Terms of Use Agreement & Privacy Policy

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING ANY WEBSITE SERVICES PROVIDED TO YOU BY CELLPHONIST INC. AS THEY CONTAIN BINDING LEGAL TERMS AND OBLIGATIONS.

Acceptance of Terms of Use

Please read all the terms and conditions carefully.

All website services provided to you by Cellphonist Inc.  ("Cellphonist") are provided to you subject to the following terms and conditions. By using any Cellphonist website (each a “Cellphonist Site” and collectively the “Cellphonist Sites”) or any products, content or services (collectively the “Services”) available on a Cellphonist Site, you agree, without limitation or qualification, to be bound by these terms and conditions (the “Terms and Conditions”) and such other additional or alternative terms, conditions, rules and policies which are displayed or to which you may be directed in connection with use of a Cellphonist Site or Service, all as may be modified by Cellphonist from time to time in accordance with these Terms and Conditions. If you do not agree with these Terms and Conditions, you may not use a Cellphonist Site or any of the Services. Change of notice will be deemed effective when posted on a Cellphonist Site. Your continued use of a Cellphonist Site or Service after any such changes are posted will constitute acceptance of those changes. Cellphonist reserves the right to change, modify, suspend, restrict access to or discontinue any aspect of a Cellphonist Site or Service from time to time without notice or liability and for any reason whatsoever.

Ownership

All materials displayed or otherwise available through a Cellphonist Site, including but not limited to, text, images, photographs, audio clips, video clips, computer software and code (collectively the “Content”) are protected under Canadian and foreign copyright laws and treaty provision and are owned by Cellphonist, and the Cellphonist Site is protected under copyright law as a collective work and/or compilation. Any use, reproduction, alteration, modification, public performance or display, uploading or posting onto the Internet, broadcast, transmission, redistribution, sale, publishing, caching, framing or other exploitation of a Cellphonist Site or of any Content, other than expressly set out herein, is prohibited without the express written consent of Cellphonist.

Trademarks

Cellphonist is a registered trademark and all associated designs and logos are trademarks of Cellphonist Inc. All other product, brand and company names, logos, trademarks, services marks, graphics used or mentioned on a Cellphonist Site may be the trademarks of third parties. Any use of any trademarks appearing on a Cellphonist site or any of the Services without the express written consent of the owner of the trademark is strictly prohibited.

Privacy

You agree that Cellphonist has the right, but not the obligation, to monitor Cellphonist Sites and the Services electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other government request, to operate a Cellphonist Site or any of the Services properly, or to protect itself or its users in accordance with applicable privacy legislation. Our Privacy Policy is provided later in this document.

Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF ANY CELLPHONIST SITE OR SERVICE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CELLPHONIST SITES OR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. AND THAT EACH OF CELLPHONIST, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, SUCCESSORS OR ASSIGNS (COLLECTIVELY THE “CELLPHONIST GROUP”) DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, TERMS, CONDITIONS AND ENDORSEMENTS (COLLECTIVELY THE “WARRANTIES”) OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY, SUITABILITY, RELIABILITY, FREEDOM FROM VIRUSES OR HARMFUL COMPONENTS; (b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CELLPHONIST GROUP MAKES NO WARRANTY THAT (i) THE CELLPHONIST SITES OR SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE CELLPHONIST SITES OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE CELLPHONIST SITES OR SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE CELLPHONIST SITES OR SERVICES WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF CELLPHONIST SITES OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL; AND (d) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE CELLPHONIST GROUP, A CELLPHONIST SITE OR THROUGH OR FROM ANY SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS AND CONDITIONS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE CELLPHONIST GROUP SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CELLPHONIST HAD BEEN ADVISED OR COULD HAVE SEEN THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH: (a) THE USE OR THE INABILITY TO USE THE CELLPHONIST SITES OR SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE CELLPHONIST SITES OR SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE CELLPHONIST SITES OR SERVICES; OR (v) ANY OTHER MATTER RELATING TO THE CELLPHONIST SITES OR SERVICES. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN TORT, NEGLIGENCE, STATUTE, CONTRACT, COMMON LAW, EQUITY OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING A CELLPHONIST SITE.

You expressly acknowledge that Cellphonist has entered into this agreement, and has and will make the Cellphonist Sites, Services and Content available to you in reliance upon the limitations and exclusions of liability and the disclaimers set forth in these terms and conditions, and that the same form an essential basis of the bargain between you and Cellphonist. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth in these Terms and Conditions will survive, and continue to apply in the case of, fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of your Paid Services Agreement or these Terms and Conditions.

Exclusions and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS CONTAINED IN DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL OUR LIABILITY EXCEED THE SUM OF $10 U.S. DOLLARS.

Responsibility for Minors

In cases where you have authorized a minor to use a Cellphonist Site or any of the Services, you recognize that you are fully responsible for: (i) the online conduct of such minor; (ii) controlling the minor's access to and use of a Cellphonist Site or any of the Services; and (iii) the consequences of any misuse by the minor. You acknowledge that Cellphonist has no obligation to monitor the Services or any Content accessible through the Cellphonist Sites.

Submissions and User Conduct

By posting, uploading or submitting any messages, content, files or other materials (collectively, “Submissions”) through any content gathering or submitting Service on a Cellphonist Site, you automatically grant (or automatically warrant that the owner of the rights to such material or content has expressly granted) Cellphonist a royalty-free, perpetual, non-exclusive, irrevocable, unrestricted, worldwide license to: (a) use, reproduce, store, adapt, translate, modify, make derivative works from, transmit, distribute, publicly perform or display such Submissions for any purpose; and (b) to sublicense to third parties the unrestricted right to exercise any of the foregoing rights. In addition to the grant of the above license, you hereby (a) agree to waive all moral rights in any Submission in favour of Cellphonist; (b) acknowledge and agree that Cellphonist is not responsible for any loss, damage, or corruption that may occur to your Submissions; and (c) acknowledge and agree that any Submissions you provide for display on the Web site will be considered non-confidential. As a condition of your use of a Cellphonist Site, you agree not to: (a) restrict or inhibit any other user from using and enjoying a Cellphonist Site, interfere or attempt to interfere with the proper workings of a Cellphonist Site or do anything which in the sole discretion of Cellphonist imposes an unreasonable or disproportionately large load on the Cellphonist infrastructure; (b) post, link to, transmit or otherwise distribute any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including, without limitation, any Submission constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate the legal rights of others; (c) post, link to, transmit or otherwise distribute any Submission, including, without limitation, articles, images, stories, software or other material, which violates or infringes upon the rights of others without first obtaining permission from the owner or rights holder; (d) post, link to, transmit or otherwise distribute any Submission that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, could be harmful to minors, harasses or advocates harassment of another person; (e) post, link to, transmit or otherwise distribute any Submission which solicits passwords or personal identifying information for commercial or unlawful purposes from other users; (f) post, link to, transmit or otherwise distribute any Submission which contains a virus, worm, trojan horse or other harmful or disruptive component, or provides or creates computer viruses; (g) post, link to, transmit or otherwise distribute junk mail, chain letters, unsolicited mass mailing or spam; or (h) use the Cellphonist Site for commercial purposes, including, without limitation, posting, linking, uploading or transmitting or otherwise distributing any Submissions which contain advertising, solicitations, which engage in commercial activities and/or sales, or which involve contests, sweepstakes, barter, advertising, and/or pyramid schemes.

Without limiting the foregoing, you may not resell or link to other sites for any commercial purpose whatsoever. We reserve the right to investigate and take appropriate legal action against anyone who violates this provision, including without limitation, removing the offending communication from the Cellphonist Sites and barring such violators from use of the Cellphonist Sites. We reserve the right to block access to Cellphonist Sites by any user known or reasonably believed to be utilizing automated means to process commercial uses (including sale of goods and services).

Cellphonist reserves the right to refuse to post, to edit, or to remove any Submissions in whole or in part, that in its sole discretion are in violation of these Terms and Conditions or otherwise objectionable. You acknowledge and agree that Cellphonist may, in its sole discretion, monitor the Cellphonist Sites periodically and disclose any information as necessary to satisfy any law, regulation or other governmental or Court request, to operate the Cellphonist Site properly or to protect itself or other users of the Cellphonist Sites. Cellphonist is not responsible for the content of any Submission and the Submissions represent the views and opinions of the person(s) making the Submission and do not represent the views or opinions of Cellphonist.

Downloads

Certain Cellphonist Sites allow you to download software applications or other forms of Content, including files, images and/or data incorporated therein (collectively, the "Software"). The Software is made available to you by Cellphonist or third parties subject to the terms and conditions made available to you during the software installation process. Additionally, you agree that the Software is licensed to you by Cellphonist or third parties for your personal and non-commercial use only provided that you do not modify the Software and that you maintain all copyright and other proprietary notices and that Cellphonist or the designated third parties retain full and complete title to the Software and all intellectual property rights therein. You may not redistribute, sell, de-compile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form. You agree that it is your responsibility to review and evaluate the Software and the related terms and conditions, and that all risk associated with the use of, or reliance on, the Software rests with you. You further agree that the Cellphonist Group, including its suppliers, to the maximum extent permitted by law, makes no warranties regarding the Software, and will not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with your use of, or reliance on, the Software, including the failure of the Software to meet your needs, standards, expectations or specifications.

Content Linked to a Cellphonist Site

Certain links on the Cellphonist Sites may take you to other websites. Cellphonist provides these links only as a convenience and not as an endorsement by Cellphonist. These linked sites are not necessarily under the control of Cellphonist. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements. Cellphonist is not responsible for the content of any such linked sites or any other web page which are not part of a Cellphonist Site and under Cellphonist's control. Unless otherwise expressly provided, Cellphonist makes no representation or warranty regarding, and does not endorse, any linked site or the information, products or services appearing thereon. Accordingly, you agree that Cellphonist will not be responsible or liable in any way for the accuracy, relevancy, copyright compliance, legality, or decency of material contained in any site linked from a Cellphonist Site, the use of any personal information that you provide to such linked site by the operator(s) of such linked site, or your acceptance of any cookies or similar identifying information that you provide to such linked site.

Dealing With Third Parties

You acknowledge and agree that your correspondence or business dealings with any third parties, including any merchants or advertisers, found on, or through, a Cellphonist Site or any of the Services, including payment for and delivery of related goods and services, and all other terms, conditions, representations and warranties related to such dealings, are solely as between you and such third parties. The Cellphonist Group assumes no responsibility whatsoever for any charges you or any user of your account incurs when making purchases or other transactions in this manner. Further, the responsibility for ensuring compliance with all applicable laws in connection with any such transactions will be yours alone. You agree that the Cellphonist Group will not be responsible or liable in any way for any loss or damage of any kind incurred as a result of, or in connection with, any such dealings or transactions. Governing Law

All Cellphonist Sites and Services are controlled, operated and administered by Cellphonist from its offices within Canada. Cellphonist makes no representation or warranty that a Cellphonist Site or any of the Services are appropriate or available for use at any locations outside Canada. If you access a Cellphonist Site from outside Canada, you are responsible for compliance with all applicable laws. You may not export any of the Content accessible through a Cellphonist Site in violation of applicable export laws and regulations. These Terms and Conditions shall be interpreted, construed and governed by the laws in force in the Province of Ontario, and the federal laws of Canada applicable therein, without reference to its conflict of laws principles. Subject to the Arbitration and Actions paragraph contained in these Terms and Conditions, each party hereby agrees to submit to the jurisdiction of the courts of the Province of Ontario and the Federal Courts situate therein, and to waive any objections based upon venue. Arbitration and Actions

Except where prohibited by applicable law, any controversy, claim or dispute arising out of or relating to these Terms and Conditions, your use of any Cellphonist Site or Service or the relationship which results from these Terms and Conditions, including without limitation, the performance, breach, enforcement, existence or validity of the matters provided for in these Terms and Conditions which cannot be amicably resolved, even if only one of the parties declares that there is a difference (collectively, a "Claim"), will be referred to and finally settled (to the exclusion of the courts) by private and confidential binding arbitration before a single arbitrator held in Toronto, Ontario in English and governed by Ontario law. The arbitrator shall be a person who is legally trained and who has experience in the information technology field in Canada and is independent of either party. Any such Claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim, controversy or dispute of any other party. Except where prohibited by applicable law, you agree to waive any right you may have to commence or participate in any class action against us related to any Claim and, where applicable, you also agree to opt out of any class proceedings against us. Notwithstanding the foregoing, Cellphonist reserves the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts.

Termination

You agree that Cellphonist, in its sole discretion, may without notice, suspend, bar access to, or terminate your use of the Cellphonist Sites or Services, and remove and discard any Submitted Content within the Service at its convenience, or for any reason, including, without limitation,if Cellphonist believes that you have violated or acted inconsistently with the letter or spirit of the Terms and Conditions. Cellphonist may also in its sole discretion and at any time discontinue providing the Cellphonist Sites or Services, or any parts of the Cellphonist Sites or Services without notice. You further agree that Cellphonist shall not be liable to you or to any other person as a result of any such suspension or termination. If you are dissatisfied with a Cellphonist Site or any of the Services or with any terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the Cellphonist Site or Services in question. Indemnification

You agree to defend, indemnify and hold harmless each member of the Cellphonist Group and each of their respective officers, directors, employees and agents, including all third parties mentioned on a Cellphonist Site, from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (a) your breach of any of these Terms and Conditions; (b) your access to or use of a Cellphonist Site, Services or Content; or (c) your use or reliance on, or publication, communication or distribution of anything on or from a Cellphonist Site or through any of the Services. You will use your best efforts to cooperate with the Cellphonist Group in the defense of any claim. The Cellphonist Group reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. Treatment of User Comments

While Cellphonist appreciates all feedback, suggestions and ideas (“Comments”) , under no circumstances will any disclosure to Cellphonist be subject to any obligation of confidentiality or expectation of compensation. By submitting the Comments to Cellphonist, you are waiving any and all rights that you may have in the Comments and that Cellphonist is free to implement the Comments if it so desires without obtaining permission or license from you or providing compensation.

General Provisions

These Terms and Conditions you have entered into are personal to you, and you may not assign your rights or obligations to anyone. These Terms and Conditions constitute the entire agreement between Cellphonist and you pertaining to your use of a Cellphonist Site, Services and Content and supercede any prior agreements between you and Cellphonist with respect to the subject matter hereof. Cellphonist's failure to insist upon or enforce strict performance of any right or provision of these Terms and Conditions will not constitute or be construed as a waiver of any right or provision. If any of the provisions (or parts thereof) contained in these Terms and Conditions are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination will not affect the remaining provisions (or parts thereof) contained herein. Except where prohibited by applicable law, any cause of action you may have with respect to your use of the Cellphonist Sites or which is the subject of these Terms and Conditions must be commenced within one (1) year after the claim or cause of action arises. The parties have required that these Terms and Conditions and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s'y rattachent soient rédigés en anglais.

Privacy Policy

Cellphonist's privacy policy adheres to the Personal Information Protection and Electronic Documents Act (the “Act”) unless exempted by law or under the Act. We reserve the right to disclose information to third parties about usage of the Cellphonist Sites in a form that does not reveal your personal identity.

Cellphonist uses your IP address to administer our Site, to help diagnose problems with our server, and to gather broad aggregated information for purposes of tailoring our visitor's experiences on our site and sharing this broad information with advertisers. The Site contains links to third party sites. Cellphonist is not responsible for the privacy of the content of such websites.

You are reminded that information disclosed in forums, message boards and chat rooms becomes public information so exercise caution when disclosing personal information.

Use of Cookies
Cellphonist uses a browser feature called a "cookie" to collect information anonymously and track user patterns on our website. A cookie is a small text file that is placed on your hard disk by a website. "Cookies" contain a unique identification number that identifies your browser, not you, to our computers each time you visit our website. The use of cookies is an industry standard and many major browsers allow them by default. You can reset your browser to either refuse to accept all cookies or to notify you when a cookies is received; however, if you refuse to accept cookies you may not be able to access some parts of the Site.

Cookies are used by us to estimate our audience size for systems management and advertising purposes; to determine your browser so we can tailor the site for your browser's requirements, and if you have registered with us, for us to be able to remind us who you are. Advertisers that place ads on our website may use cookies.  


Cellphonist adheres to the following principles of fair information practices:
Principle 1 - Accountability
Cellphonist is responsible for the personal information under its control and shall designate one or more individuals who shall be accountable for the company's compliance with the procedures and principles set out in the Cellphonist Privacy Policy.

Principle 2 - Identifying Purpose
Cellphonist will identify the purpose for which personal information is collected at or before the time the information is collected. The purposes for which information is collected, used or disclosed by Cellphonist must be those that a reasonable person would consider appropriate in the circumstances.

Principle 3 - Consent
The knowledge and consent of the individual are required for the collection, use or disclosure of personal information, except where consent is not required by privacy legislation.

Principle 4 - Limiting Collection
Cellphonist shall limit the collection of personal information to that which is necessary for the purposes identified by the company. Personal information sahll be collected by fair and lawful means.

Principle 5 - Limiting Use, Disclosure and Retention
Personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law. Personal information shall be retained only as long as necessary for the fulfillment of the purposes for which it was collected.

Principle 6 - Accuracy
Personal information shall be as accurate, complete and up-to-date as is necessary for the purposes for which it is used.

Principle 7 - Safeguards
Personal information shall be protected by security safeguards appropriate to the sensitivity of the information.

Principle 8 - Openness
Cellphonist shall make readily available to its customers and employees specific information about its policies and practices relating to the management of personal information.

Principle 9 - Individual Access
Upon request, an individual shall be informed of the existence, use and disclosure of his or her personal information and shall be given access to that information except where Cellphonist is permitted or required by law not to disclose personal information to the individual customer or employee. An individual customer or employee shall be able to challenge the accuracy and completeness of the information disclosed to him or her and have it amended as appropriate.

Principle 10 - Challenging Compliance
An individual customer or employee shall be able to address a challenge concerning compliance with the principles of the Cellphonist Privacy Policy to the Privacy Compliance Officer.

Cellphonist's Privacy Compliance Officer can be contacted by email at privacy@cellphonist.com or by mail to: Privacy Compliance Officer, Cellphonist Inc., Suite 850, 36 Toronto Street, Toronto, ON Canada M5C 2C5. If your privacy concerns are not addressed to your satisfaction you may contact the Office of the Privacy Commissioner of Canada at 613-995-8210 or through their web site at www.privcom.gc.ca.