Terms Of Use

Activix Inc. ▪ Version 01.12

Effective date : December 1st 2017

1. General Terms

These Terms of Use (hereinafter the "Terms") detail your rights and obligations in connection with the access and use of the products and services provided by Activix (hereinafter the "Products") and well as the transactions and purchases that Activix provides you. These Products include, amongst others, Niotext.

YOU MUST READ THESE TERMS CAREFULLY AND CONSULT THEM BEFORE USING THE PRODUCTS.

By accessing or using the Products or their features, as well as by expressing your consent in another form, you agree to be bound by the provisions of the Terms and the documents to which the Products refer. These Terms bind you as much during, as after your use of the Products.

IF YOU DO NOT AGREE TO ALL OF THE TERMS OR ANY CHANGES TO THE TERMS, YOU MUST DISCONTINUE USING THE PRODUCTS IMMEDIATELY.

We also invite you to contact us for any questions or comments regarding the Terms at info@activix.ca

1.2. Definitions

« Activix », « ours », « us » ou « notre » refers to the company Activix Inc. ;

« Products » refers to the web, mobile, or other products developed by Activix available to Activix Customer on multiple platforms;

« Clients Activix » means paying customers who have subscribed to a commercial service offered by Activix Inc. in addition to the Products ;

« Unsolicited Communications » refers to the meaning given at paragraph 4.1

« Terms » means the present Terms of Use set forth in this document ;

« Additional Terms » refers to the meaning given at paragraph 1.4

« Content » means any text, image, audio file, video, miscellaneous multimedia element, software, code, or any other information or material published, existing, being accessible or being sent from the Products ;

« Services » refers to all the services offered by the Products, accessible via the Products on multiple platforms ;

« User », « you », « yours » ou « votre » refers to the person, physical or moral, accessing or using the Products, their Services or their Content;

1.3. Privacy Policy: These Terms include your acceptance of the terms and conditions set out in our Privacy Policy. This Policy is also governed by these Terms in the event of a dispute or inconsistency relating to it.

1.4. Additional Terms: These Terms may be modified or superseded by Additional Terms relating to the Content and the Services offered by the Products (hereinafter the "Additional Terms"). These Additional Terms will replace any previous terms with which they would be in conflict or inconsistent.

1.5. The Products are intended Canadian residents 18 years of age and over.


2. Restrictions of Use

2.1. The Products are intended for your commercial use as part of your client account with Activix. When you access or use the Products, you agree:

2.1.1. not to use the Products for any unlawful purpose under applicable law or under these Terms ;

2.1.2. not to defame, disparage or make any comment of an obscene, derogatory, or offensive nature or to use these Products or their Content to generate a dispute with us or any third party, including a dispute that would engage our responsibility or that of a third party ;

2.1.3. not to remove or revise the Content of the Products when such content does not emanate from you ;

2.1.4. not to decompile, disassemble, adapt, translate, transmit, arrange, modify, copy, consolidate, sublicense, export, merge, transfer, adapt, loan, lease, assign, share, outsource, host, publish, make the Products available on a third party platform (such as by means of hyperlinking “linking”), “framing” or “spidering”, refer to deep links, create derivative content or use the Products or its Content contrary to these Terms or the laws in force, as well as any other Additional Terms, in any form or by any means, physical, electronic or otherwise ;

2.1.5. not to send any form of unsolicited e-mail or message (“spam”), commercial or otherwise ;

2.1.6. not to use the Products or their Content to distribute computer viruses, malicious program or any other program or malicious code ;

2.1.7. not to attempt to probe, analyze or test the vulnerabilities of the Products or its network and not to attempt to violate the security or authentication network or any other network or security measure of the Products ;

2.1.8. not to present and not to suggest or make believe that we recommend, a person, physical or moral, unless we obtain a separate written authorization from us for that purpose ;

2.1.9. not to access data not intended for you or to connect to a server or account that you are not authorized to access ;

2.1.10. to be held responsible for all costs, fees and expenses that may be incurred by your use of the Products.

2.2. Notwithstanding section 2.1, only Activix Customers are authorized to use the Products for commercial purposes, solely through the Services or by referring to the Products by means of hyperlinks. At no time will an Activix Customer be permitted to use the Content outside of the Products or a related service provided by Activix Inc., unless explicitly stated otherwise.

2.3. We reserve the right to prevent or suspend partial or complete access to the Products if a User does not comply with these Terms, as well as any applicable law or regulation.


3. Ownership, Use and Intellectual Property Rights

3.1. The Content of Activix Inc. is protected by Canadian and foreign copyrights, trademarks and other laws. Unless otherwise stated, the Content of the Products is the property of Activix Inc., its customers and / or its suppliers. Unauthorized use of the Content of Activix Inc. may violate copyright, trademark and other laws. Activix Inc. may modify or delete all or part of the Content of the Products in its sole discretion, at any time and without notice.

3.2. The Products and all related intellectual property rights (including their Content) are and remain our exclusive property or that of our licensors. We and our licensors reserve all our intellectual property rights (including, but not limited to, copyrights, trademarks, domain names, design rights, database rights, patents, and other intellectual property rights) without regard to the registration of these rights in any country.

3.3. Nothing in the Terms grants you any right in the Products other than what is necessary to access it. You agree not to attempt to circumvent or remove any intellectual property notices on the Products, including any digital rights or other technological security rights posted on the Products.


4. Communications via the Products

4.1. The Products and their Services do not provide a secure means of communication and any information you provide will not be considered as confidential. For this reason, you should not send us or communicate between users, patentable ideas or patent applications, advertising or marketing suggestions, prototypes or any other written or verbal information that you consider confidential or commercially sensitive or of value (hereinafter collectively referred to as "Unsolicited Communications"). While we appreciate your comments, you agree not to send us such Unsolicited Communications. Any communication, including any Unsolicited Communication, sent to us, communicated through our Services or published on the Products are deemed to be our property. By transmitting or posting to us on the Products a communication and / or information or message, as well as any other element, you agree, subject to our Privacy Policy, that we use this information in any way (including reproduction, transmission, publication, broadcast and display on any medium and anywhere in the world), free of charge. You also agree that we are not under any obligation of confidentiality, nor can we be held responsible for any use and / or disclosure of the content of these communications.

4.2. When the Products allow you to communicate with us and / or other Users of the Products or third parties, you may not use the Products to communicate offensive or illegal content or material (eg, violent, obscene, discriminatory content, defamatory or otherwise contrary to good faith). While we reserve the right to moderate, monitor, modify, revise or delete notices, comments, discussions, chats, publications, transmissions, forums and similar communications on the Products from time to time, we are not required to and we assume no liability for any content displayed on or transmitted through the Products, or for any error, omission, offense, defamatory, obscene or inaccurate statement contained in such communications.

4.3. By using and accessing the Products, you represent and warrant that any Content that you provide to us is and remains your own original work, that such Content has been lawfully provided to us, that you hold all necessary authorizations to provide us with such Content and that you authorize us to disclose your name in connection with such Content. By providing us with this Content, you waive all moral rights you may have and agree that any personal information you provide in your Content may be reused by us, subject to our Privacy Policy.


5. Provisions Applicable to the Creation and Use of Services with an Account

5.1. When an account is created for you to use our Products, you understand and agree that you are solely responsible for maintaining the confidentiality of your account, including your password, and are fully responsible for all activities that occur under this account, whether intended or not by you.

5.2. You agree to :

5.2.1. notify us of any unauthorized use of your account or any other breach of security without delay ; and,

5.2.2. log out of your account after each use of the Products.

5.3. After your account has been created on the Products, you are ready to use the Products and their functionalities, in connection with other products or services of Activix Inc.

5.4. You represent and warrant that the owners of the telephone numbers to which you send messages or files through our Services and the Products have consented or have chosen to accept the receipt of such messages in accordance with any applicable law or provision.

5.5. You represent and warrant that you notify any legal or natural person of the registration of their calls made through our Products and for any retention of such records. You also agree to comply with any law relating to the recording of telephone calls.

5.6. You agree to comply with any law relating to the sending of SMS and MMS messages and to the best commercial practices when using our Services and the Products.

5.7. You understand that any Content, whether publicly displayed on the Products or privately transmitted with our Services, is the sole responsibility of the person from whom it originates. This means that the User, the Activix Customer, and not Activix Inc. or any other subsidiary and partner, are fully liable:

5.7.1. of the Content they transmit or otherwise make available through our Services and Products; and,

5.7.2. to ensure that their Content is accurate, without misleading information, and that they do not infringe any intellectual property rights belonging to anyone.

5.8. We have no control over the Content transmitted through our Services and Products and we cannot guarantee the accuracy, integrity or quality of the Content that is transmitted or communicated. Accordingly, you agree not to hold us liable for any inaccuracy, error or omission in the Content or for any loss or damage of any nature whatsoever resulting from the use or reliance upon the Content, published, transmitted or otherwise made available to Users or third parties via our Services and Products.

5.9. You acknowledge that we make no prior verification of the Content posted, published or transmitted by a User or Activix Customer, but that we reserve the right (but not the obligation) to refuse or delete any Content made available through our Services and Products, which violates these Conditions, or which we consider objectionable, in our sole discretion.

5.10. You expressly acknowledge and agree that we authorize access, preserve and disclose information and the Content relating to your account where required by law, court order, and even in good faith, if we believe that the access, preservation or disclosure is reasonably necessary for:

5.10.1. complying with a court order ;

5.10.2. enforcing these Terms ;

5.10.3. responding to allegations of violations of the rights of third parties ;

5.10.4. responding to your customer service requests ; or,

5.10.5. protect our rights, our property, the personal safety of our employees, the safety of our organization and its affiliates, Users, Activix Customers and the public.

5.11. When you create an account or contact a third party through the Products, you agree not to:

5.11.1. upload, post, communicate, transmit by e-mail, SMS or otherwise any Content :

(i) that is false, inaccurate, misleading, defamatory, harmful, threatening, abusive, harassing, discriminatory, vulgar, obscene, hateful, racist, or otherwise objectionable or unlawful ;

(ii) for which you do not have rights to make such Content available under any law or any contractual or fiduciary relationship ;

(iii) that infringes a patent, trademark, trade-secret, copyright or other proprietary right belonging to a third party ;

(iv) which constitutes unsolicited or unauthorized advertising, promotional materials (“junk mail”, “spam”, “chain letters”, “pyramid schemes”) or any other form of illegal solicitation contrary to these Terms.

5.11.2. impersonate any person, physical or moral, including but not limited to, a member of our personnel or falsely claim to have an affiliation with such person ;

5.11.3. transfer your account to another person without our prior authorization ;

5.11.4. collect, use, or disclose personal information about users, including e-mail addresses, without their prior consent or by derogating from applicable law in such matters ;

5.11.5. to take any action that would impose an unreasonable or disproportionate burden on our digital infrastructure or those of our subsidiaries ;

5.11.6. interfere or attempt to interfere with the proper functioning of our Services or our Products.

5.12. You acknowledge that we may establish general practices and limitations regarding the use of the Services, including, but not limited to, the maximum number of days that your Content will be retained on our Products, the Content limit per account, the maximum size of the message or Content that can be issued by an account, the maximum number of times, and the maximum time for which you can access or use the Services in a given period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, at our sole discretion, with or without notice.

5.13. Without limiting our right to any other remedy, we may, in our sole discretion, limit, suspend or terminate the Services and User accounts (including Activix Customer accounts), prohibit access to the Products and take technical and legal measures to prevent certain Users from accessing the Products as well as removing and removing any Content and Services, for any reason, including, but not limited to, :

5.13.1. accounts that have not been confirmed by the Users or Activix Customers or have been inactive for a period of more than six (6) months ;

5.13.2. when we believe that you have violated or acted inconsistently with the Terms of the spirit of the Terms ;

5.13.3. when we are compelled by a law, a competent court or any other governmental body having such a binding power ;

5.13.4. when you provide false, inaccurate, outdated or incomplete information or where we have reasonable grounds to suspect that you have committed such acts;

5.13.5. when you make us the request ;

5.13.6. when we must interrupt or make material changes to our Services or the Products ;

5.13.7. when unexpected technical or security problems occur ;

5.13.8. when you have or believe that you have engaged in unlawful activities, including, without limitation, fraud ; and, or,

5.13.9. when you violate our Privacy Policy or applicable privacy laws.

5.14. You acknowledge and agree that any termination of your access to the Services under any provision of these Terms may be made without notice and that we may immediately disable or delete your account and all related Content. Consequently, you agree not to be held responsible to you or a third party for the termination of your account, or the termination of your access to the Services and Products.


6. Account Creation

6.1. If you are not an Activix Customer, you may not use the Products.

6.2. While we strive to keep the Products available at all times, the Products may be temporarily unavailable for 12 hours a week, continuously or discontinuously, for technical reasons.

6.3. In the event that a paid feature of the Products is defective for an extended period, we may need to replace this feature with an alternative service of equal or greater value. In this case, we will contact you to inform you of our intentions.

6.4. We will do everything reasonably possible to ensure that all the information you provide during payment is protected by an encrypted secure payment mechanism, but in the absence of negligence on our part we cannot be held responsible for any loss you may suffer if a third party accesses the information you provide us.

6.5. The termination of a service contract with Activix Customers may not affect any claim due to us under the Terms.


7. Accuracy of the Content and Availability of the Products

7.1. While we strive to maintain accurate and up-to-date information about the Products, we cannot offer any guarantee that the Content is or remains available, accurate, complete, reliable, current, and up to date, as well as that our Services are free from bugs, errors and omissions.

7.2. The trust and trustworthiness you place in the Content of the Products is at your own risk. We may suspend or terminate the operation of the Products at any time and in our sole discretion.

7.3. Nothing in these Terms shall prejudice our statutory rights and obligations.


8. Notification Policy and Withdrawal for Illegal Content

8.1. In the event of any claim or objection by you regarding Content posted on the Products, or if you believe that any Content or sent messages violate your copyright, you agree to notify us immediately and not to hold us responsible for any damages and claims that may arise when your request is processed within ten (10) business days.


9. Hyperlinks and Third Parties

9.1. The Products may contain hyperlinks or references to third-party applications. All these hyperlinks or references are provided for your convenience only. We have no control over the content of third party applications and we cannot assume any responsibility for any content, material or information contained therein. The publication of hyperlinks or references, to an application of a third party, does not constitute an approval of the content of this application, the products or services of these third parties.

9.2. Your use of an application from a third party may be governed by conditions specific to that application.


10. Limitation of Liability

10.1. The Products can transmit messages and files that have been initiated by you or sent by you to third parties of your choice and also record conversations you have with third parties. Thus, you agree not to hold us responsible for the Content, messages, actions or inactions that are made by you using our Products or Services. We have no control over Activix Users or Clients using the Products and we cannot guarantee the truthfulness, quality, safety or legality of the Content. We cannot guarantee continuous or secure access to our services, and the operation of our Products may be affected by many factors beyond our control.

10.2. You are responsible for obtaining and maintaining all computer hardware, software and mobile devices necessary to access the Products and Services and any telecommunications charges billed by your wireless carrier for using our Services and Products.

10.3. You understand and agree that we are not responsible for any loss incurred by the failure of a message and damages for financial or other loss resulting from a delivery failure cannot be claimed. You also understand and agree that we are not responsible for all loss, legal claim, and legal procedure intended against you or incurred following your illegal recording of conversations with third parties.

10.4. You understand and agree that we are solely responsible for ensuring that your messages and files are properly processed and forwarded to the applicable network. We cannot be responsible for the final delivery of any communication or message initiated through the Products and our Services, as this is beyond our control. In addition, we cannot be held responsible for the delay in transmitting any communication or message initiated through the Products and our Services. These delays depend on several factors related to the wireless networks, telephone lines and Internet connection of Users.

10.5. To the extent permitted by law, you understand and agree that we and our licensors cannot be liable for any direct, indirect, incidental, special, consequential or exemplary damages that you may incur under the principles of the public liability. This includes, but is not limited to, loss of profits, damage to reputation, loss of data, the cost of acquiring alternative goods or services, or any other intangible loss (although we have been advised of the possibility of such damages), resulting from your use or your inability to use our Services or any matter relating to our Services and our Products.

10.6. Notwithstanding the above, if we are held liable, our liability to you or a third party is limited to the greater of:

10.6.1. The total fees you paid us in the 12 months preceding the action giving rise to the liability ; and,

10.6.2. $ 150,00 CAD.

10.7. You agree that your use of the Products is "as is" and "subject to availability". As mentioned above, we make no representations or warranties with respect to the availability of the Products, including, without limitation, its completeness, accuracy and reliability.

10.8. In the event of a dispute with one or more Activix Users or Customers you agree to release us (as well as our officers, directors, shareholders, agents, subsidiaries, joint ventures, employees and licensors) of any claim, claim or damage arising out of one way or another of this dispute.

10.9. You agree to indemnify us (and our officers, directors, shareholders, agents, subsidiaries, joint ventures, employees, and licensors) for any and all claims including reasonable judicial and extrajudicial fees incurred as a result of your breach of these Terms because of any Content that you submit, post, transmit or make available through the Services, your use of the Services, your connection to the Services, or your infringement of the rights of others as well as your violation of the law.

10.10. You acknowledge that we are not responsible for unpredictable events, such as events of force majeure, or any other event beyond our control.

10.11. Since Activix Inc. is a duly incorporated legal entity, its shareholders, directors, officers, employees and consultants will in no way be liable for any damages arising in any way from the access and use of the Products.

10.12. Unless otherwise indicated, any exclusion and limitation of liability shall also apply to the Additional Terms, if any.


11. Final Provisions

11.1. Activix Inc. may, in its sole discretion, modify, add to or delete these Terms, in whole or in part, for legal, technical or regulatory purposes, as it deems necessary or as a result of a change in the Services provided, the nature or presentation of the Products. Your continued access or use of the Products indicates that you agree with these changes.

11.2. Unless otherwise specified in these Terms, any notice from you to us must be sent in writing to our email address at info@activix.ca and any notice of us to you will be posted on our Products in a timely manner.

11.3. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, including, but not limited to, the above exclusions and limitations of liability provisions, the invalid or unenforceable provision shall be deemed to be superseded by a provision valid that will correspond to the intent of the original provision and the remaining provisions of the Terms will remain in effect.

11.4. You may not assign your rights and obligations under this Agreement to any other party without our prior written consent.

11.5. The User expressly acknowledges that the Products will be deemed to be based in Montreal, in the province of Quebec in Canada. These Terms shall be governed by and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable to them and, barring any lawful public policy provision, any legal proceedings instituted hereunder Conditions will be exclusive jurisdiction of the courts of the judicial district of Montreal.

11.6. These Terms (and any other provisions mentioned above) constitute the entire rights and obligations that bind us to you with respect to the access and use of the Products and supersede any prior or current communication and it is electronic, oral, or written. A printed version of these Terms and any information provided in electronic format is admissible in evidence to the same extent and under the same conditions as other means of proof.