Last Updated: This Agreement was last revised on November 20, 2015.
The following are terms of a legal agreement between Sera4 Ltd. (and for the benefit of its licensees) (“Sera4”, “Our”, “Us” or “We”) and you (“You” or “Your”) and applies to Your use of MLS (as defined below). BY ACCESSING OR USING MLS, BY CLICKING “I AGREE” AND/OR ANY OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THESE TERMS OF SERVICE (“AGREEMENT”), (I) YOU ACCEPT THIS AGREEMENT ON BEHALF OF THE ENTITY FOR WHICH YOU ARE AUTHORIZED TO ACT (E.G., AN EMPLOYER) AND ACKNOWLEDGE THAT SUCH ENTITY IS LEGALLY BOUND BY THIS AGREEMENT (AND YOU AGREE TO ACT IN A MANNER CONSISTENT WITH THIS AGREEMENT) OR, IF THERE IS NO SUCH ENTITY FOR WHICH YOU ARE AUTHORIZED TO ACT, YOU ACCEPT THIS AGREEMENT ON BEHALF OF YOURSELF AS AN INDIVIDUAL AND ACKNOWLEDGE THAT YOU ARE LEGALLY BOUND BY THIS AGREEMENT, AND (II) YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH ENTITY (IF ANY) OR YOURSELF. YOU MAY NOT ACCEPT THIS AGREEMENT ON BEHALF OF AN ENTITY UNLESS YOU ARE AN EMPLOYEE OR OTHER AGENT OF SUCH ENTITY WITH THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF SUCH ENTITY. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT USE OR ACCESS MLS, AND YOU MUST NOTIFY Sera4 OR THE VENDOR FROM WHICH YOU ACQUIRED ACCESS TO MLS.
1.1 Description of MLS. Sera4’s Mobile Locking Service, powered by Sera4 (“MLS”) is a proprietary cloud based solution for authorized smart locks providing: secured proximity-based locking and unlocking from mobile devices; web/application access to key control and monitoring functions; and related hosting services.
1.2 Scope of this Agreement. This Agreement constitutes legally binding terms and applies to such use MLS regardless of the type of computer, tablet, smartphone or other device (“Device”) used to access. Your access or use is conditioned 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, rules, or terms of service, use or sale setting forth additional or different terms and/or conditions will apply to Your use of MLS or to a service or product offered via MLS (in each such instance, and collectively, “Additional Terms”). To the extent there is a conflict between this Agreement and any Additional Terms, this Agreement will control.
1.3 Eligibility. By using MLS, You represent and warrant that: (i) all registration information You submit to Sera4 is truthful and accurate; (ii) You will maintain the accuracy of such information; and (ii) Your use of MLS does not violate any Applicable Law.
1.4 Use of MLS on Behalf of an Organization. If You are using MLS on behalf of an organization: (i) You are agreeing to this Agreement for that organization and represent and warrant to Sera4 that You have the authority to bind that organization to this Agreement (in which event, “You” and “Your” will refer to that organization) unless that organization has a separate contract in effect with Us, in which event the terms of that contract will govern Your use of MLS; (ii) You may use MLS only in compliance with this Agreement and only if You have the power to form a contract with Sera4 and are not barred under any Applicable Laws from doing so; and (iii) Your use of MLS shall be governed by this Agreement. If, after acceptance of this Agreement, We find that You do not have the legal authority to bind such organization, You will be personally responsible for the obligations contained in this Agreement.
2.1 Modification of this Agreement. Sera4, in its sole and absolute discretion, may change or modify this Agreement, at any time, and such changes or modifications shall be effective immediately upon posting to Our website. You acknowledge and agree that: (i) Sera4 may notify You of such changes or modifications by posting them to Our website and/or MLS (including, without limitation, by notification through MLS’s sign-in processes) or by email; and (ii) Your use of MLS after such changes or modifications have been made (as indicated by the “Last Updated” date at the top of this page) shall constitute Your acceptance of this Agreement as last revised. If You do not agree to such amended or modified Agreement, then You must immediately stop using MLS and contact Us or the vendor from which You acquired access to MLS.
2.2 Changes to MLS. We continually update and test various aspects of MLS, including features, functions and user interfaces. We reserve the right to, and by using MLS You agree that We may, include You in or exclude You from these tests without notice. We reserve the right in Our sole and absolute discretion to make changes from time to time and without notice in how We offer and operate MLS. Sera4 reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to MLS at any time. We may add or remove functionalities or features of MLS. Sera4 reserves the right to modify or replace any of its policies and practices related to MLS. To the extent that any of the foregoing requires a modification of this Agreement, such modification will be made in accordance with Section 2.1 above.
3. ACCESS AND USE.
3.1 Access to MLS. You may access and use MLS solely for Your own benefit and in accordance with the terms and conditions of this Agreement, Additional Terms, the Documentation (as defined below), Applicable Laws and any usage restrictions applicable to Your subscription to MLS. In this Agreement, “Documentation” means that documentation that is generally made available or provided to You by Sera4 for MLS, as revised by Sera4 from time to time, and which may include service descriptions and access or usage instructions regarding MLS.
3.2 Restrictions on Use. You shall not use MLS in any fashion except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, You shall not and shall not permit any third party to, directly or indirectly, do any of the following acts: (i) copy, reproduce, modify or attempt to modify MLS or Confidential Information (as defined below) in any way; (ii) reverse engineer, disassemble or decompile any software used to provide or access MLS, or attempt to discover or recreate the source code used to provide or access MLS; (iii) use MLS in any manner or for any purpose other than as expressly permitted by this Agreement or Additional Terms; (iv) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to You with respect to MLS to any third party; (v) remove, obscure or alter any proprietary rights notice pertaining to MLS; (vi) access or use MLS in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; (vii) use MLS to engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; MLS; (viii) cause, in Sera4′ sole discretion, inordinate burden on MLS or Sera4′ system resources or capacity; (ix) modify, translate, or create derivative works based on any portion of MLS, the Documentation or any Confidential Information; (x) access or use MLS in order to build a competitive product or services or copy any features or functions of MLS; (xi) circumvent or modify, attempt to circumvent or modify, or encourage or assist any other party in circumventing or modifying any security technology or software that is part of MLS; (xi) impersonate or attempt to impersonate Sera4 or Our employees (including, without limitation, the use of email addresses associated with any of the foregoing); (xiii) use the Account, username, or password of another User of MLS at any time; or (xiv) violate any Applicable Law. You acknowledge and additionally agree that We reserve the right to stop (including, but not limited to, suspending any Accounts) any conduct that is in violation of this Agreement or restricts or inhibits other users of MLS from fully utilizing and enjoying MLS.
3.3 Accounts. You will be issued one initial master account for accessing MLS (the “Master Account”). Through Your Master Account, You will be able to establish additional user accounts to access MLS (“Other Accounts”, and together with the Master Account, “Accounts”). You are responsible for authorizing and controlling access to MLS, maintaining the confidentiality of all usernames and passwords (“Credentials”) for all Accounts, and for any use that occurs under all Accounts and Credentials. You agree to notify Sera4 immediately of any breach of security or unauthorized use of any Account or Credentials. You shall be responsible and liable for all activity that occurs under all Accounts, whether authorized by You or your authorized users (as the case may be) or not. You acknowledge and agree that in no event shall We be liable, directly or indirectly, to You or any other person or entity for any loss or damage as a result of an activity under any Accounts. The foregoing sentence shall survive the termination or expiration of this Agreement. You may not use anyone else’s Account at any time without the permission of the Account holder.
3.4 Maintenance. We reserve the right to perform routine monthly maintenance of MLS at any time and to perform maintenance on an urgent basis as otherwise reasonably required by Us. In the case of routine maintenance, We will use commercially reasonable efforts to notify in advance of such maintenance. Notwithstanding the above, MLS will be available at least 99% of the time, exclusive of loss or interruption stemming from events that are not within the direct control of Sera4.
3.5 Data Protection. Sera4 shall maintain commercially reasonable information security measures to protect all information provided by You through MLS and any information generated by MLS against accidental or unlawful modification, destruction or processing or unauthorized disclosure, use or access, such physical, procedural, technical and general organizational security measures being no less than that used by Sera4 to protect its own confidential information.
4. OWNERSHIP AND RESERVATION OF RIGHTS.
MLS and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all intellectual property rights therein, are and shall remain the sole and exclusive property of Sera4 and its licensors. Your rights to use MLS and Documentation shall be limited to those expressly granted in this Agreement. No other rights with respect to MLS or any related intellectual property rights are implied.
5.1 In this Agreement “Confidential Information” means information or materials provided by Us to You which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) Credentials; (b) information regarding Sera4 pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to MLS. You may use Confidential Information; (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship. You will not use any Confidential Information for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information only to Your employees or contractors who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Your duty hereunder. You will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as You protect Your own confidential or proprietary information of a similar nature but with no less than reasonable care. Your obligations under with respect to any Confidential Information will terminate if You can show by written records that such information: (i) was disclosed to You by a third party who had the right to make such disclosure without any confidentiality restrictions; (ii) is, or through no fault of You has become, generally available to the public; or (iii) was independently developed by You without access to, or use of, Confidential Information. In addition, You will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that You notify Us of such required disclosure promptly and in writing and cooperates with Us, at Our request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6. TEST OR “BETA” FEATURES.
From time to time, We may offer new “beta” features or tools for MLS for You to evaluate. Such features or tools are offered solely for experimental and evaluation purposes and without any warranty or condition of any kind, and may be modified or discontinued at any time at Our sole discretion. The provisions of this Section apply with full force to such features and tools.
7. AGGREGATE DATA.
You agree that, except as otherwise set forth in this Agreement, We shall be entitled to generate Usage Data (as defined below) based on Your (and its users’) respective access, use and operation of MLS in order to improve Our products and services generally. You agree that We may extract and create anonymized data from any Usage Data (“Extracted Data”). Extracted Data shall not contain, disclose or otherwise identify You. We shall exclusively own all rights, including all intellectual property rights, in and to all Extracted Data. You acknowledge and agree that We owns all Extracted Data, whether as part of derivative works or otherwise. In this Agreement, “Usage Data” means metadata or analytical information generated by We with respect to Your use and/or operation, and its users’ use and/or operation of, MLS.
We welcome Your feedback and comments regarding MLS. By submitting or providing Us with comments, messages, suggestions, ideas, concepts, feedback or other information about MLS, Sera4 and/or its operations (collectively, “Submissions”) You thereby and hereby: (a) represent and warrant that none of the Submissions are confidential or proprietary to You or to any other party; (b) represent and warrant that none of the Submissions breach any agreement to which You are a party; and (c) grant Sera4 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 Your Submissions in any way and for any purpose. You also waive in favour of Sera4 and its successors and assigns any and all of Your moral rights in and to all Submissions. These rights survive this Agreement.
TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, MLS (INCLUDING, BUT NOT LIMITED TO, YOUR ACCESS TO AND USE OF MLS), THE DOCUMENTATION AND CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. Sera4 MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON- INFRINGEMENT OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) MLS (INCLUDING, WITHOUT LIMITATION, (A) THE PERFORMANCE OF MLS OR ITS FAILURE TO PERFORM, (B) THE AVAILABILITY OR RELIABILITY OF MLS, (C) THE FUNCTIONS, FEATURES AND INFORMATION MADE ACCESSIBLE OR AVAILABLE ON OR THROUGH MLS, AND (D) OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO YOU BY Sera4); AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR DATA TRANSMITTED TO OR FROM YOU OR OTHERS VIA MLS.
You will defend, hold harmless, and indemnify Sera4 and its directors, officers, employees, agents, subsidiaries, affiliates and each of their successors from and against all third party claims, actions, demands, proceedings, damages, costs and liabilities of any kind (collectively, “Claims”) to the extent that the Claims arise out of or relate to Your use of MLS, or Your breach of Your representation, warranties or obligations under this Agreement. You may not settle or compromise any indemnified Claim without Our prior written consent.
11. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL Sera4 AND/OR ITS LICENSORS OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OR OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF THIS AGREEMENT OR BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRED SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN ADDITION, IN NO EVENT WILL Sera4′ CUMULATIVE OR AGGREGATE LIABILITY TO YOU OF ANY KIND OR NATURE IN CONNECTION WITH MLS OR OTHERWISE UNDER THIS AGREEMENT EXCEED ONE HUNDRED THOUSAND CANADIAN DOLLARS (CAD $100,000.00).
12. TERM AND TERMINATION.
12.1 Term. The term of this Agreement starts upon Your acceptance of this Agreement and will terminate upon the termination of the earlier of the expiration of Your subscription to MLS or terminate by Us under this Section 13.
12.2 Termination. We may terminate this Agreement immediately upon written notice to You if: (a) You breach any provision of Section 3; (b) You fail to pay any portion of any fees owing by You in respect of MLS within ten (10) days after receiving notice from that payment is past due; (c) You breach any other provision of this Agreement or any Additional Terms and do not cure the breach within thirty (30) days after receiving notice thereof from Sera4; or (d) You commit a material breach that is not capable of being cured. We may also terminate this Agreement in its entirety effective immediately upon written notice to You if You: (a) terminate or suspend Your business; (b) become insolvent, admit in writing Your inability to pay Your debts as they mature, make an assignment for the benefit of creditors; or become subject to control of a trustee, receiver or similar authority; or (c) become subject to any bankruptcy or insolvency proceeding.
12.3 Effect of Termination. If Sera4 terminates this Agreement under this Section 13: (a) all rights to MLS granted to You under this Agreement will immediately cease to exist; and (b) You must promptly discontinue all access or use of MLS, and return, or if requested by Sera4, destroy, any related Confidential Information in Your possession or control and certify in writing to Sera4 that You have fully complied with these requirements. All provisions of this Agreement, which by their nature should survive, shall survive termination of this Agreement, including, without limitation, Sections 4 -17. You acknowledge that Your failure to pay applicable subscription fees and the resulting termination of this Agreement may result in Your in ability to utilize applicable smart locks.
Where We require that You provide an email address, You are responsible for providing Us with Your most current email address. In the event that the last email address You provided to Us is not valid, or for any reason is not capable of delivering to You any notices required/permitted by this Agreement, Our dispatch of the email containing such notice will nonetheless constitute effective notice. You consent to receive all communications including notices, agreements, disclosures, or other information from Us electronically. We may provide all such communications by email or by posting them on MLS. You may send notices of a legal nature to: our office headquarters. Nothing herein shall limit Our right to object to subpoenas, claims, or other demands.
14. COMPLIANCE WITH LAWS; EXPORT CONTROL; GOVERNMENT REGULATIONS.
Each party shall comply with all laws applicable to the actions contemplated by this Agreement. Components and other software available in connection with MLS (the “Software”) are further subject to Canadian and United States export controls. No Software may be downloaded from Sera4, used or otherwise exported or re-exported in violation of Canadian or U.S. export laws. Downloading or using the Software is at your sole risk and subject to compliance with all Applicable Laws. You represent that (1) You are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which each of Canada and the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) You will not permit MLS to be used for, any purposes prohibited by law. MLS is commercial in nature. The MLS and Documentation are “Commercial Items,” as that term is defined in 48 C.F.R.§2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are defined in 48 C.F.R. §252.227-7014(a)(1) and 48 C.F.R. §252.227-7014(a)(5), and used in 48 C.F.R. §12.211, 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable. Pursuant to 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R.§252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-19 and other relevant sections of the Code of Federal Regulations, as applicable, Sera4′ publications, commercial computer software, online services and commercial computer software documentation are distributed and licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in the license agreements and terms of service that accompany the products and software documentation and the terms and conditions herein.
15. 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.
This Agreement together with those incorporated or referred to in this Agreement, constitute the entire agreement between You and Sera4 pertaining to the subject matter of this Agreement, and supersede any prior agreements, understandings, negotiations and discussions, whether electronic, oral or written, regarding the subject matter, and may not be amended or modified except by the Us as set out above. There are no representations, warranties or other agreements between us in connection with the subject matter of this Agreement, except as specifically set out in this Agreement. 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. This Agreement will be severable. In the event that any provision is determined to be unenforceable or invalid, that provision will nonetheless be enforced to the fullest extent permitted by applicable law, and that determination will not affect the validity and enforceability of any other remaining provisions of this Agreement. The failure of Sera4 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 Sera4 and any such assignment shall be null and void from the beginning. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Agreement shall enure to the benefit of and be binding upon Sera4′ or Your respective permitted successors and assigns.