TERMS OF SERVICE

Dated:   September 25, 2017

INTRODUCTION AND DEFINITIONS

Welcome to Cronometer!  The following terms and conditions of use and end user license agreement (the “Terms”) constitute an agreement between you, or if you are under the age of majority in your local jurisdiction, your parent or legal guardian (collectively, "user", “you” or "your") and Cronometer Software Inc. and its affiliates and subsidiaries (collectively, “Cronometer”, "our", “us” or “we”). These Terms govern your use of and access to the Site and/or Services (each as specified below) and are a legally binding agreement between you and Cronometer.

"Content" means any expression fixed in a tangible medium and includes, without limitation, ideas, text, comments, video, audio, images, graphics, designs, drawings, animations, logos, trademarks, copyrights, information, data, software, scripts, executable files, recipes, workouts, likes, activities, maps, routes, nutritional information and data, and any intellectual property therein, any of which may be created, submitted, or otherwise made accessible on or through the Site and/or Services.

"Cronometer Content" means all Content that is not User Generated Content.

“Services” means all services accessed through the Site;

"User Generated Content" or "UGC" means any material whatsoever that a user, including you, submits, creates, transfers or otherwise makes available by access to the Site or through the Services, including but not limited to messages, information, images, data or in-media screen shots, video, audio or other Content posted in any public or private area within the Site or through the Services; and

“Site” means cronometer.com its subdomains and/or Cronometer's mobile applications.

ACCEPTANCE OF THESE TERMS AND REVISIONS

You should carefully review these Terms and Privacy Policy  as they are a legally binding agreement between you and Cronometer, if you do not agree with them, you are not permitted to access or use the Site and/or Services and you should exit the Site, cease using the Site and/or Services immediately and, if you have downloaded or installed any of the Content on to your devices, uninstall the Content from such devices immediately.

By accessing the Site, submitting information to us (regardless of whether you register an account with us) or downloading, installing or using any of the Content or Services constitutes your agreement to these Terms and you consent to the collection, use and disclosure of information as described in these Terms and our Privacy Policy which is incorporated into and forms a part of these Terms. If you do not agree to these Terms you must not submit information to or register an account with us, access the Site or download, install or use any of the Content or Services.

We reserve the right, acting in our sole discretion and at any time, to revise these Terms, including the Privacy Policy. We will give you notice of such revisions by posting the revisions to the Site. It is your responsibility to ensure that you are aware of the current Terms when you access or use the Site and/or Services. If you or a Permitted Minor (defined below) continue to access or use any of the Site and/or Services after any revisions to these Terms are posted you and/or the Permitted Minor will be deemed to have accepted those revisions.


 

HARDWARE, SOFTWARE AND CONNECTIVITY

You are responsible for maintaining an account with any social networking service through which you connect to the Site and Services, necessary to connect to the Site and Services, and you are responsible for any fees, including internet connection, mobile data services and similar third party fees that you incur when accessing the Site and/or Services.

1.              USE OF SERVICES AND YOUR ACCOUNT

(a)            Who can use the Services

The Site and Services are not intended for and should not be used by Children under the age of 13.

If you are under the age of majority in your local jurisdiction and your parent or legal guardian has not accepted these Terms, you are not permitted to access or use the Site and/or Services and you must exit the Site, cease using the Site and/or Services immediately until your parent or legal guardian has accepted these Terms.

Cronometer requires that all users of the Site and/or Services adhere to these Terms.  Please note that all persons who are under the age of majority in their local jurisdiction must have their parent or legal guardian accept these Terms on their behalf and take full responsibility for compliance with these Terms by all persons who access or use the Site and/or Services and for whom they are legally responsible.

By accessing or using the Site and/or Services and/or permitting access to the Site and/or Services by a person below the age of majority in your local jurisdiction (each a “Permitted Minor”), and/or by clicking a box or button, or allowing a Permitted Minor to click a box or button, that states that you accept or agree to these Terms, you confirm your acknowledgment and acceptance of these Terms and you hereby guarantee that such Permitted Minor shall adhere to these Terms.

If you are a Permitted Minor or otherwise under the age of majority in your local jurisdiction, you represent and warrant that your parent or legal guardian has accepted these Terms and has guaranteed your adherence to these Terms.

(b)           User Accounts and Security

In order to access and use certain features of the Site, and/or Services you may be required to register an account (the “Account”) through the Site or Services.  When you register or update an Account, you will be required to provide us with certain personal information, which may include your e-mail address and/or payment information, to select a user name and password (the “Login Information”), and to grant express consent to Cronometer to contact you through the e-mail address provided.  This Login Information will be retained and used by Cronometer in accordance with its Privacy Policy. You agree that all Login Information provided by you will be accurate and complete and that you will promptly update such Login Information if and when it changes.

You are responsible for protecting the confidentiality of your Login Information, and for restricting access to your computer, device or media system platform, and you agree to accept responsibility for all activities that occur under your Account.  You are not permitted to share your Account(s) or Login information or to allow any other person to access to your Account(s).  You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Login Information or your Account(s), or any other security breach involving your Account(s) or the Site and/or Services at support@cronometer.com.  We are not responsible for any unauthorized access of your Account(s) or Login Information even if you have advised us of a such.  You are responsible for all activities that occur under your Account(s), including but not limited to purchases, whether or not such activities have been authorized by you.  Cronometer strives to ensure the security of user’s data, UGC and accounts, however, we cannot guarantee that unauthorized third parties will not circumvent our security measures.

We hereby apprise you that leaving your Cronometer application or webpage open, however convenient, poses a security risk for you and/or any Permitted Minor and we strongly recommend that you logoff and exit the Account at the end of each session.

(c)            User Names

Your user name may be publicly visible in certain areas of the Site and/or Services.  For this reason, you should avoid choosing a user name that could compromise the security of any of your personal information. We reserve the right to reject and/or remove any user name and to require you to choose a different user name at any time, for any reason, and acting in our sole and absolute discretion, including but not limited to a third party claim that the user name violates its rights.  You agree that you will not select or use a user name that is the name of, or makes reference to, another person or entity for the purposes of impersonating that person or entity or for falsely creating the appearance that you are associated with the person or entity. Furthermore, you agree that you will not select or use a user name: (i) in which another person or entity has legal rights unless you have that person or entity’s express permission to do so; or (ii) that a reasonable person would consider to be offensive.

(d)           Accessing your Account(s)

Each time that you and/or a Permitted Minor log into and access an Account, you represent and warrant that:

(i)     you are the person who registered the Account or are a Permitted Minor of such person;

(ii)   all of the personal information registered in connection with the Account is current, complete and accurate;

(iii)  you and/or the Permitted Minor are accessing the Site and using the Services solely for lawful purposes and in strict compliance with these Terms;

(iv)  you and/or any Permitted Minor are accessing the Site and/or Services solely for your own personal, non-commercial purposes;

(v)    you are not, and are not acting on behalf of, any competitor or prospective competitor of Cronometer or its affiliates or subsidiaries;

(vi)  you and/or any Permitted Minor are not accessing the Site and/or Services for the purposes of any dispute or litigation involving Cronometer or its affiliates or subsidiaries; and

(vii) you and/or any Permitted Minor are not accessing the Site and/or Services for any illegal purpose or to advertise, solicit or communicate with other users for any commercial purpose.

(e)            Updates and Discontinuance of Site or Services

You acknowledge and agree that the Site and Services are under continual development and may include public patches and/or updates, which are generally available to all users, or private patches and/or updates which are available to a smaller number of users for testing and feedback before being made generally available.  You further acknowledge and agree that you may be required to accept public patches and updates to the Site and/or Services from time to time in order to continue to access the Site and/or Services and your related Account(s).  You acknowledge and agree that Cronometer may update, modify, patch and/or discontinue any aspect of the Site and/or Services, by remotely installing updates and patches or otherwise, without your consent or approval and with or without prior, or any, notice to you and that the Terms apply to those updates and modifications.  We do not have any obligation to provide updates or modifications or to continue to provide particular Services.

You acknowledge that it may be necessary for you to update or upgrade third party software, hardware and devices from time to time in order to continue to access and use the Site and/or Services and your related Account(s).  Cronometer reserves the right to modify or increase the system specifications necessary to access and use the Site and/or Services at any time and without notice and you are responsible for purchasing any necessary additional technology, systems or services in order to continue to access and use the Site and/or Services and/or your related Account(s) in the event of any change in the system specifications.

Cronometer reserves the right, at any time and without notice or liability to you, to update, modify and/or reset certain parameters of the Site and/or Services any of which may impact the status, progress or achievements of items or features under your control or associated with your Account(s). 

(f)            Changes to Cronometer

Cronometer reserves the right, acting in its sole discretion and with or without prior notice to you, to do any of the following:

(i)     modify, suspend or terminate operation of, or access to, any portion, features or functions of the Site and/or Services including, but not limited to, hours of availability, geographical availability and applicable policies or terms;

(ii)   make changes to any fees or charges, if any, related to your use of the Site and/or Services;

(iii)  make changes to the equipment, hardware or software required to use and access the Site and/or Services; and

(iv)  interrupt the Site and /or Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction or other modifications.

(g)           Service Monitoring and Suspension

Cronometer  may monitor, terminate or suspend your Account or our Services at any time.

Cronometer may immediately, and without prior notice, terminate your ability to access the Site and/or Services or portions thereof for any reason including, without limitation: (i) if you or any Permitted Minor violate or otherwise fail to strictly comply with any term or provision of these Terms, (ii) if we have determined that your use has created or potentially created risk or legal exposure for Cronometer, or (iii) in response to requests by law enforcement or other government agencies.  Upon termination of these Terms for any reason, you must cease use of your Account(s), cease accessing the Site and Services and promptly destroy all electronic and other copies of all Content, including all related documentation.

You acknowledge and agree that any termination or suspension of your Account may be made by us in our sole discretion and that we shall not be liable to you or any third-party for any termination or suspension of your Account, your access to the Site or Services or for the removal of any of the materials uploaded or contributed by you to the Site.

(h)           Consent to Receive Communications

You consent to receive electronic communications from Cronometer either in the form of email sent to you at the email address listed on your Account or by communications posted on the Site. You acknowledge and agree that any electronic communication in the form of such email or posting on the Site shall satisfy any legal requirement that such communication be in writing. 

Upon registering an Account, you may receive email communications regarding the operations of our Services.  You cannot opt out of receiving these communications while you continue to use our Services.  You may also receive promotional emails while you use our Services.  You can opt out of these emails at any time by using the unsubscribe feature located in the footer of such email or by managing your Account settings accordingly.  You may also receive messages and other electronic communications from other users.  You can manage the communications you receive from other users in our Services by managing the settings on your Account(s).

(i)             Data Collection and Ownership

Cronometer may collect data which is anonymous and associated with your computer, mobile device, and/or media system platform and which includes, but is not limited to, your city, actions you take within and outside the Services, your hardware/software/firmware, the browser you use, the date and time of your use of the Services, your in-media time, activities, purchases, badges, and in full compliance with HIPAA and Privacy laws, and on an aggregated and anonymous basis, your diary entries, data and notes, recipes, targets and profile ("Usage Data").  You agree that your contribution to the Usage Data will be owned by Cronometer without providing compensation to you or any other person and without any liability whatsoever.

2.              PAYMENT TERMS -PREMIUM SERVICES (Gold and Professional Editions)

If you choose to subscribe to any of our premium Services, these are the payment and billing terms that apply. Paid services and billing will auto-renew unless you cancel. You may cancel at any time.

(a)            Payment Terms

We offer certain premium versions of the Services (e.g. Gold Edition and Professional Edition) (the “Premium Services”) for a fee. By subscribing for any of the Premium Services, you agree to our Terms, and any additional terms and conditions that are provided here.

The Premium Services provide you access to certain enhanced services, features and functionality (including, for example, a free mobile app, enhanced trends and analysis, an ad-free browsing experience, the ability to link accounts with friends, our "Ask the Oracle" which recommends best food for nutrients and priority support). By subscribing for and using the Premium Services, you agree to pay any fees or other incurred charges that apply to the Premium Services (such as subscription fees).  When you subscribe for the Premium Services, you must designate and provide information about your preferred payment method (“Payment Method”). This information must be complete and accurate, and you are responsible for keeping it up to date. You hereby expressly authorize us to collect from your Payment Method the appropriate fees charged for the Premium Services and for any other purchases you elect to make via the Premium Services.  You can choose to pay for the Premium Services on a monthly, biannual or annual basis. All fees due for the Premium Services are payable in advance, and will be billed automatically to the Payment Method at the start of the monthly, biannual or annual Premium Service period, as applicable. Unless otherwise stated, Premium Services will auto-renew until you elect to cancel your access to Premium Services.

When you provide any payment account information to Cronometer, you represent to Cronometer that you are the authorized user of that payment account.

(b)           Termination and Cancellation of Premium Services

If you do not pay the fees or charges due for your use of the Premium Services, we may make reasonable efforts to notify you and resolve the issue; however, we reserve the right to disable or terminate your access to the Premium Services with or without notice to you.

You may cancel your subscription to the Premium Services at any time through your Account settings or by submitting a cancellation request to us via email at: support@cronometer.com.  The cancellation of a Premium Service will go into effect at the end of your current billing cycle, and you will have the same level of access to the Premium Service through the remainder of such billing cycle. For example, if you are billed on a monthly basis and cancel during a given month, you will be charged for the entirety of that month and maintain access to the Premium Service through the end of that month.

There are no refunds for termination or cancellation of your Premium Service. Cronometer reserves the right, but without any obligation, to review its no refund policy upon request and on a case by case basis.


 

(c)            Fee Changes

To the maximum extent permitted by applicable laws, we may change the fee we charge for Premium Services at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the applicable Premium Service and/or by sending you an email notification. If you do not wish to pay the new fee, you can cancel the applicable Premium Service prior to the change going into effect.

(d)           Refunds, Renewal and Cancellation

When you sign up for a recurring subscription, membership or other ongoing Services, you have the right to cancel the recurring arrangement in writing within seven (7) calendar days after you first entered into the recurring arrangement and you will receive a full refund of any fees paid within thirty (30) days.  If however, you access, download, install or use the Services related to the recurring arrangement, you lose your right to withdraw from or cancel the recurring arrangement and your fees are non-refundable.  The period for any auto-renewal or recurring arrangement will be the same as the period you originally ordered unless otherwise disclosed to you at the time of purchase.  The charges made in connection with any auto-renewal or recurring arrangements will also be at the same rates as were in effect at the time of your original order unless we give you prior notice of any change to such charges before such charges are made for any subsequent renewal period.  If you cancel an auto-renewal or recurring arrangement after the seven (7) day cancellation period or after you have accessed, downloaded, installed or used the Services you ordered, you will not be entitled to a refund and the cancellation will be effective at the end of the then current recurring period unless you request an earlier termination date in writing.  Cancellation requests must be submitted by email to Cronometer at: support@cronometer.com

(e)            Gift, Discount or Coupon Codes

If you have received a gift, discount or coupon code (a "Code") to a Premium Service, the following terms and conditions apply in addition to the terms and conditions of the specific Code.  To redeem a Code, log in to the applicable edition and enter the applicable Code in the subscription process.  All Codes can only be applied to Accounts that are not already subscribing to Premium Services.  Codes cannot be exchanged, refunded or redeemed for cash or payment of Accounts.  You are responsible to use a Code before it expires and expired Codes cannot be refunded or extended.  You are also responsible for cancelling or terminating the Premium Service before the end of the free or a discounted period if you do not want to continue with the Premium Service at the regular price.  Cronometer may cancel Codes at any time without any liability or responsibility to compensate the Code holder whatsoever.

(f)            Promotional Accounts

You acknowledge that we may, but are not obligated to, offer certain accounts on a trial and/or promotional basis (a "Trial Account").  You further acknowledge and agree that we may limit the number and usage of such accounts in our sole and absolute discretion.  If you have acquired a Trial Account, you agree that we may solicit your Feedback (defined below) concerning your use of the Site and/or Services and your user experience.  Trial Accounts may have limited access to the Site and/or Services.  In order to obtain full access to the Site and/or Services, you may be required to purchase and/or subscribe to certain Services.

3.              PRIVACY

(a)            Your Privacy

Our Privacy Policy explains how we collect, use and disclose information that pertains to your privacy.  The Privacy Policy forms part of the Terms with you and is incorporated herein.  For full details, please refer to our Privacy Policy.  By providing personal information via the site you agree that we will collect, use and disclose your personal information as is necessary to operate the Site and/or Services and to manage the Privacy Policy and these Terms.

You acknowledge and agree that by providing Cronometer with any personal or proprietary user information through the Site and/or Services you consent to the transmission of such personal or proprietary user information over international borders as may be necessary for processing in accordance with Cronometer’s standard business practices. You should be aware that Linked Sites (defined below) and any third party services which you may use to access the Services may contain transmission of personal data provisions and be subject to privacy policies that differ from Cronometer's Privacy Policy. Cronometer is not responsible for the policies of, or for the storage, handling or transmission practices or treatment of your personal information by Linked Sites and expressly disclaims any and all liability related thereto.

4.              CONTENT OWNERSHIP AND USE

(a)            Trademarks, Logos and Cronometer's Branding

The trademarks, logos, signs, symbols, images and brands (“Marks”) displayed on the Site are the property of Cronometer and/or our partners and third party licensors. You are prohibited from using any Marks for any purpose including, but not limited to, use as metatags on other pages or sites on the Internet without the written permission of Cronometer or such third party which may own the Marks, which permission may be withheld in the sole discretion of the owner of the relevant Marks. All Content available on or through the Site and/or Services is protected by copyright and/or other intellectual property laws. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or using any Content for commercial and/or public purposes.

(b)           Ownership of User-Generated Content

You acknowledge that you are responsible for the User-Generated Content that you submit, upload, post or otherwise make available on or through the Site and/or Services, and that you, and not Cronometer, have full responsibility for each such submission you make, including its legality, reliability, appropriateness, and trademark, copyright and other intellectual property ownership. Before creating User-Generated Content, you must ensure that you either own all intellectual property rights or are otherwise in a position to grant a license (as defined below) to Cronometer.

(c)            Suggestions and Feedback

You agree that any and all creative ideas, concepts, notes, drawings, suggestions, feedback or other information that you may provide to Cronometer, whether solicited or unsolicited, as a user or otherwise, ("Feedback") will be owned by Cronometer, without providing compensation to you or any other person and without any liability whatsoever, including all intellectual property rights therein and you hereby irrevocably assign all intellectual property rights throughout the world and in perpetuity in and to the Feedback to Cronometer and waive all moral rights you may have therein.  Upon request from Cronometer and at Cronometer’s expense, you will fully cooperate and assist with, execute and deliver all further documents to enable Cronometer to document, acquire, apply for, prosecute, perfect or enforce any intellectual property rights in the Feedback.  If for any reason Cronometer is unable to secure any necessary documentation from you to effect the foregoing further assurances, then you irrevocably designate and appoint Cronometer and its duly authorized officers and agents as agent and attorney in fact, to act for and on your behalf for the purpose of documenting, acquiring, applying for, prosecuting, perfecting or enforcing such intellectual property rights in the Feedback.

Feedback may be posted on our Forums under "Feature Requests" or submitted via email at: support@cronometer.com.

(d)           User-Generated Content Retention

You acknowledge and accept that when you make something publicly available on the Internet, it becomes practically impossible to take down all copies of it in the future.

Following termination of your Account, or if you remove any User-Generated Content from the Services, we may retain your User-Generated Content for a commercially reasonable period of time for backup, archival, or audit purposes, or as otherwise required or permitted by law. Furthermore, Cronometer and its users may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute any of your UGC that otherwise has been stored or shared through Cronometer. Accordingly, the license to your UGC below continues even if you stop using the Services. When you post something publicly, others may choose to comment on it, making your UGC part of a social conversation. For more information, please review our Privacy Policy.

(e)            Limited End User License

Subject to your strict compliance with these Terms, Cronometer hereby grants you a limited, revocable, non-exclusive, personal, non-transferable license, without the right to sublicense, to access and use the (i) Site, and (ii) Services which you have downloaded, installed, purchased or subscribed for, as applicable, on a single computer, mobile device or media platform("License").  You shall not acquire any ownership rights in the Cronometer Content or in any of the Services or the Site.  Except as expressly permitted under these Terms you will have no rights to, either directly or indirectly, own, use, loan, sell, rent, lease, license, sublicense, assign, copy, translate, transmit, modify, adapt, enhance, improve, create any derivative works from the Site, and/or Services, disclose any part or feature of the Site, and/or Services that Cronometer has not publicly disclosed, or to display, distribute, publicly perform or any other way exploit, the Site, Services or the Cronometer Content in whole or in part.  You acknowledge and agree that we may modify, suspend or remove any Content or features of the Site, and/or Services at any time.

For further certainty, you hereby acknowledge and agree that the nutritional data and information made available to you under the License is Cronometer's exclusive property and is of essential value to Cronometer and you shall not aggregate and/or republish, in whole or in part, any of the nutrition data and information.

(f)            End-User License Term

The term of your License commences on the date of your acceptance of these Terms and shall end on the earlier date of your or Cronometer’s suspension or termination of your Account.  Your License shall terminate immediately, automatically and without notice if you attempt to circumvent any technical protection measures used in connection with the Site and/or Services or you otherwise breach these Terms.

(g)           Grant of License in User-Generated Content to Cronometer

In exchange for your access to and use of the Site and/or Services, and to the extent that your UGC gives rise to any copyright or other intellectual property right, you hereby grant Cronometer an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to exploit your UGC in any way and for any purpose in connection with the Site and/or Services, including without limitation, the right to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your UGC without notice or compensation to you of any kind for the whole duration of protection granted applicable intellectual property rights under applicable laws and international conventions. You hereby irrevocably waive your moral rights to any and all assets, arising from or connected with such rights, by you and other users in connection with the Site and/or Services under applicable law. The license granted to Cronometer hereunder and the waiver of moral rights above will survive any termination of these Terms.

5.              INTELLECTUAL PROPERTY RIGHTS

(a)            Cronometer's Intellectual Property

Cronometer's trademarks, service marks, names, logos and domain names (collectively, our "IP"), and the look and feel of the Site are our property. All right and title in and to the IP is and will remain the property of Cronometer and your access to the Site and use of the Services is subject to the Terms, including the License.

In using our IP, you must not:

(i)     display our IP in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Cronometer, or that can be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of, Cronometer or Cronometer's personnel;

(ii)   display our IP on your site if your site contains or displays adult content or promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under 21 years of age;

(iii)  display our IP as the most prominent element or the Cronometer logo as the largest logo (except as displayed in the image itself) on any page of your site;

(iv)  use our IP to disparage Cronometer or our Services or display our IP in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to Cronometer;

(v)    display our IP on a site that violates any law or regulation; or

(vi)  remove, distort or alter any element of any of our logo or any of our trademarks (this includes squeezing, stretching, inverting, discoloring, etc.).

(b)           Third Party Intellectual Property Rights

You represent and warrant that all User-Generated Content of any kind that is uploaded to or transmitted through the Site, and/or Services will not violate or infringe upon the rights of any third party including, but not limited to, any trade secret, copyright, trademark, trade dress, patent, privacy, confidentiality or other personal or proprietary rights of any such third parties.  You further represent and warrant that your use of any user names attached to your Account will not violate or infringe upon the trademark, trade dress or other proprietary rights of any third party.  Without limiting any other rights and remedies of Cronometer, Cronometer may suspend the operation and use of any user names where it determines that the continued use of the user name will infringe on the proprietary rights of any third party.  Cronometer may terminate the Account of any user who utilizes the Site, and/or Services to unlawfully publish, transmit, link or otherwise provide access to copyrighted material without a valid license, the express consent of the copyright owner or a fair dealing or fair use exemption (or equivalent under applicable law) and the user shall have the burden of establishing the same to the satisfaction of Cronometer, acting in its sole discretion.

(c)            Alleged Copyright Infringement Policy

It is Cronometer’s policy to respond to notices of alleged copyright infringement that are made in compliance with the United States Digital Millennium Copyright Act of 1998 (the “DMCA”).  If you wish to provide notice of alleged copyright infringement, you must provide the necessary information in the form required by 17 U.S.C. Section 512 (c) and in accordance with the provisions set out below.  Cronometer may, in its sole and absolute discretion, terminate or suspend access to the Site, and/or Services or any portion thereof, and/or cancel the Account of any user who repeatedly infringes or who is repeatedly alleged to have infringed the copyright or other intellectual property rights of third parties.  Cronometer accommodates and does not interfere with standard digital rights management and other technical measures employed by copyright owners to protect their proprietary materials.

Cronometer requires all notices of alleged copyright infringement (a “Copyright Notice”) to be in writing and delivered via regular mail, e-mail or fax to Cronometer or its agent in order to enable us to review and respond to your complaint as efficiently as possible while maintaining compliance with applicable laws. If you are providing a Copyright Notice under the DMCA, you must provide the detailed information outlined below. You should also be aware that, under the DMCA, you could be held liable for damages (including any costs and attorney’s fees) if you materially misrepresent that material or activity is infringing your copyright.  If you are not certain whether the material or activity about which you are complaining infringes your copyright, you should obtain competent legal advice.  If you are not subject to the laws of the United States or the infringing content is not hosted in the United States, the DMCA may not apply.  If you are not certain whether the DMCA applies, you should obtain competent legal advice.  The full text of the DMCA is available from the United States Copyright Office website at: http://www.copyright.gov/

Copyright Infringement Notice

Step 1: Create a written Copyright Infringement Notice document using this format.

Section 1: Identify your original work.  Identify the copyrighted work that you claim is being infringed. In the case of online content, include the website URL where an authorized copy of your copyrighted content is located. If the copyrighted work is not available online, include a hard copy of the work and proof of the existence and your ownership of the copyright in the work (e.g. your copyright registration).

Section 2: Identify the infringing content. Identify the website URL where a copy of the allegedly infringing material is located. Provide the individual URL(s) of each relevant web page and if necessary the location of the text or content.

Section 3: Your Direct Contact Information 

Name:____________________________________

Address:____________________________________

Phone Number:____________________________________

E-Mail:____________________________________

Section 4: Include the following statement:

“I have a good faith belief that use of the copyrighted materials described above in Section 1 on the web pages identified above in Section 2 is not authorized by the copyright owner, its agents, or the law and therefore infringes the copyright owner’s rights. I hereby request that you forthwith remove or disable access to the identified copyrighted materials on the identified web pages.”

Section 5: Include the following statement: 

“I certify, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive intellectual property right that is allegedly being infringed.”

Section 6: Sign & Date 

Name:____________________________________

Signature:__________________________________

Date:___________________________

Step 2: Mail, e-mail or fax the written Copyright Notice document to us.

Please note that the document must be dated and signed with your physical or electronic signature. 

By Mail:

Cronometer Software Inc.
Attn:  President

C/O LAWSON LUNDELL LLP

1600 – 925 West Georgia Street
Vancouver, BC  Canada

V6C 3L2

By E-Mail:

support@cronometer.com

Cronometer will comply with Canadian copyright law by forwarding the notice to the user(s) and then inform the copyright owner once this has been done, and in addition Cronometer may, acting in its sole discretion, notify a user that it has removed or disabled access to allegedly infringing material by means of: (a) a general notice on the Site; (b) an e-mail to a user’s e-mail address in Cronometer’s records; (c) and/or by written communication to the physical address in Cronometer’s records.  Please note that pursuant to Canadian copyright law a copy of any Copyright Notice (including your personal information) shall be provided to the user who allegedly provided the infringing content.

Counter Notice to Restore Removed Content

If you are a user and receive notice that your content is alleged to infringe the copyright or other intellectual property rights of a third party, you may provide a response in writing to Cronometer that contains the following:

(i)     a detailed description of the allegedly infringing material that has been removed or disabled, together with the specific location of the web pages containing the material before it was removed or disabled;

(ii)   the following statement from you:

“I certify, under penalty of perjury that I have a good faith belief that the materials described herein have been removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled";

(iii)  your full name, physical address and telephone number;

(iv)  the following statement from you: 

“I hereby consent to the jurisdiction of the courts of competent jurisdiction for the judicial district in which the physical address I have provided is located or, if such physical address is located outside of the United States, then I hereby consent to the jurisdiction for any judicial district in which Cronometer may be found or, failing that, the judicial district for Seattle, Washington, United States of America, and I will accept service of process from the party who provided the DMCA Copyright Notice of the allegedly infringing material or an agent of such party.”; and

(v)    your physical or electronic signature and the date of such signature.

6.              COMMUNITY GUIDELINES

(a)            Interactive Areas

Some of the Services we provide include forums (the “Interactive Areas”).  You are solely responsible for your use of the Interactive Areas and for User-Generated Content.  The Interactive Areas are often public and any User-Generated Content produced in the Interactive Areas may remain public. We may, but do not always, monitor these Interactive Areas and take no responsibility for the User-Generated Content in the Interactive Areas.

We assume no responsibility for loss or damage as a result of interaction with other community members in Interactive Areas.  You agree to take responsible precautions in all interactions with community members in the Interactive Areas.  We are under no obligation to become involved in any disputes between community members, but may do so at our sole discretion.

(b)           Community Guidelines ("Guidelines")

Cronometer is under no obligation to review any User-Generated Content whatsoever, posted in any Interactive Areas or private areas within the Site and/or Services by you or any other community members and assumes no responsibility or liability relating to any such User-Generated Content. Notwithstanding the above, Cronometer may from time to time monitor, and/or engage a third party to monitor, the User-Generated Content and it shall be a material violation of these Terms for you and/or any Permitted Minor to post or attempt to post any User-Generated Content that contain or represent, as determined by Cronometer acting in its sole discretion:

(i)     any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, discriminatory (based on race, sex, religion, nationality, disability, sexual orientation or age) or otherwise objectionable material of any kind, including, but not limited to, any material which (a) is criminal or which encourages conduct that would constitute a criminal offence, (b) gives rise to civil liability, (c) constitutes an invasion of privacy, (d) otherwise violates any applicable local, state, provincial, national or international law or (e) otherwise harms or can reasonably be expected to create a significant risk of harm to any person or entity;

(ii)   advertisements, solicitations or commercial messages or materials of any kind (whether for profit or not) without Cronometer's prior written consent;

(iii)  messages posted by users impersonating others;

(iv)  personal information such as messages which state phone numbers, government issued identification numbers, account numbers, addresses, or employer references;

(v)    unauthorized messages purporting to be issued by employees or agents of Cronometer, its affiliates or subsidiaries and purporting to speak on behalf of Cronometer, it affiliates or subsidiaries or containing confidential information or expressing opinions concerning Cronometer, its affiliates or subsidiaries;

(vi)  messages or materials that offer or encourage unauthorized downloads of any copyrighted or private information or which otherwise infringe or violate any right of a third party including, but not limited to, intellectual property rights, privacy rights, contractual rights, and confidentiality rights;

 

(vii) message or materials which are antisocial, disruptive or destructive, including “flaming”, “spamming”, “flooding”, “trolling”, “griefing” and “phishing” as those terms are commonly understood and used in relation to the Internet;

 

(viii)                 messages or materials which in any way transmit any file that contains a virus, corrupted data, Trojan horse, keystroke logger, worm, time bomb, or other programming routines which are capable of tampering with, impairing, damaging, surreptitiously intercepting or mining, scraping or expropriating any system, data or personal information from the Site, and/or Services or any Linked Site or connected network, and/or which disrupts the use and enjoyment of any of the Site and/or Services or any Linked Site or connected network by any person or entity; or

 

(ix)  multiple messages by the same user restating the same point.

While we require all community members to comply with these Guidelines, we ultimately cannot guarantee they will comply with these Guidelines.  If you believe any Content violates these Guidelines, or if you know or suspect that someone is misusing your User-Generated Content, please report it to Cronometer at: support@cronometer.com.  We cannot be held responsible for any injury or harm to you resulting from objectionable User-Generated Content or another community member's failure to comply with these Guidelines.

7.              THIRD PARTY LINKS AND SERVICES

The Site may contain links to websites and other resources operated by third parties other than Cronometer. Such links are provided solely as a convenience to you. Cronometer does not control such websites, and is not responsible for the content, products, services or information offered by any third parties. The inclusion of links to such websites on the Site does not imply any endorsement of any website or the content, products or services offered, advertised, endorsed or promoted by any third party, or of any company or person. If you decide to access any third party websites or acquire any third party products or services, you do so entirely at your own risk, and you may be subject to the terms and conditions and the privacy policies imposed by such third parties.

(a)            Third Party Services and Logins

Some of the Services may be accessible, or give you the ability to use the Services, on or through a website, service or device not controlled by Cronometer.  For example, you may download, install or access the Services through a mobile or web-based online market place or have the option to use the Services online on servers not owned or controlled by Cronometer, or Cronometer may make the Services available through servers that are not owned or controlled by Cronometer.  Cronometer takes no responsibility for your access to or use of the Services through or on any third party device or service not controlled by Cronometer and in which Cronometer otherwise has no control over how such services are offered, administered or operated.  Any such use of services not controlled by Cronometer is at your own risk and may subject you to additional or different terms and conditions imposed by the third party that owns and controls such services.

(b)           Third Party Content

Our Services may contain links to other Linked Sites that are not owned or controlled by us and we are not responsible for the content of any Linked Sites.  The presence on the Site of a link to any other Linked Site does not imply that we endorse or accept any responsibility for the content or use of such Linked Site.

(c)            Third Party Products

Some of our Services may by accessed on third-party devices and other products (“Third Party Products”), and your ability to use certain features of the Services may require you to purchase Third-Party Products (e.g., fitness trackers). While we may recommend, promote, or market the products of certain partners, we have no responsibility for your acquisition or use of any Third-Party Products, and we do not guarantee that Third-Party Products will function with the Services or will be error-free. We hereby disclaim liability for all Third-Party Products, including any Third-Party Products offered by our partners.

(d)           Third Party Activities and Events

Our Services may include the ability to discover, access or participate in certain services, activities, or events  offered, organized, run and controlled by third parties (“Third-Party Activities”). Your attendance at and participation in Third-Party Activities is solely at your own risk. Cronometer will not be liable for any act, error or omission of any Third Party, including, without limitation, any which arises out of or is any way connected with your attendance, use of or participation in any Third-Party Activities initially discovered, booked or registered for via the Services, or the performance or non-performance of any Third Party Activities in connection with the Services. Cronometer is not an agent of any provider of Third-Party Activities.

8.              MOBILE SERVICES

The Site may be available through certain mobile devices.  You acknowledge and agree that Cronometer is not responsible for ensuring that your mobile device’s software is compatible with the Site or that you can use or access the Site and/or the Services through your mobile device.  If you are accessing our Services through applications, you should check with your carrier to understand what data and messaging rates will apply.  In addition, the terms and conditions of the app store from which you are downloading any app will also apply.

(a)            Text and Mobile Messaging Consents

By downloading or using our applications, you agree that we may communicate with you regarding our Site and/or Services or respond to your communications to us through the Services by SMS, MMS, text message, or other electronic means directed to your device and that your application's Usage Data may be communicated to us.

(b)           Mobile Application license

We hereby grant you a personal, non-exclusive, non-transferable, non-sub-licensable, revocable license to use our applications downloaded directly from a legitimate marketplace, solely in object code format and solely for lawful purposes. With respect to any open source or third-party code that may be incorporated in the applications, such open source code is covered by the applicable open source or third-party end user license agreement, if any, authorizing use of such code.

(c)            App Stores

If you download our applications from a third-party app store (the “App Provider”), you acknowledge and agree that:

(i)              The Terms are an agreement between us, and not with the App Provider. As between Cronometer and the App Provider, Cronometer is solely responsible for the applications;

(ii)            The App Provider has no obligation to provide any maintenance and support services with respect to the applications;

(iii)           In the event of any failure of the applications to conform to any applicable warranty, (a) you may notify the App Provider and the App Provider may refund the purchase price for the applications to you (if applicable), (b) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the applications, and (c) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be, as between Cronometer and the App Provider, Cronometer’s responsibility;

(iv)           The App Provider is not responsible for addressing any claims you have relating to the applications or your possession and use of the applications;

(v)             If a third party claims that an application infringes another party’s intellectual property rights, as between the App Provider and Cronometer, Cronometer will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms;

(vi)           The App Provider and its subsidiaries are third-party beneficiaries of these Terms as it relates to your license to the applications. Upon your acceptance of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the applications against you as a third-party beneficiary thereof; and

(vii)          You must also comply with all applicable third-party terms of service when using the applications.

(viii)        Notwithstanding anything else in these Terms, if you subscribe to our Gold Edition through Apple then you acknowledge and agree to Apple's pricing and Terms of Use and Privacy Policy.


 

9.              Health, Safety and Well Being

(a)            Healthcare Provider Consult and Consent, and Physical Activities

You should consult with your healthcare provider(s) and consider the associated risks before using our Services in connection with any physical activity, wellness or fitness program or meal or diet planning. By using our Services, you agree, represent and warrant that you have received consent from your physician to participate in wellness and fitness programs, workouts, exercises, meal or diet planning or any of the related activities made available to you in connection with the Services. Everyone’s condition and abilities are different, and participating in the activities promoted by our Services is at your own risk. If you choose to participate in these activities, you do so of your own free will and accord, with full knowledge of and voluntarily assuming all risks associated with such activities. Activities promoted by the Services may pose risks even to those who are currently in good health.

You understand and agree that we will not carry out and are not responsible for any physical inspection, supervision, preparation, execution or conduct of any activities related to or accessed or discovered via the Services (e.g., featured, official or community created challenges; routes; friendly competitions or similar activities; any single or group training activities; any Third-Party Activities or other events or activities that utilize our Services). Maps, directions and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. We encourage you to always put your health, wellbeing and safety first, follow applicable be aware of your surroundings and actions and all traffic regulations, do not change settings on your device while in motion or in unsafe areas and always be vigilant and take stock of your surroundings when exercising.

Except as otherwise set out in these Terms, and to the maximum extent permitted by applicable law, we are not responsible or liable, either directly or indirectly, for any injuries or damages that are sustained from your physical activities, diet or meal planning or your use of, or inability to use, any Services or features of the Services, including any Content or activities that you access or learn about through our Services (e.g., a Third-Party Activity such as a yoga class), even if caused in whole or part by the action, inaction or negligence of Cronometer or by the action, inaction or negligence of others. To the maximum extent permitted by applicable law, you also agree that we do not assume responsibility for any Third-Party Activity or any other race, contest, class, athletic activity or event that utilizes or is promoted by or accessed via the Services.

10.           NO WARRANTIES

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ALL CONTENT AND SERVICES ON THE SITE OR OBTAINED FROM A WEBSITE TO WHICH THE SITE IS LINKED (A “LINKED SITE”), ARE PROVIDED TO YOU “AS IS” AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, SUITABILITY OR ACCURACY.  CRONOMETER DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE OR ACCESSED THROUGH THE SITE, SERVICES OR A LINKED SITE BY ANY PARTY (INCLUDING THOSE PROFESSIONALS OR WELLNESS PRACTITIONERS LISTED IN OUR 'FIND A PRO' DIRECTORY) THAT ARE OTHER THAN CRONOMETER'S OWN, OR THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. EXCEPT AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, UNDER NO CIRCUMSTANCE WILL CRONOMETER BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER’S RELIANCE ON CONTENT OBTAINED THROUGH THE SITE, SERVICES OR A LINKED SITE, OR A USER’S RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, SERVICES OR OBTAINED FROM A LINKED SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE, OR OTHER CONTENT. SOME JURISDICTIONS MAY NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES AND THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU TO THE EXTENT DISCLAIMED.

CRONOMETER DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING ON THE SITE, AND CRONOMETER SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY.

11.           LIMITATION OF LIABILITY

THE CONTENT, SERVICES, PRODUCTS AND DESCRIPTIONS OF CONTENT AND/OR SERVICES PUBLISHED ON THE SITE OR A LINKED SITE, OR INCLUDED IN THE CONTENT OR SERVICES, MAY INCLUDE INACCURACIES OR ERRORS, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CRONOMETER SPECIFICALLY DISCLAIMS ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. CHANGES ARE PERIODICALLY MADE TO THE CONTENT ON THE SITE OR LINKED SITES OR CONTAINED IN THE SERVICES. CRONOMETER MAY, BUT IS NOT OBLIGED TO, MAKE IMPROVEMENTS OR CHANGES TO THE SITE AND/OR SERVICES AT ANY TIME.

YOU AGREE THAT CRONOMETER, ITS AFFILIATES AND SUBSIDIARIES AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WILL NOT BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, EQUITY OR UNDER ANY OTHER LEGAL THEORY, FOR ANY PERSONAL INJURY, LOSS, ACCIDENT OR DEATH OR ANY DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICE OR LOST OPPORTUNITY) ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE AND/OR SERVICES OR A LINKED SITE, OR FOR ANY DELAY OR INABILITY TO USE THE SITE AND/OR SERVICES OR A LINKED SITE, EVEN IF CRONOMETER IS MADE AWARE OF THE POSSIBILITY OF SUCH INJURY, LOSS, ACCIDENT, DEATH OR DAMAGES. THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES, MALWARE OR MALICIOUS SOFTWARE WHICH MAY INFECT A USER’S EQUIPMENT OR DEVICES, FAILURE OF THE SERVICES TO BE COMPATIBLE WITH YOUR HARDWARE OR SOFTWARE, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION OR INTERCONNECT LINES OR FIBER, OR OTHER CONNECTIVITY PROBLEMS (e.g., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, LOSS OF DATA, LOSS OF CONTENT, OPERATOR ERRORS, STRIKES OR OTHER LABOUR PROBLEMS OR ANY FORCE MAJEURE EVENT. CRONOMETER CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, ERROR FREE OR SECURE ACCESS TO THE SITE, OR SERVICES.  WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL CRONOMETER BE LIABLE TO YOU FOR ANY AMOUNT THAT EXCEEDS THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO CRONOMETER.

APPLICABLE LAWS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. HOWEVER, EVEN IF THIS IS THE CASE, IN NO EVENT SHALL THE TOTAL LIABILITY OF CRONOMETER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EQUITY OR UNDER ANY OTHER LEGAL THEORY, RELATED TO YOUR USE OF, OR THE INABILITY TO USE, THE SITE AND/OR SERVICES EXCEED THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO CRONOMETER.

YOU AGREE THAT CRONOMETER IS A MERE REPRESENTATIVE FOR THE SUPPLIERS AND ADVERTISERS OF THIRD PARTY GOODS AND SERVICES ADVERTISED ON OR AVAILABLE THROUGH THE SITE AND/OR SERVICES AND CRONOMETER DOES NOT ENDORSE OR CONTROL ANY SUCH THIRD PARTY SUPPLIERS, ADVERTISERS OR SUCH THIRD PARTY GOODS OR SERVICES. ANY AND ALL CLAIMS REGARDING ANY FAILURE, BREACH, LOSS OR INJURY WITH RESPECT TO THE THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE SITE ARE LIMITED TO CLAIMS AGAINST ANY AND ALL SUCH THIRD PARTY SUPPLIERS AND ADVERTISERS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CRONOMETER HEREBY DISCLAIMS ANY LIABILITY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, EQUITY OR ANY OTHER LEGAL THEORY, INCLUDING WITHOUT LIMITATION LIABILITY FOR ANY DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN CONNECTION WITH THE GOODS OR SERVICES PROVIDED BY ANY SUPPLIER OR ADVERTISER THROUGH THE SITE AND/OR SERVICES, INCLUDING WITHOUT LIMITATION LIABILITY FOR ANY ACT, ERROR, OMISSION, INJURY, LOSS, ACCIDENT, DELAY OR IRREGULARITY WHICH MAY BE INCURRED THROUGH THE FAULT, NEGLIGENT OR OTHERWISE, OF SUCH SUPPLIER OR ADVERTISER, AND YOU HEREBY IRREVOCABLY WAIVE, RELEASE, AGREE NOT TO SUE, AND FOREVER DISCHARGE CRONOMETER FROM ANY LIABILITY WITH RESPECT TO THE SAME.  WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL CRONOMETER BE LIABLE TO YOU FOR ANY AMOUNT THAT EXCEEDS THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO CRONOMETER.

APPLICABLE LAWS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. HOWEVER, EVEN IF THIS IS THE CASE, IN NO EVENT SHALL THE TOTAL LIABILITY OF CRONOMETER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), IN EQUITY OR UNDER ANY OTHER LEGAL CAUSE OF ACTION, RELATED TO YOUR USE OF, OR THE INABILITY TO USE THE SITE AND/OR SERVICES EXCEED THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO CRONOMETER.

12.           INDEMNIFICATION

YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS CRONOMETER, ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, ADMINISTRATORS AND ASSIGNS (THE "INDEMNIFIED PARTIES")  FROM AND AGAINST ALL LIABILITIES, CLAIMS, ACTIONS, CAUSES OF ACTION, COSTS AND EXPENSES (INCLUDING LEGAL EXPENSES ON A FULL INDEMNITY BASIS AND ANY OTHER FEES AND EXPENSES INCURRED FOR INVESTIGATING OR DEFENDING ANY ACTION OR THREATENED ACTION, AS WELL AS SETTLEMENT COSTS) WHICH ANY OF THE INDEMNIFIED PARTIES MAY SUFFER OR INCUR IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RESULTING FROM: (I) YOUR AND/OR A PERMITTED MINOR’S VIOLATION OF ANY OF THESE TERMS, (II) YOUR AND/OR A PERMITTED MINOR’S USE OR MISUSE OF THE SITE AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO YOUR AND/OR A PERMITTED MINOR'S PERSONAL INJURY OR DEATH, (III) YOUR AND/OR A PERMITTED MINOR’S USE OR MISUSE OF ANY LINKED SITES, (IV) YOUR AND/OR ANY PERMITTED MINOR’S VIOLATION OF ANY LAW OR THIRD PARTY'S RIGHTS.

WITHOUT DEROGATING FROM OR EXCUSING YOUR OBLIGATIONS UNDER THIS SECTION WE RESERVE THE RIGHT (AT YOUR EXPENSE), BUT ARE NOT UNDER ANY OBLIGATION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER WHICH IS SUBJECT TO AN INDEMNIFICATION BY YOU EVEN IF YOU CHOOSE TO DEFEND OR SETTLE IT.  YOU AGREE NOT TO SETTLE ANY MATTER THAT IS SUBJECT TO AN INDEMNIFICATION BY YOU WITHOUT FIRST OBTAINING OUR EXPRESS APPROVAL.

13.           GOVERNING LAW

These Terms and your legal relationship with Cronometer, shall be governed by and construed in accordance with the laws of the Province of British Columbia, together with the federal laws of Canada applicable therein, without regard to its conflicts of laws principles. These Terms shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. The controlling language of these Terms is English.


 

14.           DISPUTES AND ARBITRATION, JURISDICTION AND VENUE

You and Cronometer agree that any dispute, claim or controversy arising out of or relating to these Terms, any policy referred to herein, or the breach, termination, enforcement, interpretation or the validity thereof, or the use of the Site, Services or Content (collectively, the “Disputes”) will be settled by binding arbitration, except that each party retains the right to (a) bring an individual action in the British Columbia Provincial Court (Small Claims Division) or British Columbia Civil Resolution Tribunal (Small Claims Division) subject to the applicable jurisdictional limits of those bodies, and (b) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, confidential information or other intellectual property or proprietary rights.  You acknowledge and agree that you and Cronometer are each irrevocably waiving the right to a trial by jury and the right to participate as a plaintiff or a class member in any purported class action or similar representative proceeding.  Further, unless you and Cronometer expressly agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class or representative proceeding.  This “Dispute Resolution” section shall survive any termination of these Terms.

Any arbitration to be conducted pursuant to this “Dispute Resolution” section shall be conducted before a single arbitrator in accordance with the procedural rules of the British Columbia International Commercial Arbitration Centre.  The venue of the arbitration shall be Kelowna, British Columbia Canada.

15.           GENERAL

(a)            International Use

This Site is operated from and Cronometer is headquartered in the Province of British Columbia, Canada.  By electing to access this Site and/or Services from any jurisdiction outside of Canada, you accept full responsibility for ensuring that your use of the Site and/or Services is in compliance with all laws applicable within that other jurisdiction.  Cronometer makes no representation that materials, products and services available on or through the Site and/or Services are appropriate or available for use in jurisdictions outside of Canada.  You are not permitted to access the Site and/or Services from any jurisdiction in which the Content is illegal and/or accessing the Site and/or Services is illegal.  You may not use, export or re-export any materials from this Site and/or Services in violation of any applicable laws or regulations.

(b)           Waiver and Severability

The failure of Cronometer to enforce any right or provision of these Terms will not constitute a waiver of such right or provision.  In the event that any provision of these Terms is held to be invalid or unenforceable by any court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible and the remaining provisions of the Terms will remain in full force and effect.  All remedies of Cronometer hereunder shall be cumulative.

(c)            Assignment

You may not assign any of your rights or obligations hereunder, whether voluntarily or by operation of law except with the prior express written consent of Cronometer, which consent may be withheld by Cronometer acting in its sole discretion, and any attempted assignment in violation of the foregoing is void.  Cronometer may assign any or all of its rights and obligations hereunder to an affiliate, subsidiary or a successor in title to the Site and/or the business and undertaking of Cronometer.

(d)           Enurement

These Terms shall enure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators, successors and permitted assigns.

(e)            Force Majeure

Cronometer will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of events beyond the reasonable control of Cronometer, including without limiting the foregoing where the delay or failure is due to fires or fire related hazards, explosions, power outages, earthquakes, floods, spills, epidemics, acts of God, war or acts of war, acts of terrorism, riots, strikes, lockouts or other labour or contractor actions, acts of public authorities, or delays or defaults caused by common carriers, or other similar events which cannot reasonably be foreseen or provided against.

(f)            Notices

Any notices or other communications permitted or required hereunder, including but not limited to modifications to these Terms and/or any policy referred to herein, will be in writing and given by Cronometer (i) via email (in each case to the email address provided by you for your Account(s)) or (ii) by posting to the Site.  Notice delivered by email will be deemed to have been received on the date on which such notice is transmitted.

(g)           Entire Agreement

These Terms, together with the Privacy Policy and any supplemental terms and conditions referred to below, constitute the entire agreement between the parties concerning the subject-matter hereof and supersede and replace any and all prior oral or written understandings or agreements between you and Cronometer regarding the Site, Services and the Content.

(h)           Survival

The provisions of these Terms which require or contemplate performance after the expiration or termination of these Terms shall remain enforceable notwithstanding such expiration or termination.

(i)             Relationship

The relationship between the parties is that of independent contractors and neither party shall have the authority to bind the other in any way.

16.           CONTACT US

Contact us via email at: support@cronometer.com