Jelato’s Terms of Service
These Terms of Service (this “Agreement”) set forth the terms and conditions that apply to your access and use of the internet website located at www.jelatoapp.com and the Jelato mobile software application Jelato (collectively, the “Site”), each owned and operated by FM Technologies Inc. (“Jelato”, “we”, “our” or “us”), and the services available thereon(the “Services”).
By accessing or using the site or services you are indicating your acceptance to be bound by this agreement. If you do not accept this agreement, you must not access or use the site or the services. If you are dissatisfied with this agreement or any rules, policies, guidelines or practices applicable to the site or services, your sole and exclusive remedy is to discontinue use of the site and services.
Effective Date: October 31, 2018
Ability to Enter into this Agreement and use the Services
In order to enter into this Agreement and use the Services, you must be:
- at least 18 years of age; and
- fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
Intellectual Property Rights
All material available on the Site and all material and services provided by or through Jelato, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and “look and feel”, layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the “Materials”), are owned by us or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws.
Subject to your compliance with all of the terms and conditions of this Agreement, during the term of this Agreement, Jelato grants to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose right to access and use the Materials that we make available to you. You are not permitted to download, copy or otherwise store any Materials.
If Jelato, in its sole discretion and without notice, considers that there is an immediate security or operational risk to the Services or any of its, your or a third party system, then Jelato may immediately suspend access to or use of the Services. The suspension of use and access is not a breach of this Agreement. You acknowledge that the preservation of security, confidentiality and data is paramount. Jelato has no liability to you for suspending the Services under this provision.
This section does not apply to Content; however you agree that any ideas, suggestions, concepts, processes or techniques which you provide to Jelato related to the Services, the Site or Jelato or its business (“Feedback”) are and will be Jelato’s exclusive property without any compensation or other consideration payable to you by Jelato, and you do so of your own free will and volition. Jelato may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Jelato may decide into the Site, the Services, its software, documentation, business or other products or services, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to Jelato in any Feedback and, as applicable, waive any moral rights.
Jelato retains the right to use or share any Aggregated Data generated by anyone using the Site or the Services, including our users, for the purpose of enhancing and providing the Services. “Aggregated Data” means data that does not contain personal information and which has been manipulated or combined to provide generalized, anonymous information. Where you choose to utilize or connect certain services from third parties with the Services, you agree that Jelato may share your lead data with such designated third parties. You are still responsible for any and all personal information that is part of any Content (as defined below).
Your Profile Information and Account
If you sign up for a Jelato account (“Account”), you agree that Jelato is providing you with one user identification reference that you will use to create a username and password (together, the “User ID”) to the extent, and only to the extent, necessary to access and use the Site and Services in accordance with this Agreement. You agree and understand that you are responsible for maintaining the confidentiality of your User ID. That User ID, together with any or other user information you provide, including but not limited to [social media accounts and your location],will form your “Profile Information” and allow you to access your Account. You will provide true, accurate, current and complete information about yourself, and you agree not to misrepresent your Profile Information. You represent and warrant to Jelato that you have not misrepresented any Profile Information. You are responsible for any Profile Information that may be lost or unrecoverable through the use of the Site or Services.
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You agree not to disclose your User ID to any third party. You are solely responsible for all activities that occur under your Account or under your Profile Information. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying Jelato immediately. It is your responsibility to update or change any Account or Profile Information, as appropriate.
In the case of any newsletter or other marketing initiatives, you can withdraw your consent to receiving those communications and unsubscribe to any Jelato subscriptions at any time by clicking “Unsubscribe” at the bottom of such communication or by firstname.lastname@example.org. Doing so may have a material impact on our ability to provide any Services to you, and we are not responsible if you do so.
Submission of Content
The Site and the Services available thereon enable you to provide or upload content, including but not limited to profiles, public postings, images, photos, text, messages and other information or content (collectively, “Content”), to Jelato for the purpose of providing the Services, including sharing your Content with other users of the Services. You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences for submitting, providing or uploading it.
Jelato will use Content you upload solely in connection with providing the Services to you and the other users, and for no other reason. You agree that by uploading, or otherwise providing any Content on or through the Site and/or the Services, you grant to Jelato a perpetual, worldwide, non-exclusive, royalty-free license, with the right to sublicense to the other users, to use, reproduce, process and display all or any portion of such Content, solely in connection with providing the Services to you and the other users. This license includes the right to host, index, cache or otherwise format your Content in order to provide the Services.
You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to Jelato or Jelato’s use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree that Jelato is not responsible for any violations of any third party intellectual property rights in any Content that you submit to Jelato. You agree to pay all royalties, fees and any other monies owing to any person by reason of the Content uploaded, displayed or otherwise provided by you to the Site.
Acceptable Use and Conduct:
You agree that you will not publish or make available any Contentthat, or use the Site or Services in a manner that:
- infringes, violates or misappropriates any third party’s intellectual property or proprietary rights;
- contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
- is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
- is harmful to minors in any way;
- is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Jelato;
- impersonates a Jelato employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity, or to obtain access to the Site or Services or a portion thereof without proper authorization;
- interferes or attempts to interfere with the proper working of the Site or Services or prevents others from using the Site or Services, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site, or that otherwise negatively affects other persons’ ability to use the Site or Services;
- uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the Site or Services or the content contained therein;
- facilitates the unlawful distribution of copyrighted Content;
- except as expressly permitted by Jelato, licenses, sublicenses, rents or leases the Services to third parties, or uses the Services for third party training, commercial time-sharing or service bureau use;
- includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site or Services to users;
- constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
- stalks or otherwise harasses anyone on the Site or using the Services or with information obtained from the Site or Services;
- collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
- requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of the Site or Services for the purposes of automating logins to the Site;
- attempts to gain unauthorized access to the computer systems of Jelato or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or Services;
- posts adult or pornographic Content;
- decompiles or reverse engineers or attempts to access the source code of the software underlying the Site, the Services or any other Jelato technology;
- copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Site or Services;
- accesses the Site or Services for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Site or Services;
- accesses the Site or Services for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or
- accesses the Site to upload any Content or computer code for the purposes of: (i) causing a breach or override of security to the Site or Services; (ii) interfering with the proper working, functionality or performance of the Site or Services; or (iii) preventing others from accessing or using the Site or Services.
Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Jelato has adopted a policy of terminating, in appropriate circumstances and at Jelato’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. Jelato may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Site infringes upon any copyright which you own or control you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to Receive Notification of Claimed Infringement: Graham Ian Dawson
Full Address of Designated Agent to Which Notification Should be Sent: 1066-999 West Hastings Street,Vancouver, BC., V6C 2W2
Telephone Number of Designated Agent: 1-250-571-9943
E-Mail Address of Designated Agent: email@example.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Interactions with Other Users
You are solely responsible for your interactions with other users and you agree to take all reasonable precautions in all interactions with other users, particularly if you decide to meet offline or in person. You understand that Jelato does not currently conduct criminal background checks on users, inquire into the backgrounds of users or attempt to verify users’ statements. Jelato makes no representations or warranties as to the conduct of other users. Notwithstanding the foregoing, Jelato reserves the right to conduct any criminal background checks or other screenings (such as sex offender register searches) regarding you and/or other users, at any time and using available public records.
Disclaimer of Warranties
Your use of the site or services and all content forming part of or related to the site or services, including any content you upload or submit and any third party software and content, are at your sole responsibility and risk. The site and services are provided on an “as is” and “as available” basis. Jelato expressly disclaims all representations, warranties, or conditions of any kind with respect to the site or services, whether express or implied, including, but not limited to, any implied warranties or conditions of merchantability, fitness for a particular purpose, accuracy, completeness, performance, system integration, quiet enjoyment, title, and non-infringement.
Jelato disclaims any warranty that the site, the services or any content, including without limitation any third party software and content, will meet your requirements or be uninterrupted, timely, secure, or error-free, that defects will be corrected, or that the site or the servers that makes the site available are free of viruses or other harmful components. You agree that from time to time Jelato may remove the site or cease providing the services for indefinite periods of time without notice to you. your access and use of the site and the services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the site or services or other actions that Jelato, in its sole discretion, may elect to take. Jelato makes no guarantee regarding: (a) the amount, timing and delivery of any clicks or impressions with respect to any content (including third-party content) or advertising on the site or services; or (b) the compatibility of any software, hardware or content with the site or services.
Jelato is not responsible for the acts or omissions of, or for the failings of, any third-party provider of any content, service, network, software or hardware, including but not limited to, internet service providers, hosting services utilized by Jelato, telecommunications providers, content provided by other users, or any software or hardware not provided by Jelato.
You are solely responsible for ensuring that your content is compatible with the site and services. Jelato disclaims any liability or responsibility for any unauthorized use of your content by third parties or other users of the site and services and is not responsible for protecting your content.
Any material downloaded or otherwise obtained through the use of the site or services is done at your own discretion and risk and you will be solely responsible for any damage to your 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 you from Jelato or through or from the site or services will create any warranty not expressly stated in this agreement.
The site and services are offered and controlled by Jelato from its facilities in Canada. Jelato makes no representations that the site or services are appropriate or available for use in other locations. those who access or use the site or services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Third Party Sites and Content
The Site may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. These other websites are not under Jelato’s control, and you acknowledge that Jelato is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Jelato or any association with its operators. You further acknowledge and agree that Jelato will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such website or resource. Access and use of third party sites, including the information, material, products and services on third-party sites or available through third party sites, is solely at your own risk.
Exclusive Remedy and Limitation of Liability
You agree that, under no legal theory, including, but not limited to negligence, breach of warranty or condition, breach of contract or tort, will Jelato or its owners, officers, directors, affiliates, contractors, employees or agents, be liable to you or any third-party acting on your behalf for any indirect, incidental, special, consequential, punitive or exemplary damages, damages for death, bodily injury, emotional distress or other damages resulting from your interactions with other users, or damages for loss of profits, goodwill, use, data, or other intangible losses or the cost of any substitute equipment, facilities or services (even if Jelato has been advised of the possibility of such damages), arising from or relating to this agreement or your use of or your inability to use the site or services, or for any damages arising from or related to this agreement. Jelato’s total aggregate liability from any and all claims under this agreement is limited to [cdn$100]. To the extent any province, state or jurisdiction does not allow the exclusion or the limitation of liability for consequential or incidental damages, Jelato’s liability in such province, state or jurisdiction will be limited to the furthest extent permitted by law. notwithstanding the foregoing or anything else herein to the contrary, Jelato will not be liable to you or any third party acting on your behalf in any way with respect to a trial program or your provision of an individual’s personal information to Jelato or through the services. you further agree that the foregoing limitations will apply with respect to third-party liability of any kind.
The foregoing limitations will also apply with respect to any damages incurred by reason of any content or services provided on any third party sites or otherwise provided by any third parties other than Jelato and received by you through or advertised on the site or received by you on any third party sites. You also agree that Jelato will not be responsible or liable for any loss or damage of any kind incurred as the result of any interactions or dealings with advertisers or as the result of the presence of such advertisers on the site.
Jelato will have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result of any modification, suspension or discontinuance of the Site and/or the Services.
Waiver of Jury Trial and Class Action Rights
With respect to any dispute arising out of or related to the site, the services and/or this agreement: (i) you hereby expressly give up your right to have a trial by jury; and (ii) you hereby expressly give up your right to participate as a member of a class of claimants, in any lawsuit including but not limited to class action lawsuits involving any such dispute.
Limitation of Time
You agree that you will not bring a claim under or related to this Agreement more than 12 months from when your claim first arose.
You agree to indemnify, defend, and hold harmless Jelato, and its subsidiaries, affiliates, co-branders, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives (together, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement, the Site or the Services, including but without limitation in relation to: (a) your use, non-use or misuse of, or connection to the Site, the Services and any Content, including without limitation your Profile Information and any third party Content forming part of the Site; (b) your violation or alleged violation of this Agreement; and (c) your violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein. Jelato reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Jelato and you agree to cooperate with Jelato’s defense of these Claims. You agree not to settle any matter without the prior written consent of Jelato. Jelato will use reasonable efforts to notify you of any such Claims upon becoming aware of it.
Cancellation and Termination
You may cancel your Account at any time through the web interface provided as part of the Services. Cancellation must be issued via your website manager interface or via Jelato’s support addresses. This is the only way to cancel your Account. Email requests or phone requests to cancel your Account will not be accepted.
Jelato is under no obligation to store or delete your Content following cancellation. Jelato may delete your Account and your Content at any time following cancellation or may keep your Account and your Content indefinitely.
Jelato reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. Jelato reserves the right to modify, suspend or discontinue the Site and/or Services, or any portion thereof, at any time and for any reason, with or without notice.
If there is any dispute between you and Jelato about or involving this Agreement, the Site or the Services, you hereby agree that the dispute will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, and the federal laws of Canada applicable therein without regard to its conflict of law provisions.
Except for any claim involving the ownership of intellectual property, all disputes arising out of or in connection with this Agreement will be referred to and finally resolved by arbitration under the rules of the British Columbia International Commercial Arbitration Centre. The appointing authority will be the British Columbia International Commercial Arbitration Centre. The case will be adjudicated by a single arbitrator and will be administered by the British Columbia International Commercial Arbitration Centre in accordance with its rules. The place of arbitration will be Vancouver, British Columbia, Canada. The language of the arbitration will be English. Notwithstanding the foregoing, Jelato may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Jelato through injunctive relief and other equitable remedies without proof of monetary damages.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable will be stricken from this Agreement.
You agree that if Jelato does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Jelato has the benefit of under any applicable law), this will not be taken to be a formal waiver of Jelato’s rights and that those rights or remedies will still be available to Jelato.
The sections of “Intellectual Property Rights”, “Submission of Content”, “Interactions with Other Users”, “Disclaimer of Warranties”, “Third Party Sites and Content”, “Exclusive Remedy and Limitation of Liability”, “Waiver of Jury Trial and Class Action Rights”, “Limitation of Time”, “Indemnity” and “Miscellaneous” will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
This Agreement is the entire agreement between us related to the subject matter in this Agreement. This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by us, regardless of whether or not the parties act under an unsigned “electronic” agreement or rely on such an unsigned agreement.
You may contact Jelato by email at firstname.lastname@example.org or by mail at 1066-999 West Hastings Street, Vancouver, BC, V6C 2W2.