Terms of Service
These Terms of Service are effective as of August 2023.
The following terms of service (“Agreement”) is a legally binding agreement between Retentacle Inc. (“Retentacle”, “Our”, “Us”, or “We”) and you (“You” or “Your”) and applies to: (i) Your use of the Retentacle.com website and all other websites owned and operated by Retentacle that redirect to Retentacle.com and all subdomains of Retentacle.com (collectively, the “Website”); (ii) all Retentacle branded mobile applications and services (“Mobile Apps”); (iii) the password protected areas of the Website or Mobile Apps that allow You to access use Our receipt storage service (the “Platform Service”); and (iv) any other features, content, or applications offered or operated from time to time by Retentacle in connection with the Platform Service or the Retentacle brand, including, but not limited to, when Retentacle Platform is accessed via the internet, mobile or other device (collectively, “Services”, and each is a “Service”).
This Agreement applies to use of all Services regardless of the type of computer, mobile or other device (“Device”) used to access them, unless a particular Service has a different terms of use, terms of service or agreement, in which case that agreement (“Other Terms”) shall instead govern.
IMPORTANT – YOU MUST BE AT LEAST 18 YEARS OLD TO USE ANY OF THE SERVICES. IF YOU ARE UNDER THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE, YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN READ THE AGREEMENT BELOW AND AGREE TO IT FOR YOU. IF YOU DO NOT GET YOUR PARENT OR GUARDIAN TO READ AND AGREE TO THIS AGREEMENT, THEN YOU DO NOT HAVE PERMISSION TO USE ANY OF THE SERVICES.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICES. BY ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT (OR IF APPLICABLE, THE OTHER TERMS), WHETHER YOU ARE A “VISITOR” (WHICH MEANS THAT YOU SIMPLY BROWSE THE SERVICES OR OTHERWISE USE ANY OF THE SERVICES WITHOUT BEING REGISTERED) OR YOU ARE A “REGISTERED USER” (WHICH MEANS THAT YOU HAVE REGISTERED FOR AN ACCOUNT).
IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT, AND YOU MUST NOT, ACCESS OR USE ANY OF THE SERVICES.
1. Scope of this Agreement. You are authorized to use the Services (regardless of whether Your access or use is intended) only if You agree to abide by all applicable laws, rules and regulations (“Applicable Law”) and the terms of this Agreement. In some instances, both this Agreement and separate guidelines, policies rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to Your use of the Services or to a service or product offered via the Services (in each such instance, and collectively, “Additional Terms”). To the extent there is a conflict between this Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Please also review the terms of the Privacy Policy (as defined below), which You accept by using the Services.
2. Modification of this Agreement. Retentacle, in its sole and absolute discretion, may change this Agreement and any of the Other Terms or Additional Terms. If We do this, We will post the changes to at least thirty (30) days before the modification comes into effect, and will indicate at the top of the modified document the date these that document were last modified. You may refuse the modification and rescind or stop using the Services and terminate Your Account at any time (You may terminate Your Account by using the Account deactivation or cancelation functionality made available through the Services). You acknowledge and agree that: (i) Retentacle may, at its discretion, notify You of such changes by posting them to the Website or the Services; and (ii) Your accessing or use of any of the Services, including, but not limited to, logging in to Your Account (as defined below) or Your accessing the Website or using the Mobile App, after such changes or modifications have been made and are effective (as indicated by the effective date noted at the top of this page) shall constitute Your acceptance of this Agreement as last revised. If You do not agree to such amended Agreement, then (i) You must immediately stop using all of the Services; and (ii) if You have an Account, You must immediately terminate Your Account.
3. Eligibility. Retentacle makes no representation that the Services are appropriate for use in locations other than Canada. You are solely responsible for compliance with all Applicable Laws, including, but not limited to, export and import regulations. Any diversion of the Services contrary to any Applicable Law is prohibited. Retentacle is under no obligation to accept any individual as a Registered User and may accept or reject any registration in its sole and complete discretion.
4. Privacy. You acknowledge and agree that any and all uses of the Services are further subject to Our privacy policy, which is located at http://retentacle.com/privacy-policy/ (“Privacy Policy”). The Privacy Policy provides Your rights and Our responsibilities with regard to Our collection, storage, use and disclosure of personal information. You hereby consent to Our collection, storage, use and disclosure of personal information in accordance with the Privacy Policy. The Privacy Policy may be updated from time to time at Our discretion. Changes to the Privacy Policy will be effective when We post the changes to the Website or the Services or as otherwise provided for in the Privacy Policy.
5. Modification and Availability of the Services; and Updates.
o 5.1 Modification and Availability of the Services. We reserve the right to do any of the following, at any time, at Our sole discretion, with or without notice: (i) modify, suspend, or terminate operation of or Your access to the Services, or any portion of the Services, for any reason; or (ii) interrupt the regular operation of the Services, or any portion of the Services, as necessary to perform routine or non-routine maintenance, to correct errors, or to make other changes to the Services. You agree that We will not be liable to You or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
o 5.2 Updates. The Services are evolving. If We upgrade, update or modify the Services (including, but not limited to, bug fixes, patches and new versions provided to You, the “Modifications”), You may be required to promptly install and use the Modifications for You to be able to continue to access and use the Services. Retentacle is under no obligation to make Modifications. You acknowledge and agree that Retentacle may make Modifications with or without notifying You. Certain features and/or functions of the Services are designed to work with a number of third party mobile applications and other applications, however, the continued compatibility of those Services with a specific application is partially dependent on that third party. In order to maintain compatibility You may need to update the Services from time-to-time and/or You may need to update third party, to ensure compatibility. Retentacle cannot promise that all currently supported third party applications will always be compatible with the Services.
6. Rights to Use the Services.
o 6.1 Access to the Services. Subject to the terms set forth in this Agreement, We grant You a non-transferable, non-exclusive, revocable license to: (i) access and use the Services for Your personal non-commercial use; and (ii) download, install and use one copy of Mobile App on each mobile Device that natively executes an operating system supported by Retentacle, and that You own or control (a “Permitted Device”) for Your personal non-commercial use. You may not use the Services for commercial purposes or in any way that is unlawful, or harms Us or any other person or entity.
o 6.2 Restrictions on Use. You shall not use the Services (whether in whole or in part) in any fashion except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, You shall not and shall permit, authorize or assist any third party to, directly or indirectly, do any of the following acts:
(a) use any of the Services in any manner or for any purpose other than as expressly permitted by this Agreement, Other Terms or Additional Terms;
(b) license, sell, rent, lease, reproduce, resell, transfer, assign, distribute host or otherwise commercially exploit the Services or any portion of the Services;
(c) conduct or promote any illegal activities while using the Services;
(d) upload, distribute or print any content, including, but not limited to, Your Data, to the Services that is or may be harmful to others;
(e) upload or make available any of Your Data that violates the rights of any third party, including, but not limited to, any third party’s intellectual property or privacy rights;
(f) sell, reproduce, modify or attempt to modify the Services in any way;
(g) reverse engineer, disassemble or decompile any of the services, including, but not limited to, the Website, the Platform Service or Mobile Apps or any software or other products or processes accessible through the Services, or attempt to discover or recreate the source code used to provide or access any of the Services, including, but not limited to, the Website, Platform Service or Mobile Apps;
(h) impersonate or misrepresent Yourself as another person, a Retentacle employee, or a civic or government leader, or otherwise misrepresent Your affiliation with a person or entity (including, but not limited to, creation of additional Accounts after termination by Us for violation of this Agreement or Additional Terms);
(i) engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;
(j) post, send, transmit or otherwise make available any unsolicited or unauthorized email messages, advertising, promotional materials, junk mail, spam, or chain letters, including, but not limited to, bulk commercial advertising and informational announcements;
(k) upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Services (or any part thereof), or any other computer software or hardware;
(l) interfere with or disrupt the Services (including, but not limited to, accessing the Services through any automated means, like scripts or web crawlers), or any servers or networks connected to the Services, or any policies, requirements or regulations of networks connected to the Services (including, but not limited to, any unauthorized access to, use or monitoring of data or traffic thereon);
(m) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to You with respect to the Services to any third party;
(n) cause, in Retentacle’s sole discretion, inordinate burden on the Services or Retentacle’s system resources or capacity;
(o) access or use the Services in order to build a competitive product or service or copy any features or functions of any of the Services;
(p) circumvent, remove, alter, deactivate, degrade or thwart any of any security technology or software that is part of the Services (or otherwise attempt to do so or encourage or assist any other party to do so);
(q) accessing or using the Services in a way that uses technology or other means to access, index, re-render, frame, mirror, truncate, add to, inject, filter or link to the Services that is not authorized by Us (including, but not limited to, by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized use, download, linking, framing, reproduction, access to, or distribution of the Services); or
(r) violate any Applicable Law.
You acknowledge and additionally agree that We reserve the right to stop any conduct that restricts or inhibits other users of the Services from fully utilizing and enjoying the Services.
o 6.3 Receipt Storage. The Platform Service is designed to streamline the retention of Your receipts. The Platform Service enables You to use Your Device to upload pictures of Your paper receipts and store their digital representations. The information contained in the digital representation of Your receipts may also include Your name, portions of Your payment card account numbers, description of the good and services, and the location of the merchant. Although merchants are required to mask full credit and debit card numbers in the receipt, to enhance the security of Your transaction information, You should review Your paper receipts before You upload them to the Services to ensure that such information is masked. You acknowledge and agree that all transactions facilitated using the Services, including, but not limited to, the Platform Service, will be strictly between the You and the applicable merchant with whom You are dealing and while Retentacle will assist in the delivery and storage of digital transaction records that may be issued by the applicable merchant, Retentacle is not a participant in Your transaction. The preceding sentence will survive the termination or expiration of this Agreement.
7. Intellectual Property Ownership of the Services and Reservation of Rights. All trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights in or related to the Services are and will remain the exclusive property of Retentacle or its licensors, whether or not specifically recognized or perfected under local law. You will not acquire any rights in the Services except the limited use right specified in Section 1. The Services are proprietary to Retentacle and/or its licensors. You agree to take adequate steps to protect the Services from unauthorized disclosure or use.
8. Accounts. In order to use the password protected areas of the Services, including, but not limited to, the Platform Service, You will be required to open an account with Retentacle (“Account”) and provide certain information about You as prompted by the registration form. You represent and warrant that: (i) You are at least the age of majority in the jurisdiction in which You reside (or, if You are not at least the age of majority in the jurisdiction in which You reside, You have obtained Your parent or legal guardian’s permission to use the Services and Your parent or legal guardian has read and agrees to this Agreement on Your behalf); (ii) all required registration information You submit is truthful and accurate; and (iii) You will maintain the accuracy of such information; and (iv) Your use of the Services does not violate this Agreement (including, but not limited to, Section 6.2). You may terminate Your Account at any time, for any reason, by using the Account deactivation or cancelation functionality made available through the Services. We may suspend or terminate Your Account in accordance with Section 19. You are solely responsible for selecting an appropriate username and for all disclosures You make of Your username to others, including, but not limited to, any selection or disclosure that makes You personally identifiable. You are responsible for maintaining the confidentiality of Your Account username and password (“Login Information”) and are fully responsible for all activities that occur under Your Account and Login Information. You agree to notify Us immediately of any unauthorized use, or suspected unauthorized use, of Your Account, any of Your Login Information or any other breach of security. We will have the right, but not the obligation, to deactivate any Account identified in such a notification. We cannot and will not be liable for any loss or damage arising from Your failure to comply with the above requirements. The foregoing sentence shall survive the termination of this Agreement.
9. Your Data.
o 9.1 Ownership of Your Data. As between Retentacle and You, You shall retain all of Your ownership rights (including, but not limited to, all intellectual property rights) in any digital records (such as digital copies of receipts) or other materials that You upload or submit to Your Account or otherwise through the Services, receive from third parties with whom You transact and which You receive through Your use of the Services (collectively, “Your Data”).
o 9.2 Our Rights to Use Your Data. By using the Services, You hereby grant Retentacle a worldwide, non-exclusive, transferable, irrevocable, perpetual, paid-up, royalty-free license (in all media formats and channels, including, but not limited to, media formats and channels that may subsequently evolve or develop) in respect to Your Data to use, copy, prepare derivative works of and otherwise exploit Your Data for: (i) the provision of the Services to you, and (ii) analyzing and data mining Your Data to create aggregated and anonymous statistics regarding, among other subjects, and without limitation, purchasing and other commercial activities and trends and demographic data and behaviour as further described in Our Privacy Policy (collectively, the “Retentacle Aggregate Data”). You acknowledge and agree that Retentacle shall own all right, title and interest in and to the Retentacle Aggregate Data, including, without limitation, all intellectual property rights. The foregoing license shall survive the termination of this Agreement and also if You stop using the Services.
o 9.3 Representations and Warranties about Your Data. In connection with Your Data, each time You submit or post Your Data, You represent and warrant that You are at least the age of majority in the jurisdiction in which You reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor (including, but not limited to, Yourself) who is depicted in or contributed to any of Your Data, and that: (i) You are the sole author and/or owner of Your Data, or otherwise have the lawful right to grant the license set forth in Section 2 all without any Retentacle obligation to obtain consent of any third party and without creating any obligation or liability of Retentacle; (ii) the posting of Your Data on, through or in connection with the Services does not and will not violate the privacy rights, publicity rights, intellectual property rights, contract rights or any other rights of any person or entity; and (iii) Your Data will not violate this Agreement, or cause injury or harm to any person or entity. Except as otherwise described in the Privacy Policy, or any Additional Terms, You agree that: (1) Your Data will be treated as non-confidential – regardless of whether You mark them “confidential,” “proprietary,” or the like – and will not be returned; and (2) Retentacle does not assume any obligation of any kind to You or any third party with respect to Your Data.
10. Enforcement. Retentacle reserves the right to investigate and take appropriate action (which may include taking legal action) in Our sole discretion, with or without notice, against anyone who, in Retentacle’s sole discretion, violates Section 2, including, but not limited to, removing the offending Your Data from the Services, terminating the Account of such violators and/or reporting such Your Data or activities to law enforcement authorities. Retentacle may reject, refuse to post or delete any Your Data at, in the sole judgment of Retentacle, violates this Agreement, is inappropriate for the Services or which may be offensive, illegal or violates the rights of any person or entity, or harms or threatens the safety of any person or entity. However, We are not obligated to take any action not required by law. Retentacle, may, but assumes no responsibility or obligation for reviewing or monitoring the Services for inappropriate Your Data or conduct. If at any time Retentacle chooses, in its sole discretion, to review or monitor the Services, Retentacle nonetheless assumes no responsibility for the Your Data, no obligation to modify or remove any inappropriate Your Data, and no responsibility for the conduct of the User submitting any such Your Data.
11. Third Parties.
o 11.1 Application Providers. You acknowledge and agree that the availability of Mobile Apps is dependent on the third party marketplace from which You received a Mobile App (e.g. Apple iTunes or the Google Play Store) (the “Application Provider”). You acknowledge that this Agreement is between You and Us and not with the Application Provider. You agree to comply with, and Your license to use the Services is conditioned upon Your compliance with, the Application Provider’s terms and policies. Further, without limiting the generality of the foregoing, You agree to the additional Application Provider terms set out in Section 23 below.
o 11.2 Third Party Sites and Products. We are not responsible for and do not control any third party website, including, but not limited to, merchant websites, the content or materials contained on third party websites and/or links to third party websites accessible through or on the Services (“Third Party Sites and Products”). We are not responsible for any information You provide to a third party through Your use of Third Party Sites and Products. To the extent that We make available or enable access to Third Party Sites and Products or share information with them at Your request, We do so only as a convenience to You. We have no obligation to review or monitor, and do not approve, endorse, or make any representations or warranties with respect to Third Party Sites and Products. You agree that by using the Third Party Sites and Products, including, but not limited to, to search for, or to enter a particular URL to access, information and content or materials available through the World Wide Web, You may be exposed to Third Party Sites and Products that You may find offensive, indecent or objectionable. You agree that all Third Party Sites and Products are the sole responsibility of the applicable third party from which such Third Party Sites and Products originated, and that You use all Services to access Third Party Sites and Products at Your own risk. You should be aware that when You access Third Party Sites and Products, title and intellectual property rights in and to such Third Party Sites and Products belong to third parties and may be protected by copyright or other intellectual property laws and treaties, and You may be subject to terms of use and privacy policies of the applicable third party. You should make whatever investigation You feel necessary or appropriate before proceeding with any Third Party Sites and Products.
12. Mobile Apps. You understand and agree that Mobile Apps (including, but not limited to, any updates or upgrades) may: (i) cause Your mobile Device to automatically communicate with Our servers (to deliver Services functionality and to record usage data and metrics), (ii) access or affect Mobile Apps or Services-related preferences or data stored on Your mobile Device, (iii) collect personal information as described in the Privacy Policy, and (iv) use the data plan or WiFi services associated with Your mobile Device to communicate with Our servers and to update or upgrade the Mobile Apps. You can withdraw Your consent at any time by removing or disabling Our Mobile Apps from Your mobile Device.
13. Wireless Access. The Services may offer certain features and services that are available to You via Your wireless Device used to access the Services. These features and services may include the ability to access the Services’ features and upload Your Data to the Services and download applications to Your wireless Device (collectively, “Wireless Features”). Standard data and other fees may be charged by Your carrier to participate in Wireless Features. Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or Device. You should check with Your carrier to find out what plans are available and how much they cost or any other questions regarding these carrier-related issues.
14. Feedback. We welcome Your feedback and comments regarding the Services. By submitting or providing Us with comments, messages, suggestions, ideas, concepts, feedback or other information about the Services, Retentacle and/or its operations (collectively, “Feedback”) You thereby and hereby: (i) represent and warrant that no Feedback is confidential or proprietary to You or to any other party; (ii) represent and warrant that no Feedback breaches any agreement to which You are a party; and (iii) grant Retentacle an exclusive fully paid-up, royalty-free, perpetual, irrevocable, unrestricted, transferable, sub-licensable, worldwide right and license to the right to use, share and commercialize Feedback in any way and for any purpose, commercial or otherwise. You also waive in favour of Retentacle and its successors and assigns any and all of Your moral rights in and to all Submissions. These rights survive this Agreement.
15. Aggregate Data. We may monitor use of the Services by all of Our Users and use the data gathered in an aggregate and anonymous manner. You agree that We may use and publish such information, provided that such information does not incorporate any of Your personal information (as that term is defined in the Privacy Policy).
16. Disclaimer. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. RETENTACLE, RETENTACLE LICENSORS, RETENTACLE’S AFFILIATES AND THEIR SUPPLIERS AND SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, “RETENTACLE GROUP”) MAKE NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT) AS TO, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING, BUT NOT LIMITED TO, THE PLATFORM SERVICE OR THE WEBSITE). IN PARTICULAR, RETENTACLE AND NONE OF THE RETENTACLE GROUP MAKE ANY NO WARRANTY THAT THE SERVICES (INCLUDING, BUT NOT LIMITED TO, THE PLATFORM SERVICE OR THE WEBSITE): (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) OR ANY INFORMATION OR CONTENT OBTAINED BY YOU THROUGH USING THEM WILL BE ACCURATE, COMPLETE, OR RELIABLE; OR (D) OR THAT ANY DEFECTS OR ERRORS THEREIN WILL BE CORRECTED. ALL CONTENT AND OTHER MATERIAL YOU DOWNLOAD OR OBTAIN THROUGH THE SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY MATERIALS) IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS THEREFROM. YOU AGREE THAT WE MAY ENFORCE THIS SECTION 16 ON BEHALF AND IN FAVOUR OF RETENTACLE GROUP AS THEIR AGENT AND TRUSTEE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS THAT THIS AGREEMENT CANNOT CHANGE. IN PARTICULAR, TO THE EXTENT LOCAL LEGISLATION IMPLIES STATUTORY TERMS WHICH CANNOT BE EXCLUDED, THOSE TERMS ARE DEEMED INCORPORATED INTO THIS DOCUMENT BUT RETENTACLE’S LIABILITY FOR A BREACH OF THOSE STATUTORY IMPLIED TERMS IS LIMITED IN ACCORDANCE WITH AND TO THE EXTENT PERMISSIBLE UNDER THAT LEGISLATION.
17. Limitation of Liability.
o 17.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL RETENTACLE OR ANY MEMBER OF THE RETENTACLE GROUP, INCLUDING, BUT NOT LIMITED TO, RETENTACLE’S RESPECTIVE SUCCESSORS AND ASSIGNS, BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON ANY CLAIMS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OR IMPAIRMENT OF OTHER ASSETS) ARISING FROM THIS AGREEMENT, THE SERVICES OR OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
o 17.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL RETENTACLE’S OR ANY MEMBER OF RETENTACLE GROUP CUMULATIVE OR AGGREGATE LIABILITY TO YOU FOR DIRECT OR ANY ALL OTHER DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH THE SERVICES, THIRD PARTY PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY SITES AND PRODUCTS) OR OTHERWISE UNDER THIS AGREEMENT EXCEED FIFTY CANADIAN DOLLARS (CAD $500). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. YOU AGREE THAT WE MAY ENFORCE THIS SECTION 17 ON BEHALF AND IN FAVOUR OF THE RETENTACLE GROUP AS THEIR AGENT AND TRUSTEE.
o 17.3 You expressly acknowledge that We make the Services available to You in reliance upon the limitations and exclusions of liability and the disclaimers set forth in this Agreement, and that these form an essential basis of the bargain between You and Us. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth in this Agreement will survive, and, subject to applicable laws, continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of this Agreement.
18. Indemnity. To the maximum extent permitted by Applicable Law, You agree to indemnify, defend (at Retentacle’s election) and hold Retentacle and the Retentacle Group harmless from any loss, expense, liability, claim, damage or demand alleged by any third party, including, but not limited to, reasonable legal fees and costs, due to or arising out of or in connection with (“Claims and Losses”): (i) Your use of the Services, or Your activities in connection with the Services; (ii) Your violation of any Applicable Law in connection with Your use of the Services; (iii) a breach of this Agreement, Other Terms or Additional Terms; or (d) any of Your Data. You will cooperate fully as required by Retentacle in the defense of any Claim and Losses. Notwithstanding the foregoing, Retentacle retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. Retentacle reserves the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of Retentacle. You agree that We may enforce this Section 18 on behalf and in favour of the Retentacle Group as their agent and trustee.
19. Termination. You or Retentacle may terminate this Agreement and, if applicable, close Your Account at any time and for any reason by giving notice to the other party. We may suspend or terminate Services or Your Account at any time, with or without cause. Once this Agreement is terminated, We may permanently delete Your Account and all the data associated with it. If You do not log in to Your Account for twelve (12) or more months, We may treat Your Account as “inactive” and permanently delete the Account and all the data associated with it. All provisions of this Agreement, which by their nature should survive, shall survive termination of Services, including, but not limited to, ownership provisions, waivers, releases, warranty disclaimers, limitations of liability, indemnifications and Sections 1, 2, 3, 1, 5.2, 6.2, 6.3, 7,8, 9, 10 and 14-23.
20. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province without regards to conflict of laws principles. The parties hereby expressly and irrevocably attorn to the exclusive jurisdiction of the courts in the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement.
21. English Language. It is the express wish of the parties that this Agreement and any directly or indirectly related documents be drawn up in English. Les parties ont exprimé la volonté expresse que les présentes modalités et tous les documents s’y rattachant directement ou indirectement soient rédigés en anglais.
22. Miscellaneous. This Agreement (and the documents referred to herein, including, but not limited to, Other Terms and Additional Terms) constitutes the entire agreement between You and Us in relation to the use of the Services, and replaces and extinguishes all prior agreements, arrangements or undertakings of any nature made by the parties, whether oral or written, in relation to such subject matter. The division of this Agreement into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. In this Agreement, words signifying the singular number include the plural and vice versa, and words signifying gender include all genders. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The failure of Retentacle to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. You may not transfer or assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Retentacle and any such assignment shall be null and void from the beginning. Retentacle will not be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results directly or indirectly from an event beyond Retentacle’s reasonable control. We may assign this Agreement and all rights and/or obligations hereunder to any third party without notice for any purpose. This Agreement shall enure to the benefit of and be binding upon Retentacle’s or Your respective heirs, executors, administrators, successors and permitted assigns.
23. Additional Application Provider Terms and Conditions.
o 23.1 Preamble. The following additional terms and conditions apply to You if You are using a copy of a Mobile App that was downloaded from an Application Provider. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 23, the more restrictive or conflicting terms and conditions in this Section 23 apply, but solely with respect to copies of Mobile Apps downloaded from the Application Provider from which You obtained Your copy of a Mobile App.
o 23.2 Acknowledgement. Retentacle and You acknowledge that Retentacle and not the Application Provider is responsible for Mobile Apps and the content thereof. To the extent this Agreement provides for usage rules for a Mobile App that are less restrictive than the Usage Rules set forth for a Mobile App in, or otherwise is in conflict with, the applicable Application Provider’s terms of service, the more restrictive or conflicting Application Provider term applies. Capitalized terms used in this Section 23 that are not defined in this Agreement will have the meaning set out in Apple’s App Store Terms of Service or the Google Play Store Terms of Service, as applicable.
o 23.3 Scope of License. Where Your Application Provider is Apple, , the license granted to You for a Mobile App by Apple is limited to a non-transferable license to install and use such Mobile App in object code form on an iOS Product that is also a Permitted Device You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. Where Your Application Provider is Google, the license granted to You for a Mobile App in object code form through Google Play is limited to a non-exclusive, worldwide and perpetual license to perform, display and use the copy of such Mobile App You obtained from Google Play on Your Permitted Device.
o 23.4 Maintenance and Support. Retentacle is solely responsible for providing any maintenance and support services with respect to Mobile Apps, as specified in this Agreement (if any), or as required under Applicable Law. Retentacle and You acknowledge that the Application Provider has no obligation whatsoever to furnish any maintenance and support services with respect to Mobile Apps. Retentacle and You acknowledge that Retentacle is solely responsible for providing any maintenance and support services concerning any defects or performance issues in the copy of Mobile Apps You downloaded and installed from the Application Provider. For any customer support inquiries with respect to Mobile Apps obtained from an Application Provider, please contact Retentacle as set out in Section 24.
o 23.5 Warranty. Retentacle is solely responsible for any product warranties, product liability, consumer protection and/or intellectual property claim relating to Mobile Apps, whether express or implied by law, to the extent not effectively disclaimed by Retentacle. In the event of any failure of a Mobile App to conform to any applicable warranty, You may notify Your Application Provider, and the Application Provider will refund the purchase price, if any, for such Mobile App to You; and to the maximum extent permitted by Applicable Law, the Application Provider will have no other warranty obligation whatsoever with respect to such Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Retentacle’s sole responsibility.
o 23.6 Product Claims. Retentacle and You acknowledge that Retentacle, not the Application Provider, is responsible for addressing any claims of You or any third party relating to Mobile Apps or Your possession and/or use of Mobile Apps, including, without limitation: (i) product liability claims; (ii) any claim that a Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Retentacle’s limitation of liability is subject to Applicable Law.
o 23.7 Intellectual Property Rights. Retentacle and You acknowledge that, in the event of any third-party claim that a Mobile App or Your possession and use of a Mobile App infringes that third party’s intellectual property rights, Retentacle, not the Application Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
o 23.8 Takedowns. If Retentacle decides to remove from future distribution of Mobile Apps downloaded through an Application Provider, Retentacle will nevertheless continue to comply with applicable terms of service regarding refund requirements and Our removal will not affect any license rights You may be entitled to for such Mobile App(s) You previously purchased or downloaded, or any obligations We may have to You for product support You may have purchased. Notwithstanding the foregoing, Retentacle has the right to remove Mobile Apps in response to: any allegations of or actual infringement of any copyright, trademark, trade secret, trade dress or patent or other intellectual property right of any person or entity, allegations of or actual defamation of any person or entity; any other violations (alleged or actual) of third party rights; or an allegation or determination that a Mobile App does not comply with Applicable Laws. Retentacle also has the right to remove Mobile Apps from any Application Provider in its sole discretion at any time for any reason including, but not limited to, discontinuance of the applicable product or due to business innovation.
o 23.9 Reinstalls. You are allowed unlimited reinstalls of Mobile Apps distributed via the Google Play store, except for any products which are removed from the Application Provider pursuant to Section 23.8 above.
o 23.10 Updates. You acknowledge and agree that the applicable Application Provider may, but shall not be obligated to extend, enhance, or otherwise modify its software or services (or any part thereof) provided hereunder at any time without notice. If updates are made available, the terms of this Agreement will govern such updates. Further, You acknowledge and agree that such modifications are not within Retentacle’s control and may affect Your ability to use, access, or interact with the software and services or require You to change Your products or discontinuing using Mobile Apps entirely.
o 23.11 Apple Push Notifications. Before Retentacle sends You any push notifications through Apple Push Notifications (“APN”), Retentacle will obtain Your consent to receive such notifications. If You deny or later withdraw Your consent, We will not send You push notifications.
o 23.12 Legal Compliance, You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
o 23.13 Developer Name and Address. Retentacle’s contact information for any end-user questions, complaints or claims with respect to Mobile Apps is set forth in Section 24.
o 23.14 Third Party Terms of Agreement. You must comply with applicable third party terms of agreement when accessing or using Mobile Apps as provided by any Application Provider. Such terms of agreement will be located in a link on the applicable Application Provider’s website.
o 23.15 Third Party Beneficiary. Retentacle and You acknowledge and agree that the Application Provider, and its subsidiaries, are third party beneficiaries of this Agreement solely in respect of this Section 23, and that, upon Your acceptance of the terms and conditions of this Agreement, Your Application Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You, and may rely upon any provision of this Agreement that confers a benefit (or rights in their favor) on them as a third party beneficiary thereof.
24. Contacting Retentacle.
o If You have questions about this Agreement, please contact Us:
Email: info@retentacle.com
Mail: Retentacle Inc., c/o 525 Pine Ridge Rd. Pickering, Ontario L1W 2M6
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