tynt and its directors, officers, employees, agents and contractors harmless from and against any and all claims, damages, losses, costs (including, without limitation, reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from User’s breach of any representation, warranty or any other provision of the terms of this Agreement.

9.2 Tynt agrees to indemnify, defend and hold User and its directors, officers, employees, agents and contractors harmless from and against any and all third-party claims, damages, losses, costs (including, without limitation, reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from (i) Tynt’s breach of any representation, warranty or any other provision of the terms of this Agreement or (ii) any infringement or alleged infringement of the Services or the Software of any patent, copyright, trade secret or any other intellectual property rights.

Entire Agreement

10.1 This Agreement contains the complete agreement concerning the access, use and provision of the Services between the parties and shall, as of the date hereof, supersede all other oral agreements or arrangements between the parties with regard to the subject matter hereof.  Notwithstanding, should the parties have entered into a fully executed written agreement, where the terms of said written agreement conflict with this Agreement, the terms of the written agreement shall prevail.

Binding Agreement.

10.2 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.

Modification.

10.3 No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by both parties, and no evidence of any waiver or modification shall be offered or received in evidence of any proceeding, arbitration, or litigation between the parties hereto arising out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid.

Severability.

10.4 All agreements and covenants contained herein are severable, and in the event any of them shall be held to be invalid or unenforceable by any court of competent jurisdiction, this Agreement shall be interpreted as if such invalid agreements or covenants were not contained herein.

Manner of Giving Notice.

10.5 You may notify Tynt by mail or courier provided to the following:

TYNT MULTIMEDIA INC.,
1214C - 9th Ave SE
Calgary, AB
T2G 0T1

Tynt does not accept, and you agree you shall not provide, e-mail notices.

As this Agreement is in electronic form, you agree that Tynt may provide to you certain information in connection with the Services, the Agreement or other information that by law or regulation Tynt may choose or be required to send to You.  You consent to this information may being provided to you in electronic form; and though You may withdraw this consent, You understand that Tynt may terminate this Agreement and the provision of Services should you do so.  Tynt may provide the information referenced herein either by email sent to the email address You provided in association with the Service, or by conspicuous display in association with the Services provided to You.  You agree that notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail; and notices provided by conspicuous display with the Services shall be deemed given to you 48 hours after their being made available with the Services.

Remedies.

10.6 In the event of a breach of this Agreement, the nonbreaching party shall be entitled to such legal and equitable relief as may be provided by law, and shall further be entitled to recover all costs and expenses, including reasonable attorney’s fees, incurred in enforcing his rights hereunder.

Captions.

10.7 The captions have been inserted for convenience only and shall not be deemed to limit or otherwise affect any of the provisions of this Agreement.

Choice of Law.

10.8 It is the intention of the parties hereto that this Agreement and the performance hereunder be construed in accordance with, under and pursuant to the laws of the Province of Alberta  without regard to the jurisdiction in which any action or special proceeding may be instituted.

Promotion.

10.9 Tynt agrees it will not, without prior written approval of the User in each instance (a) make any use, including without limitation in advertising, publicity, promotional materials or otherwise, of the name of the User, or the parent or any affiliate of the User, or any partner or employee of the User, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by the User or its parent or affiliates (the “User Trademarks”); (b) make any public statements or issue press releases or similar announcements about this Agreement or its Services; or (c) represent, directly or indirectly, that any product or any service provided by Tynt has been used, approved or endorsed by the User.  Notwithstanding the foregoing, Tynt may use the name of and identify as a client the User solely in the context of a list of User clients but not any more prominently than any other client in such list publicly or privately as part of Tynt’s sales and marketing efforts.