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EcoCarrier Inc.

Terms of Use


Terms of Use

Effective: March 20, 2020

These Terms of Use (“Terms”) govern Your access to and use of the TMUCall™ website and MRESENCE™ website (the “Sites”) and the web, Android, and iOS versions of the TMUCall™ application (the “Services”), which are owned and operated by Ecocarrier™ Inc. and its affiliates (“Ecocarrier”). These Terms also govern any and all purchases You make through the Services. In addition to these Terms, Your access to and use of the Services are governed by our Privacy Policy, which is incorporated into these Terms by reference. A copy of our Privacy Policy is posted on each of the Sites. Please read these Terms and the Privacy Policy carefully.

These Terms constitute a binding Agreement between You and Ecocarrier. By accessing or using the Services, You are indicating that You have read and agree to be bound by these Terms. If You do not accept these Terms, please do not access or use the Services.

Ecocarrier reserves the right, in its sole discretion, to modify these Terms at any time and without any notice to You by posting an updated version on our Sites. Please visit our Sites to review the last updated Terms. By continuing to access or use the Services after updated Terms have been posted on our Sites, You agree to be bound by the updated Terms.

In these Terms, “we”, “us” and “our” refer to Ecocarrier, and “You” or “Your” refer to You personally (i.e., the individual accessing the Site or the Services) and/or the entity You represent.

1. Eligibility and the Services

By accessing or using the Services, You represent and warrant to Ecocarrier that:

(a) You are at least eighteen (18) years of age and can legally enter into a binding contract, or You have Your parent’s permission to access or use the Services and Your parent has read and agreed to these Terms on Your behalf;
(b) all information You provide to us is accurate, current and complete, and You will maintain the accuracy, currency and completeness of such information; and
(c) You are legally permitted to access and use the Services, and are fully responsible for such access to and use of the Services.

These Terms are void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.

2. Definitions

The following definitions will apply in these Terms, and any reference to the singular includes a reference to the plural and vice versa.
"Order Form" means the means through which You subscribed to the Services, including if You signed up through an online subscription process. The Services are described at the Sites.
“Call” means a TMUCall™ call, conference, meeting, or session using audio, video and/or text chat, as described at the Sites. A Call has one Host and one or more Participants.
“End User” means a Host or Participant who uses the Services. Your End Users are End Users who access or use the Services through Your account.
“Host” means an individual who is an identified employee, contractor, or agent to whom You assign the right to host Calls. A Host schedules and starts Calls and allows Participants to join. A Host may host only one Call at a time. “Participant” means an individual, other than the Host, who accesses or uses the Services, with or without the permission, invitation, or knowledge of the Host.

3. System Requirements

Use of the Services requires one or more compatible devices, Internet access, and certain software and may require downloading and installing updates to the Services and Your hardware and software. Your ability to access and use the Services depends on the performance of Your hardware, software, and Internet connection. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility. You are responsible for all carrier data plans, Internet fees, and other fees and taxes associated with Your use of the Services.

4. Services

Ecocarrier will provide the Services as described on the Order Form and may make updates to the Services during the term. We may, in our sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice to You. Beta Services: Some Services are provided as a private and/or public Beta, and are made available on an “as is” and “as available” basis and may contain errors or inaccuracies or other defects. We reserve the right to modify, suspend or stop the Beta Service or any part thereof, either temporarily or permanently, at any time or from time to time, with or without prior notice to You. We do not provide any maintenance, technical or other support for any Beta Service. You assume all risks and all costs associated with Your use of any Beta Service.

5. Use of Services

5.1. Your Responsibility. Subject to Your compliance with these Terms, we grant You a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license for the sole purpose of accessing and using the Services in the manner permitted by the Terms. You are solely responsible for Your and Your End Users’ use of the Services and shall abide by, and ensure Your and Your End Users’ compliance with, these Terms and all laws in connection with Your and Your End Users’ use of the Services, including but not limited to laws related to recording, intellectual property, privacy and export control. Ecocarrier assumes no responsibility or liability for Your and Your End Users’ violations. Use of the Services is void where prohibited.

5.2. Registration. You are required to provide accurate information about Yourself in order to register for and use the Services. If You register an account on behalf of an entity, such as Your business or employer, You represent that You have the legal authority to bind that entity to these Terms. You may be asked to choose a user name and password. You are entirely responsible for maintaining the security of Your user name and password and agree to keep them confidential. You are responsible for all activity that occurs under Your account.

5.3. Your Content. The content ("Content") transmitted by You in using the Services remains Your content, and You are solely responsible for it and for compliance with all laws pertaining to the Content, including, but not limited to, laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that for the duration of these Terms, You have (and will have) all the rights necessary for Your Content that is uploaded, stored, or shared on or through the Services and that the collection, use, and retention of Your Content will not violate any law or rights of others. When You share Your Content with other people, You understand that they may be able to use, save, record, reproduce, broadcast, transmit, share and display Your Content without compensating You. If You do not want others to have that ability, do not use the Services to share Your Content. Under no circumstances will Ecocarrier be liable in any way for
(a) any Content that is transmitted or viewed while using the Services,
(b) any errors or omissions in the Content, or
(c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content.

Although we are not responsible for any Content, we may delete any Content, at any time without notice to You, if we become aware that it violates any provision of these Terms or any law. We will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Content, in accordance with industry standards. We will notify You if we become aware of unauthorized access to Content. We will not access, view or process Content except
(a) as provided for in these Terms and in our Privacy Policy;
(b) as authorized or instructed by You,
(c) as required to perform our obligations under these Terms; or
(d) as required by law.
We have no other obligations with respect to Content.

5.4. Recordings. You are responsible for compliance will all recording laws. The Host can choose to record Calls, which may be audio and/or video. The Host is solely responsible for and hereby agrees to obtain consent from Participants regarding the recording and processing of audio or video. By using the Services, You are giving Ecocarrier consent to store recordings for any or all Calls that You join, if such recordings are stored in our systems. You will receive a notification when recording is enabled. If You do not consent to being recorded, You should not join the Call or You should leave the Call.

5.5. Acceptable Use. You must access and use the Services only for legal, authorized, and acceptable purposes. You agree that You will not use (or assist others in using), and will not permit any End User to use, the Services to:

(a) modify, alter, disassemble, decompile, prepare derivative works of, reverse engineer, decipher, hack, or attempt to access the source code of the Services;

(b) engage in any activity or use the Services in any manner that abuses, damages, disables, overburdens, impairs or otherwise interferes with or disrupts Your accounts, the safety, security, or performance of the Services, or any systems or networks connected to the Services;

(c) use the Services to transmit any Content that is or engage in activity that is illegal, fraudulent, false, misrepresentative, or misleading;

(d) use the Services to transmit any Content that may infringe the intellectual property or other rights of Ecocarrier, End Users, or third parties, including copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights;

(e) build a product or service with substantially the same features, functions or user interface as the Services;

(f) use the Services to transmit any Content that is harassing, libelous, threatening, obscene, indecent, defamatory, hateful, racially or ethnically offensive, or harmful, that would cause civil liability, or that constitutes or encourages conduct that could be illegal or otherwise inappropriate;

(g) upload or transmit any viruses, malware, or other software, Content or code designed to harm, disable, destroy or adversely affect performance or functionality of the Services;

(h) impersonate someone;

(i) enable or allow others to use the Services using Your account information;

(j) attempt to breach any security or authentication measures of the Services or otherwise attempt to gain unauthorized access to the Services or systems;

(k) use the Services in violation of any Ecocarrier policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings;

(l) reproduce, license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party unless You have been specifically permitted to do so under a separate agreement with Ecocarrier.

To the fullest extent of the law, Ecocarrier reserves the right to investigate and prosecute violations of any of the foregoing. Ecocarrier may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Ecocarrier has no obligation to monitor your access to or use of the Services or its contents, but reserves the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. At any time and without prior notice, Ecocarrier reserves the right to remove or disable access to the Services or any Content that Ecocarrier, in its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Services.

5.6. Fees. Your use of the Services is subject to the payment of the fees specified on the Order Form, and is limited to the term and to the limitations in usage specified on the Order Form. If Your use of the Services exceeds the limits specified on the Order Form or otherwise requires the payment of additional fees per the Order Form, You will be billed for such usage. All payment obligations are not cancelable and fees paid are not refundable. If You fail to pay any amounts due by You, including for overages, we may suspend Your use of the Services associated with Your account without prior notice to You until such amounts are paid in full. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur with connection with any suspension of the Services pursuant to this section. We may change the prices for the Services at any time, and we will provide You with prior notice. If You do not agree to the price change on the Services to which You are subscribed, You must cancel the Services before the price change takes effect. Your continued use of the Services after any price change made in accordance with these Terms becomes effective is hereby deemed to constitute Your agreement to pay the changed amount. If You cancel Services that were purchased for a specific term, You will not be billed for any additional terms of service, and service will continue until the end of the then-current subscription term. You shall be solely responsible for paying any sales, use, service, value-added, withholding or other tax levied or incurred on account of the Services (excluding taxes based on Ecocarrier’s net income). We use a third-party payment processor to collect payment of the fees. The processing of payments will be subject to the terms, conditions and privacy policies of the third-party payment processor and Your credit card issuer in addition to these Terms.

6. Termination

If You have purchased the Services for a specific term, such termination will be effective on the last day of the then-current subscription term. Your Order Form may specify that a renewal term will begin automatically unless either party provides notice of termination prior to the commencement of the next renewal term. We may modify, suspend, or terminate Your access to or use of the Services at any time without prior notice and retain any fees previously paid by You if we reasonably believe You violated these Terms or created harm, risk, or possible legal exposure for us, End Users, or third parties. Any suspected fraudulent, abusive or illegal activity may be grounds for termination of this Agreement and may be referred to appropriate law enforcement authorities. Upon the termination of this Agreement, all licenses and rights granted to You and to Your End Users shall be immediately revoked, and You and Your End Users shall not make any further attempt to use the Services. You shall also remain responsible and liable for Your and Your End Users’ use of the Services, and Your and Your End Users’ breaches of these Terms.

7. Proprietary Rights

Ecocarrier is the owner or authorized licensee of all intellectual property rights contained in the Services. You acknowledge that you do not acquire any ownership rights by accessing or using the Services or downloading and installing the applications. Ecocarrier retains ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names ("Marks") associated or displayed with the Sites and Services. You are not permitted to use the Marks without Ecocarrier’s prior written consent. All third party trademarks displayed in the Sites and Services remain the property of their respective owners. Unless specifically identified as such, Ecocarrier’s use of third party trademarks does not indicate any relationship, sponsorship, or endorsement between Ecocarrier and the owners of these trademarks.

8. Export Control

You will comply with all applicable United States and non-United States export control and trade sanctions laws ("Export Laws"). You agree not to (a) directly or indirectly, export, re-export, divert, provide, or transfer the Services or any related technical information to any destination, entity or person restricted or prohibited by Export Laws or for any purpose prohibited by Export Laws; (b) use the Services in any destination prohibited by Export Laws; (c) use the Services to transmit Content prohibited by Export Laws.

9. No High Risk Use

You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage (“High Risk Use”). High Risk Use includes, for example, aircraft navigation, military and industrial use, control of nuclear facilities, chemical facilities and modes of human mass transportation, and life support systems.

10. Injunctive Relief

You acknowledge that any use of the Services contrary to these Terms, or any transfer, sublicensing, copying or disclosure of technical information related to the Services, may cause irreparable harm to Ecocarrier, its suppliers and any other party authorized by Ecocarrier to resell, distribute, or promote the Services ("Resellers"), and that a remedy at law for breach of these Terms is inadequate, and that Ecocarrier, its suppliers, and its Resellers shall therefore be entitled to seek any and all equitable relief, including, but not limited to, injunctive relief, and to any other remedy that may be available under any applicable law, and are not required to post any bond or provide any security as a condition to obtaining the injunctive relief.

11. No Warranties

Ecocarrier makes no representations or warranties that the Services will meet Your requirements or expectations, be available or operate on an uninterrupted, timely, secure or error-free basis, or be free from defects, computer viruses or other harmful mechanisms. Ecocarrier makes no representations or warranties about the accuracy, reliability, completeness or timeliness of the Content contained in or obtained through the Services. The Services are provided “as is” and “as available” without any representations or warranties of any kind, whether express or implied, including without limitation the warranty of merchantability, fitness for a particular purpose, title, and non-infringement. Ecocarrier makes no claims that the Services may be lawfully viewed, downloaded, used or accessed in Your country. Access to the Services may not be legal by certain persons or in certain countries. If You access the Services, You do so at Your own risk and are responsible for complying with the laws of Your jurisdiction. You are solely responsible for any damage to You resulting from the use of the Services. Ecocarrier is not responsible for and is not obligated to control the actions or information (including Content) of End Users or third parties. Ecocarrier does not assume any responsibility for retention of any Content transmitted using the Services. Use of the Services is at Your sole risk.

12. Indemnification

You agree to fully indemnify and hold harmless Ecocarrier, its affiliates and their respective officers, directors, shareholders, employees, agents, representatives, Resellers, and suppliers from and against any and all claims, suits, proceedings, actions, demands, liabilities, damages, losses or expenses (including legal and accounting fees) arising out of, resulting from or related to: (a) Your access to or use of the Services, and (b) any breach of these Terms by You.

13. Limitation of Liability

To the extent permitted by law, in no event will Ecocarrier, its affiliates and their respective officers, directors, shareholders, employees, agents, representatives, Resellers, and suppliers be liable to You for any indirect, consequential, exemplary, incidental or punitive damages, including but not limited to loss of data, loss of profits, business interruption, property damage and personal injury (including bodily injury and emotional distress), arising out of the use of or inability to use the Services even if Ecocarrier, its affiliates and their respective officers, directors, shareholders, employees, agents, representatives, Resellers, or suppliers have been advised of the possibility of such damage. To the extent permitted by law, if Ecocarrier is found to be liable to You for any loss or damage, which arises out of or is in any way connected with Your use of the Services, Ecocarrier’s liability shall in no event exceed the amount You paid to Ecocarrier for Your use of the Services for the term during which the event or circumstances giving rise to the claims occurred.

14. Dispute Resolution

If a dispute arises under this Agreement and is not resolved by discussions, then You and Ecocarrier each agree to participate in good faith mediation in Toronto, Ontario, Canada, administered by the International Centre for Dispute Resolution under its Mediation Rules. The parties shall equally share any mediation fees associated with the mediation. If settlement is not reached within 30 days after service of a written demand for mediation, any unresolved controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution. All disputes shall be heard by a single arbitrator. The place of arbitration shall be New York, New York or any other place agreed upon at the time by the parties. The language of the arbitration shall be English. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitation. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to that party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees and legal costs. The arbitrator shall issue a reasoned award. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. The arbitration proceedings and arbitrator’s award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management and to family members of a party who is an individual. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action, and the parties agree not to sue in court in front of a judge or jury.

15. Privacy Policy

In addition to these Terms, Your access to and use of the Services are governed by our Privacy Policy, which is incorporated into these Terms by reference. A copy of our Privacy Policy is posted on each of the Sites.

16. General

16.1. Entire Agreement. These Terms represent the entire agreement between Ecocarrier and You with respect to the Services, and these Terms supersede any and all previous or contemporaneous oral or written negotiations and agreements between Ecocarrier and You regarding the Services, except that if You have executed a separate written agreement or You have signed an Order Form referencing a separate agreement governing Your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement.

16.2. Assignment. You may not assign or transfer these Terms without Ecocarrier’s prior written consent. Any attempt by You to assign or transfer these Terms without such consent will be null and void, and of no effect. Ecocarrier may assign or transfer these Terms, in its sole discretion, without restriction.

16.3. Survival. All provisions of these Terms that reasonably may be interpreted as surviving the termination of these Terms shall survive such termination.

16.4. Governing Law. These Terms are governed, construed, interpreted and enforced in accordance with the laws of the Province of Ontario, Canada, without regard to conflict of law principles.

16.5. Severability. If any provision of these Terms is held to be unenforceable under applicable law, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.

16.6. Waiver. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or any other provision of these Terms. Furthermore, Ecocarrier’s failure to enforce any provision of these Terms shall not be deemed as a waiver of such provision or otherwise affect Ecocarrier’s ability to enforce such provision at any point in the future.