texi APPLICATION

Terms of Use and End User License Agreement

IMPORTANT: BY DOWNLOADING, ACCESSING OR USING THE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU, AND YOUR PARENT/LEGAL GUARDIAN ON YOUR BEHALF IF YOU ARE A MINOR, UNDERSTAND AND AGREE TO BE LEGALLY BOUND BY ITS TERMS.

Standard data use and service rates apply while you use the Application (including, without limitation, standard data use and services rates that apply when the Application sends a text message on your behalf in response to a text message that is sent to you while you are driving) and may vary according to your Device package and service provider.  Please contact the service provider for details before using the Application.

  1. Agreement

These Terms of Use and End User License Agreement (the “Agreement”) is a binding, contractual agreement between you (“you”) and The Dilawri Foundation, together with its subsidiaries and affiliates (hereinafter referred to as “us”, “we” and/or “Company”) with respect to your use of the texi Application (the “Application”). This Agreement applies solely to your use of the Application, including all enhancements, versions, and modifications to the Application. You must be, a resident of Canada, 16 years old or older to use the Application. If you are under the age of majority in your jurisdiction of residence, your parent or legal guardian must agree to this agreement on your behalf. By downloading or using the Application, you represent and warrant that (i) you are not located in a country that is subject to a U.S. or Canadian government embargo, or that has been designated by the U.S. or Canadian government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. or Canadian government list of prohibited or restricted parties.

By clicking the “I Agree” button below, you (and your parent/legal guardian if you are under the age of majority in your jurisdiction of residence) are indicating your: (i) acceptance of, and agreement to be legally bound by, all of the terms and conditions of this Agreement; and (ii) consent to the installation of the Application on your compatible mobile device.  If you do not accept and agree to the following terms and conditions, you must click the “I Do Not Agree” button, in which case you will not be permitted to install or use the Application.

This Agreement is entered between you and Company, not Apple Inc. Apple Inc. is not responsible for the Application or the content thereof, and has no obligation to provide any maintenance or support with respect to the Application.  Any claims with respect to the Application, including without limitation any claims with respect to intellectual property rights, must be addressed to Company, not Apple Inc. In the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property right, Company, not Apple Inc., will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim. Apple Inc., and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof

  1. Application Functionality

The Application is designed to assist in driving safely by helping you resist the temptation to send text messages while driving. When the Application has been activated, The Application has two primary functions, first, it monitors whether you send outgoing text messages while the vehicle in which your Device (defined below) is in is moving over 7.5 km/hour (“Monitoring Function”). Second, when used on an Android device, the Application acts as a text message answering machine, sending persons who text you while the vehicle in which your Device is in is moving over 7.5 km/hour a reply text informing them that you are driving (“Response Function” and collectively with the Monitoring Function, the “Functions”). To utilize either of the functions, you must download the Application, and follow the instructions presented in the Application to activate it. To activate the Application, open the Application before you begin driving a vehicle and select “On”, once you have completed a driving session, select “Off” to end to deactivate the Application and turn off the Functions. When the Application has been activated, the Functions will operate when your Device is in a Vehicle that is moving over 7.5 km/hour (“Driving”).

The Monitoring Function keeps a record of the number of minutes your Device is in a Vehicle that is Driving, and the number of times that your Device is used to send a text message while in a vehicle that is Driving. To help determine when your Vehicle is Driving, – while the Application is active will also collect real time information  regarding the location of your Device.

If you are using the Application on an Android Device, the Response Function automatically sends a response message on your behalf to any person who sends a text message to your Device while it is in a vehicle that is Driving (“Response”). The Response will take the form of a meme sent via text message from a library of memes on the Device (“Library”), paired with text informing the person who receives the Response that you are Driving. Users will be able to select from a list of pre-made memes to add to their Library, and will also have the opportunity to create their own custom memes using either photos from their Device, or a photo they take while creating the meme. The meme or custom meme that is sent as a Response when a user receives a text message while Driving will be chosen at random by the Application from their Library. Users have the ability to delete memes and custom memes from their Library, or to deactivate memes so that the deactivated meme or custom meme will not be used as a Response.

You must provide at your own expense the Devices and/or and service plan required to use the Application. You acknowledge that when you use the Application, your wireless carrier may charge you fees for data, messaging, and/or other wireless access. YOU, AND NOT COMPANY, ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO USE THE APPLICATION ON YOUR DEVICE.

The Functions may be provided by Company and/or applicable third party entities.

  1. Ownership

The Application consists of various graphics, texts, icons and buttons that have been provided by Company and/or other entities under our direction (e.g. application designers) or from whom we have a licence or permission.  All such content is owned by Company and/or the applicable third party entity. For greater certainty, Company and applicable third party entities hold all right, title, and interest in and to any and all content provided by such parties for the Application, including, without limitation, all such information in text, graphical, video and audio formats, images, icons, designs, trade-marks, brand names, information and software (collectively, the “Application Content”). You hereby acknowledge that the Application Content is protected by all copyright, trade-mark, and other applicable intellectual property laws. Your use of the Application does not grant or transfer to you any ownership or other rights in the Application or the Application Content, and except as expressly provided, nothing herein or within the Application shall be construed as conferring on you or any other person any license under any of Company’s or any third party’s intellectual property rights. Any rights not expressly granted to you in this Agreement are expressly reserved by Company or the applicable third party entity. For greater certainty, you agree that you will not take any action that is inconsistent with Company’s ownership of the Application and/or Company’s ownership of, or any third party’s ownership of, any Application Content. You are hereby expressly prohibited from removing any proprietary notice of Company, or any third party, from any copy of the Application or Application Content.

  1. Our License to You

Upon your acceptance of the terms and conditions of this Agreement, you will be permitted to install and use one (1) copy of the Application on your Android or IOS compatible mobile device (each a “Device”).  Subject to the terms and conditions in this Agreement, Company hereby grants you a limited, non-exclusive, royalty-free and revocable license to make personal and non-commercial use of the Application and its Application Content on a single mobile Device in executable, object code format only.  For greater certainty, this limited license only allows you to use the Application for your own personal and non-commercial use.  This limited license does not include any rights not specifically enumerated herein.  You agree not to take or permit any action with respect to the Application that is not expressly authorised under this licence

  1. Custom Meme Requirements

To be usable as a custom meme, – any photo you upload to the Application must meet the following specific requirements:

Type Maximum Acceptable Formats
Photo 500×500 pixels. Character limit of 50 words. .jpeg, .png

 

By uploading a photo to the Application, you warrant and represent that your photo:

i. is original to you and that you have all necessary rights (including, without limitation, consent of the photographer) in and to the photo to use it as a custom meme;

ii. does not violate any law, statute, ordinance or regulation;

iii. does not contain any reference to or likeness of any identifiable third parties, unless consent has been obtained from all such individuals and their parent/legal guardian if they are under the age of majority in their jurisdiction of residence (note: if you cannot obtain the consent of an individual appearing in your photo, then his/her face must be blurred out);

iv. will not give rise to any claims of infringement, invasion of privacy or publicity, or infringe on any rights and/or interests of any third party, or give rise to any claims for payment whatsoever; and

v. is not defamatory, trade libelous, pornographic or obscene, and further that it will not contain, depict, include, discuss or involve, without limitation, any of the following:

  • Nudity;
  • Explicit, graphic or excessive sexual activity;
  • Crude, vulgar or offensive language and/or symbols;
  • Derogatory characterizations of any ethnic, racial, sexual or religious groups;
  • Content that endorses, condones or discusses any illegal, inappropriate or risky activity, behaviour or conduct;
  • Personal information of individuals, including without limitation, names and addresses (physical or e-mail);
  • Conduct or other activities in violation of this Agreement;
  • Commercial messages, comparisons or solicitations for products or services;
  • Any identifiable third party products and/or trade-marks, brands or logos; and
  • Any other content that is or could be considered inappropriate, unsuitable or offensive, all as determined by the Company in its sole discretion.
  1. You Licence of Your Custom Memes to Us

By uploading a photo to the Application, you: (i) grant to the Company, in perpetuity, a world-wide, non-exclusive license to publish, display, reproduce, modify, edit distribute, broadcast, or communicate or otherwise use the photo, in whole or in part, for the purpose of administering the Application in accordance with these Terms; (ii) waive all moral rights in and to the photo in favour of the Company; and (iii) agree to release and hold harmless the Company and each of its respective agents, employees, directors, successors, and assigns (collectively, the “Releases”) against any and all claims based on publicity rights, defamation, invasion of privacy, copyright infringement, trade-mark infringement or any other intellectual property related cause of action.  The Company reserves the right, in its sole and absolute discretion, to modify, edit or remove any meme, custom meme, or photo, or to request any user to modify, edit or remove his or her meme, custom meme, or photo, if such meme, custom meme, or photo if is considered by Company to violate this Agreement, if a complaint is received with respect to such meme, custom meme, or photo, or for any other reason.

If you choose to use any Application features that may allow you to send messages or notifications to third parties, you must obtain their permission to provide their personal information, such as their name or email address, to Company, and the Application. You may only send messages to friends with whom you have had voluntary two way communications and with whom who you have a personal relationship based on shared interests, experiences, opinions and other relevant factors, or to family members with whom you have had voluntary two way communications and to whom you are related by legal parent/child relationship, marriage, or common-law partnership.

  1. Indemnification

At Company’s request, you agree to defend, indemnify, and hold harmless Company, its parent and other affiliated companies, and their employees, contractors, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including legal fees and disbursements) that arise from your use or misuse of the Application, violation of this Agreement, or violation of any rights of a third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses. In the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property right, we will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.

  1. Promotions

From time to time, we may offer a contest, sweepstakes, or other promotion that operates in conjunction with the Application (“Promotion”). Such Promotions may be subject to their own additional terms and conditions, which will apply to your participation in the Promotion, in addition to this Agreement.

  1. Confidentiality

The structure, organization and source code of the Application are the valuable trade secrets and proprietary confidential information of Company and its licensors.  You agree not to provide or disclose any such confidential information in the Application or derived from it to any third party.

  1. Restrictions

You may not:

  1. use, copy, modify, download or transfer the Application or any component of the Application (including, without limitation, the Application Content), in whole or in part, except as expressly provided in this Agreement;
  2. (i) reverse engineer, disassemble, decompile, or translate the Application; (ii) attempt to derive the source code of the Application; (iii) create any derivative work from the Application; and/or (iv) authorize or assist any third party to do any of the foregoing;
  3. rent, lease, loan, resell for profit, or distribute the Application, or any part thereof;
  4. remove or alter any proprietary notice or legend regarding Company’s, or any third party’s, proprietary rights in the Application;
  5. use the Application except in accordance with applicable laws and regulations; and/or
  6. use the Application: (i) to defraud any third party; (ii) to distribute obscene or other unlawful materials or information; and/or (iii) to disseminate or encourage conduct that could constitute a criminal offence or give rise to civil liability;
  1. Accuracy and Changes

Facts and information provided by Company on or through the Application are believed to be accurate when placed on the Application. Changes may be made at any time to the information or to the Functions of the Application without prior notice.

  1. Updates

As part of your use of the Application, you may from time to time receive updates to the Application from Company, which may be automatically downloaded and installed to your Device. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the Application. You expressly agree that Company, and its authorized suppliers, may automatically deliver such updates to you as part of the Application and you shall receive and install them as required. This Agreement does not imply any rights to future updates. However, if Company does provide you with any updates, such updates shall be subject to the terms and conditions of this Agreement or any agreement which accompanies such updates.

  1. Disclaimer and Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND APPLICATION CONTENT (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION) IS PROVIDED “AS IS” AND AS AVAILABLE WITHOUT ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES WHATSOEVER.THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE APPLICATION AND APPLICATION CONTENT RESIDES WITH YOU. COMPANY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DATA ACCURACY. Apple HAS NO warranty obligation whatsoever with respect to the Application.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT: (I) THE APPLICATION WILL BE COMPATIBLE WITH YOUR DEVICE AND SOFTWARE; (II) THE APPLICATION WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR ERROR; (III) THE USE OF THE APPLICATION, INCLUDING, WITHOUT LIMITATION, THE BROWSING AND DOWNLOADING OF ANY INFORMATION, WILL BE FREE OF ANY VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE, INTRUSIVE OR DISRUPTIVE COMPONENTS; (IV) THE TRANSMISSION OF INFORMATION TO AND FROM THE APPLICATION WILL BE SECURE; (V) THE USE OF THE APPLICATION WILL NOT INFRINGE THE RIGHTS (INCLUDING, WITHOUT LIMITATION, INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; OR (VI) THE USE OF THE APPLICATION WILL NOT CAUSE ANY DAMAGE TO YOUR DEVICE, SOFTWARE OR ELECTRONIC FILES.

ANY AND ALL INFORMATION CONTAINED ON OR WITHIN THE APPLICATION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO PROVIDE SPECIFIC ADVICE AND SHOULD NOT BE RELIED UPON IN THAT OR ANY OTHER REGARD.

ANY APPLICATION IS OFFERED IN JURISDICTIONS WHERE IT MAY BE LEGALLY OFFERED. THE APPLICATION AND THE INFORMATION OFFERED THROUGH IT IS NOT OFFERED TO ANYONE IN ANYONE IN ANY JURISDICTION IN WHICH SUCH AN OFFER CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH AN OFFER.

COMPANY WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES WHATSOEVER ARISING FROM, CONNECTED WITH, OR RELATING TO THE APPLICATION OR APPLICATION CONTENT. YOU EXPRESSLY ACKNOWLEDGE THAT COMPANY HAS ENTERED INTO THIS AGREEMENT WITH YOU AND MAKES THE APPLICATION AVAILABLE TO YOU, IN RELIANCE UPON THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN WILL SURVIVE, AND CONTINUE TO APPLY IN THE CASE OF THE FAILURE OF ESSENTIAL PURPOSE OF CONTRACT, THE FAILURE OF ANY EXCLUSIVE REMEDY, OR TERMINATION OF THIS AGREEMENT.

In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you  and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Company’s sole responsibility.

  1. Electronic Transmissions

The transmission of data or information over the internet or other forms of networks may not be secure, and is subject to possible loss, interception or alteration while in transit. Company does not assume any liability for any damage you may experience or costs you may incur as a result of any electronic transmissions over the internet, other forms of networks or otherwise while using the Application. In no event will the information you provide on or through the Application be deemed to be confidential, create any fiduciary obligations to you on our part, or result in any liability to you on our part in the event that such information is inadvertently released by us or accessed by third parties without your consent.  We ask that you please not send personal or financial information to us using unencrypted e-mail messages. While every effort is made to ensure that all software provided on the Application is suitable for use on a wide variety of mobile devices, you should take reasonable and appropriate precautions to ensure compatibility of the Application software with your specific mobile device.

  1. Privacy

Without limiting the generality of this Agreement, your use of the Application is also subject to the terms of our Privacy Policy, which is hereby incorporated into and made part of this Agreement.  Please carefully review our Privacy Policy.  By using the Application, you signify that you have read, fully understand and agree to be legally bound by our Privacy Policy.

  1. No Duty to Correct Errors

Without limiting the provisions of this Agreement, you acknowledge and agree that Company has no obligation under this Agreement to correct any defects or errors in the Application furnished to you under this Agreement, regardless of whether you inform Company of such defects or errors or Company otherwise is, or becomes aware of, such defects or errors.  To the extent Company provides you with any updates or upgrades to the Application, such updates and upgrades shall be deemed to constitute part of the Application and shall be subject to all terms and provisions set forth in this Agreement, including, without limitation, terms and provisions related to licenses, use restrictions, ownership and distribution of the Application.

  1. Trade-Marks and Copyright

Certain names, graphics, logos, icons, designs, words, titles or phrases contained within the Application, Information and/or Application Content may constitute trade names, registered or unregistered trade-marks or service marks (collectively, “Trade-marks”) of Company or other entities.  Trade-marks may be registered in Canada and in other countries as applicable. All Trade-marks not owned by Company are the property of their respective owners, and, where used by Company are used under license or with permission.  All Trade-marks are and shall remain the sole and exclusive property of their respective owner(s).  Any use of such Trade-marks, except as expressly provided for herein, without the express written consent of the applicable owner is strictly prohibited.  Nothing contained herein or on this Application may be construed as granting, by implication, estoppel, or otherwise, any license to use any Trade-mark(s).  You agree that you will not take any actions inconsistent with Company’s ownership of, or any third party’s ownership of, the Trade-marks.

  1. Governing Law and Jurisdiction

For users of the App who are not individuals resident in Quebec, this Agreement, your use of the Application, and all related matters shall be governed solely by the laws of the Province of Ontario, Canada and the applicable federal laws of Canada, without regard to the conflicts of law provisions of any jurisdiction. You hereby irrevocably submit to the exclusive jurisdiction of the courts of the Province of Ontario in the City of Toronto in relation to all disputes arising from or related to this Agreement, your use of the Application and any related matters.

For users of the App who an individual resident in Quebec, this Agreement, your use of the Application, and all related matters shall be governed solely by the laws of the Province of Quebec, Canada and the applicable federal laws of Canada, without regard to the conflicts of law provisions of any jurisdiction. You hereby irrevocably submit to the exclusive jurisdiction of the courts of the Province of Quebec in the City of Montreal in relation to all disputes arising from or related to this Agreement, your use of the Application and any related matters.

  1. Termination

If you breach any provision of this Agreement or our Privacy Policy you may no longer use the Application. We may, in our sole discretion, change, suspend or terminate, temporarily or permanently, the Application or any part thereof or any of its features at any time, for any reason, without any notice or liability to you or any other entity.  If this Agreement or your permission to use the Application is terminated by us for any reason, the agreement formed by your acceptance of this Agreement will nevertheless continue to apply and be binding upon you in respect of your prior use of the Application and anything relating to or arising from such use. If you are dissatisfied with the Application, then your sole and exclusive remedy is to discontinue using the Application.

  1. Export Controls

You acknowledge that the Application, Application Content, information and the underlying technology may be subject to applicable export jurisdiction.  You agree to comply with all applicable international and national laws that apply to the Application, Application Content, information and the underlying technology, as well as end-user, end use, and destination restrictions issued by Canadian and other governments.  By downloading or using the Application or the Information, you agree to the foregoing and you represent, warrant and covenant that you are not located in, under the control of, or a national or a resident of any country identified in any applicable legislation, regulation, deny order or prohibition list issued by any governmental or regulatory body, and that you will otherwise comply with all applicable export control laws.

  1. General

If any provision of this Agreement is held invalid or unenforceable by any court having competent jurisdiction, such provision shall be enforced to the maximum extent permitted by law, and the remaining provisions of this Agreement shall continue in full force and effect. No failure to exercise or waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or any other provision of this Agreement.  This Agreement is binding upon you, your heirs, executors, beneficiaries, successors and assigns and you may not assign this Agreement to any other party without our prior written consent, which consent may be withheld in our sole and absolute discretion.

 

 

If You have read OUR TERMS AND CONDITIONS and PRIVACY POLICY and agree to be legally bound by all OF the terms set out therein, select the  “I Agree” Button.  Otherwise, select “I Do Not Agree”.

[  ]  I Agree

[  ] I do not Agree

NOTE: You must click “I Agree” to install the Application.  If you click “I do not agree” the Application will not be installed.

 

TOR_LAW\ 8733280\3