"End User(s)" at all times means customer and user of the Services mentioned herein;
"EULA" means End User License Agreement;
"Polar" and "Polar Mobile" refers to Polar Mobile Group Inc., its affiliates, brand names, trade names, and operating names under which it provides services;
"Services" refers to the products and services provided under license pursuant to this agreement;
"Software" means the executable code for the software, graphics, and other content and associated documentation (if any) downloaded by You for use;
"Intellectual Property" means the Software, design, concepts, trade secrets, and any pending or granted patents related to the Services;
"Content" refers to text, images, audio clips, video clips, and other materials accessed through the use of the Services.
"Handheld Product" refers to any type of communication device, generally, but not necessarily, of a handheld size, which is capable of running the Software.
2. Conditions of License
Polar Mobile hereby grants You a personal, non-exclusive, non-transferable right to install the Software on a Handheld Product and use the Software only on the Handheld Product on which You install the Software. It is agreed and understood by the End User that this EULA contains within it certain conditions of license for use of the Services by a single End User. It is further agreed and understood that such conditions are not exhaustive and that Polar Mobile may from time to time impose further conditions outside of this EULA.
3. General Use
The use of the Services provided under this agreement are intended for entertainment and general use by End Users and the public, and are not, without the express consent of Polar Mobile, intended for resale. End Users further acknowledge that Polar Mobile shall have the right, if, in its sole discretion, it is determined that the Services are not being used for such use, to terminate the Services pursuant to section 9. of this EULA.
4. RSS Feeds and Data Transfers
Pursuant to section 3. of this EULA, Polar Mobile reserves the right to, and may, restrict the transfer of data to individual End Users resulting from the use of the Software. Further, Polar Mobile may terminate the use of the Services if it is determined that use of the same contravenes any section of this EULA. With respect to data transfers, the End User agrees that any fees, charges, rates and the like incurred by the End User from a third party such as a carrier in the use of the Services are not included in the rates and fees identified in section 5. of this EULA. For greater certainty, Polar Mobile will not be responsible for any fees or charged to End Users by third parties as a result of the use of the Services.
5. Rates and License Fees
Use of the Services under this EULA are permitted only under license which must be renewed on an annual basis, and, for greater certainty, must at all times be purchased and paid in full by the End User for the duration of the license at the rates determined by Polar Mobile, if any. Polar Mobile reserves the right to change these rates from time to time as it may deem necessary.
By using the Services, you give Polar Mobile permission to collect information about you as an anonymous user for the purpose of calculating aggregate statistics. You authorize Polar Mobile to use information you provide to personalize the information we deliver to you and to use your demographic information when calculating aggregate customer data. As a registered subscriber, you give Polar Mobile and our agents permission to send you notices related to the subscription Services to which you subscribe.
7. Copyright Policy
The Software is protected by Canadian, US and international copyright laws. You may not copy, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part, except to the extent that copying naturally results from the authorized use of the Software or results in the course of making regular back-ups of the Handheld Product on which the Software is installed. Polar Mobile makes claim of copyright to any and all material associated with the design of the Services, as well as any and all material within the Polar Mobile website. Further, Polar Mobile will at all times endeavour to respect the copyright claims associated with any Content accessed and / or viewed through the use of the Services.
8. Acceptable Use of Services
In accordance with section 3. of this EULA, the End User agrees not to use the Services in an manner constituting or encouraging conduct that would constitute a criminal offence or give rise to civil liability. The End User also agrees not to transmit data or Content which is protected by copyright, or other intellectual property rights, or derivative works thereof, without obtaining permission of the copyright holder. The End User further agrees not to use the Services in a manner which is contrary to law or netiquette, or which would adversely impact use of the Services or the Internet by other users, including the posting or transmitting of information or software containing viruses or other disruptive components.
9. Termination of Services
Polar Mobile reserves the right at all times to terminate the Services provide under license pursuant to this agreement without either notice or cause.
10. Ownership and Proprietary Rights
Use of the Services under this EULA are provided by license only, and in no way whatsoever, can it be understood, inferred, or otherwise implied that use of the Services constitutes ownership of any kind by the End User of the underlying Software and Intellectual Property associated with the Services. For greater certainty, ownership of the underlying Software and Intellectual Property shall at all times be that of Polar Mobile. You acknowledge and agree that the Software may contain valuable trade secrets of Polar Mobile and/or licensors of Polar Mobile. You agree to hold such trade secrets in confidence and further agree not to remove any proprietary notices, labels or marks from the Software. Except to the extent that Polar Mobile is expressly precluded by law from prohibiting these activities, You shall not alter, modify, adapt, create derivative works, decompile, translate, decrypt, deconstruct, disassemble or otherwise attempt to reverse engineer the Software, or permit, authorize or encourage any other party to do the same. This Agreement does not transfer any Intellectual Property or other proprietary rights relating to the Software, including without limitation patents, designs, trademarks, copyright or trade secrets.
11. Limited Warranty and Disclaimer
THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND. WITHOUT LIMITATION, POLAR MOBILE DOES NOT WARRANT THE PERFORMANCE, AVAILABILITY, UNINTERRUPTED USE OF OR OPERATION OF THE SERVICES, YOUR CONNECTION TO THE INTERNET, EQUIPMENT, OR ANY SOFTWARE PROVIDED BY POLAR MOBILE OR THEIR RESPECTIVE LICENSORS, DISTIBUTORS AND PARTNERS. YOU BEAR THE ENTIRE RISK AS TO USE OF THE SERVICES AND ANY SOFTWARE, AND THE AVAILABILITY, ACCURACY, RELIABILITY, TIMELINESS, QUALITY AND PERFORMANCE OF THE SERVICES, EQUIPMENT, AND ANY SOFTWARE AND THE RESULTS OBTAINED FROM USE OF THE SERVICES, EQUIPMENT AND ANY SOFTWARE. POLAR MOBILE DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO YOU (WHETHER BY DATA TRANSFERS OR OTHERWISE) WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM, OR TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME. POLAR MOBILE DOES NOT MAKE EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS (INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICES, EQUIPMENT, ANY SOFTWARE OR ANY MERCHANDISE, INFORMATION OR SERVICE AVAILABLE ON THE INTERNET OR THROUGH THE SERVICES. ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, ARE EXCLUDED TO THE EXTENT PERMITTED BY APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM POLAR MOBILE OR FROM THE SERVICES CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. Limitation of Liability
IN NO EVENT SHALL POLAR MOBILE, ITS AFFILIATES, SUPPLIERS, LICENSORS, PARTNERS, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND REPRESENTAITIVES, BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) THE USE OR INABILITY TO USE THE SERVICES OR THE CONTENT, MATERIALS, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE SITES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICES OR THE CONTENT, MATERIALS, INFORMATION, PRODUCTS, OR SERVICES ON OR AVAILABLE THROUGH THE USE OF RSS FEEDS, EVEN IF POLAR MOBILE OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 13. Indemnification
You will indemnify and hold harmless Polar Mobile and each of its affiliates, licensors, suppliers and agents (and their respective employees, officers, directors and representatives) from and against any claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by Polar Mobile or each of its affiliates, licensors, suppliers or agents relating to: (a) your breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (b) your use of or inability to use the Services; (c) any content, including personal content, or software submitted, displayed, posted or distributed by you using the Services; or (d) your violation, alleged violation or misappropriation of any intellectual property right or non-proprietary right of a third party.
Any notice or other communication required by this EULA may be in writing or delivered electronically BY EMAIL to Polar Mobile or the End User as applicable. Notices delivered will be effective on the date of such delivery.
Polar Mobile is a trademark of Polar Mobile Group Inc. and are not to be used without proper acknowledgement. All other trademarks appearing through the use of the Services or the Polar Mobile website are the property of their respective owners.
16. General Provisions
When used in this EULA, the term 'license' shall be deemed to mean 'sublicense' if Polar Mobile is the licensee and not the owner of an item of Software. Sections 5, 6, 7, 10, 11, 12, 13, 15 and 16 shall survive termination of this EULA. This EULA constitutes the entire agreement of the parties with respect to the Software, and supercedes all prior communications, agreements and discussions between the parties. This EULA is to be governed by and construed under the laws of the Province of Ontario. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts of the Province of Ontario as applicable. You agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this EULA. If any provision of this EULA other than section 11 is void or is declared void, the provision shall be severed from this EULA, which shall otherwise remain in full force and effect. If section 10 is void or declared void, this EULA shall automatically terminate. This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. All questions concerning this EULA shall be directed to: Polar Mobile Group Inc., 31 Fanterra Way, Ottawa, ONTARIO, K1T 3Y7, Canada, Attention: General Counsel. This EULA shall be governed by the laws of the Province of Ontario, Canada. This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written.