TERMS OF SERVICE
These Terms and Conditions (“Terms” or “Agreement”) represent a binding agreement between Precision Consulting & Automation Inc. and You. It is important that you understand your responsibilities and the limitations to the services which You choose to use. Our services are diverse and as a result additional service specific terms may apply. If this is the case, these service specific terms shall become part of Our agreement.
Please use Our services responsibly. By using Our website or any of Our services, You agree to Our Terms. Take note that these Terms change from time to time. If You have used Our services before, You cannot assume that the Terms are still the same. You should review them on a regular basis.
SECTION 1 - Introduction
You wish to use vortext.ca’s services (meaning messaging services as provided under these Terms; hereinafter “Service”. By applying for the services using Our online registration form You are using Our services at Our sole discretion. vortext is a product of Precision Consulting & Automation Ltd., a company registered in Huntsville Ontario and whose office is located at 43 Deerfoot Trail Huntsville ON, P1H0A6 (hereinafter vortext.ca; “We”; “Our”; “Us”).
If You wish to use Our Services We are willing to make the Services available to You subject to and in accordance with these Terms
SECTION 2 - Binding Effect
SECTION 3 - Term and Termination
Our service is provided to you on a pay as you go basis. You are free to terminate Our service at any point without notice. However, we do not provide refunds for any unused portion of any monthly payments you have made on your account.
SECTION 4 - Customer Charges and Payment
You agree to pay all Charges due to Us in respect of making the Service available to You and your access to and use of the Service by pre payment of send credits or monthly payments for our SMS Apps and in accordance with the terms as set out herin.
You agree to pre-purchase send credits as needed and to pay monthly for specific SMS Apps. Each message you send using the Service will therefore reduce your amount of send credits available to You by 1 or more depending on the length of your message and or use of multimedia messages which requires 2 additional credits. Any credits you purchase are yours and will never expire.
You shall be solely responsible for purchasing enough send credits according to your needs and checking your remaining available credits in the my account area of the vortext system. We shall not be in any way responsible or liable in the event that You have insufficient credits to meet your requirements. For the avoidance of doubt, the appropriate send credits will be deducted from your account regardless of whether it is successfully delivered.
If You do not pay any payments due in accordance with the applicable payment terms, We reserve the right to, in Our sole discretion, suspend your access to the Service and/or cease to allow any messages to be sent by You until further payment is received by Us which fully covers any unpaid Charges. You will not be able to receive any refunds for any payments made.
SECTION 5 - Management of your account
After the Free trial is completed, You will have the option to purchase additional send credits or subscribe to a monthly plan for an SMS App in order to continue using our service.
SECTION 6 - Account, Passwords and Security
You must ensure that any information you provide us is complete and accurate. We may suspend or terminate any service if You give information that is not complete and accurate. You warrant that all information You provide to Us is complete and accurate and You indemnify Precision Consulting & Automation against any liability that may arise as a result of your failure to provide complete and accurate information. You must immediately notify Us if any of your information changes.
We will give You or ask You to choose a email address and password for each account. We may change, cancel or suspend your password which You will be notified about.
Security. You must keep your password confidential; must not circumvent, or attempt to circumvent, Our user authentication systems; must tell Us immediately if there is any unauthorized use of your account or any other breach of security; are entirely responsible for all payments and any activities that occur on your account;
are liable for any damage, loss or costs that we or any third party may sustain as a result of any of your actions, or any actions of a third party using your password, account name or account information; and
You must indemnify Us against any claim from any use of your password, account name or account information by a third party or as a result of your violation of this section
SECTION 7 - Availability and Interruption of the Service
We will make the Services available to You using reasonable skill and care. You do however acknowledge and agree that the availability of the Services, your ability to access and/or use the Services and the conducting of any given Chargeable Event may depend upon factors beyond Our reasonable control, including (but not limited to):
Factors affecting the operation of the Services and/or preventing Chargeable Event from being successfully conducted such as, by way of example, geographical or topographical shortcomings in the network of any telecommunications network operator (“Network Operator”), network capacity, physical obstructions or atmospheric conditions; or Factors preventing end-users from receiving Chargeable Events such as, by way of example, the terms and conditions of an end-user’s service provider.
We cannot therefore guarantee:
That the Services will be available to You at all times or free from faults or interruptions;
The receipt by any intended recipient of any Chargeable Event sent using the Services (as applicable).
We will not be in any way liable for any failure to make the Services available to You to the extent that such failure results from a technical or other failure on the part of any Network Operator or any other event which is beyond Our reasonable control. We provide all services “as is” and “as available”, and We hereby do not warrant, represent or guarantee, whether expressly or by implication, that any Services are free of errors or interruptions, always available, fit for any purpose, secure or do not infringe any third party rights.
We may, at Our sole discretion, alter or improve the Services We provide to You at any time, provided that any such alteration does not materially affect the nature or detract from the functionality of the Services.
It may be necessary from time to time for Us to suspend the Services that We provide to You for routine or emergency maintenance and/or repairs and We will, in so far as it is reasonably possible, provide You with a reasonable period of notice prior to any such suspension.
We may at Our sole discretion suspend your access to the Services and/or cease to allow any Chargeable Events to be conducted by You at any time. We are entitled to terminate these Terms for any reason, in which case We will give You appropriate notice as soon as is reasonably possible
SECTION 8 - Support services
Unless We agree otherwise in writing, We will provide on-line technical support in respect of the Service available to You at the following e-mail address: email@example.com
SECTION 9 - Confidentiality and Data Protection
You will at all times keep confidential all information acquired as a consequence of using Our Services, except for information already in the public domain or information which You are required to disclose by law, requested by any Regulator or reasonably required by your professional advisors for the performance of their professional services.
We will treat your End-User Data as confidential and will not disclose it to any third party or use or copy any part of it except for the purposes of making the Services available to You and providing any technical support required. We will make no further use of your End-User Data without your specific authorization.
SECTION 10 - Marketing
Either party may make use of the other party’s name and visual identity for publicity and marketing purposes, without prior consent. Should this be unacceptable to either party, the withdrawal of consent must be communicated. Without limitation to the foregoing, no press release and/or any blog entry may be made by either party regarding this Agreement, without the prior consent of the other party.
SECTION 11 - Rules of Use
You warrant that You will not:
- Use the Services or permit the Services to be used to send messages to any end user for marketing purposes without that end-user’s explicit request for, or prior consent, to receiving them. If you are sending any message for commercial purposes to any of your end-users, You must abide by the telephone marketing practices of the end-users’ jurisdiction, including but not limited to, obtaining prior expressed consent from those end-users, and give all end-users the right to opt out of receiving any further messages sent by You for commercial purposes (and You shall promptly process any end user’s election to opt out);
- Use the Services or permit the Services to be used to convey messages to any end-user, with a frequency and in numbers which are excessive in Our reasonable opinion;
- Use the Services or permit the Services to be used for any improper, fraudulent, immoral or unlawful purpose;
- Use the Services or permit the Services to be used for the transmission of any material which is of a defamatory, offensive, abusive, obscene or menacing character or nature. This includes but is not limit to; adult content (e.g., pornography, nude dancing clubs, escort services), Illegal or illicit drugs, alcohol, tobacco, or firearms, gambling, violence, hatred, or profanity
- Any mention of any wireless carrier or any representation that copies or parodies any product or service of any wireless carrier
- Use the Services or permit the Services to be used in a manner that infringes the intellectual property rights or any other proprietary rights of any third party; or
- Use the Services or permit the Services to be used in a manner that may injure or damage any person or property or cause the quality of the Services to be impaired.
- You will not state or imply any approval by Us in any particular message that You send using the Services or refer to Us in any way without Our prior written approval.
You warrant that you will:
- Comply with all reasonable directions and instructions issued by Us from time to time in relation to the Services;
- Comply with and observe at all times all applicable laws, regulations and Codes and any directions, recommendations and decisions of any Regulator; and Not act in any manner likely to bring Us, the Service, or any Network Operator into disrepute.
- Upon request, provide Us or any Network Operator or Regulator with any information relating to your use of the Services that the requesting party reasonably requires. You are responsible for ensuring that any information relating to your end-users, including (but not limited to) your end-user Data, is accurate and complete.
- You will at all times during the continuation of the Agreement send only messages that comply with all applicable laws, regulations and Codes and that contain nothing which is likely to cause offense in view of the generally prevailing standards of decency and propriety from time to time;
- Where requested by Us, You will promptly provide Us with a representative Forecast of your service needs for the requested period, including (but not limited to) all reasonable details required for Us to plan network capacity requirements.
We may, at Our sole discretion cease to convey, and You will promptly cease to transmit at Our request, any messages.
You warrant that You are the sole owner or licensor of all rights in your End-User Data or You have obtained all necessary rights, licenses and consents from all relevant third parties to enable You, Us and Our sub-contractors to use the End-User Data for the purposes of the Agreement.
SECTION 12 - Disclaimers, Limitations of Liability and Indemnification
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) your USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER SERVICES OBTAINED THROUGH THE SITE; (iii) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, your REGISTRATION DATA AND/OR VERIFIED PROFILE; AND (iv) ANY OTHER MATTER RELATING TO THE WEBSITE AND/OR THE SERVICES OFFERED ON THE WEBSITE
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE VORTEXT ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE
You agree to indemnify and hold Precision Consulting & Automation, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Precision Consulting & Automation by any third party due to, arising out of or in connection with your use of the website and/or the Services.
We will not be in any way liable for the content of any messages sent or transmitted using the Service and the full responsibility for their content shall rest on you. You must observe all relevant legislation and regulations applicable in your jurisdiction and in the jurisdiction of all persons with whom you communicate directly when using the Service. By using the Service you also agree to be bound by the Rules of Use.
Subject to any express provision to the contrary in these Terms, We will not in any circumstances be liable to You in contract, tort, negligence or otherwise for any economic loss (including, but not limited to, any loss or profits, business, contracts, revenue, turnover or anticipated savings) or for any indirect or consequential losses, whether or not they were foreseen or foreseeable.
Each party acknowledges that neither You nor We, have entered into the Agreement on the basis of or in reliance upon any representation (save for any representation made fraudulently), warranty or other term except as otherwise expressly provided in the Terms and, as such, all conditions, warranties and other terms implied by statute, common law or otherwise are hereby excluded to the greatest extent permitted by law.
We shall at all times in respect of the subject matter of these Terms comply with all applicable laws, regulations and rules having equivalent effect.
You shall be responsible for explaining and answering to any complaints that We receive from any relevant regulatory body resulting from your use of the Service. We will forward any complaints to you as soon as it is reasonably possible. You must follow the applicable complaint procedures and respond to each complaint within the time-frames specified by the relevant regulatory body and must forward a copy of your response to Us immediately. You will be liable for any fines and/or penalties imposed by any regulatory body against You or Us or any of our associated companies, due to your contravention of these Terms.
SECTION 13 - Intellectual Property
All content, trademarks and data on our website, including software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or licensed to Us, and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights afforded to You in these Terms, all other intellectual property rights on this website are expressly reserved.
We may grant You an individual, personal, non-exclusive and non-transferable license (“the License”) to use our proprietary software or application service, in object code form only, and only in accordance with the applicable Service Specific terms and other documentation, if any, and only in conjunction with the relevant services. You may not reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of our software; modify, translate, or create derivative works based on the software or application; copy, rent, lease, distribute, assign, or otherwise transfer rights to the software or application; or remove any proprietary notices or labels with regard to our services. We retain ownership of all propriety applications, software, intellectual property and any portions or copies thereof, and all rights in it. You will notify Us of any suspected infringement of Our intellectual property of which You become aware and will take all reasonable action as We may direct in relation to that suspected infringement where such is directly and specifically related to the services we provide you.
These Licenses terminate when Our contract with you ends and you must destroy and stop using all of our software and applications in your possession. The software is provided and applications are offered “as is” and subject to the service warranty disclaimers and limitations of liability found elsewhere in these Terms. It is your responsibility to test the services before entering into this contract
Content from Our website may not be used or exploited for any commercial and non-private purposes without Our prior written consent.
SECTION 14 - Force Majeure
Neither party will be liable for any delay in the performance of or any failure to perform any of its obligations under this Agreement that is caused by any event which is beyond its reasonable control, including, but not limited to, the failure, malfunction or unavailability of necessary telecommunications, data communications and/or computer services, power supply failures or shortages, acts or omissions of third parties (including, but not limited to, Network Operators), acts of government or Regulators or telecommunications network congestion.
SECTION 15 - Assignment
Neither party will assign, transfer or sub-contract either in whole or in part any of its rights or obligations under the Agreement without the other party’s prior written consent (not to be unreasonably withheld or delayed), provided that We shall be entitled without your prior written consent to assign, transfer or sub-contract in whole or in part any of its rights or obligations under the Agreement to any affiliated company.
SECTION 16 - Severability
If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
SECTION 17 - Governing Law & Dispute Resolution
These Terms shall be governed by and construed in accordance with laws of Ontario Canada and the parties hereto submit to the non-exclusive jurisdiction of the Ontario Canada courts for the purpose of enforcing any claim arising here-under