WIND Safe Port Service - Terms of Use

 

1. Agreement

 

(a) The WIND Safe Port Service consists of this website and any client applications provided by us and required for your WIND phone to access and interact with this website (collectively the “Service”). In these Terms of Use (defined below), when we say “we”, “us”, “WIND” or “WIND Mobile”, it means Globalive Wireless Management Corp., operating as WIND Mobile, and when we say “you”, it means you, our customer or prospective customer, the individual person that will be responsible for the use of the Service.

 

(b) The Service is owned and operated by WIND Mobile. By accessing or using the Service, whether from the website or your WIND phone, you acknowledge receipt of, and agree to accept and abide by, these terms and conditions, including any additional terms we refer to below, as revised from time to time (collectively the “Terms of Use”). If you do not agree with any of these Terms of Use, do not access or use the Service.

 

2. Changes to these Terms of Use and the Service

 

(a)  We may at any time and from time to time change: (i) these Terms of Use; (ii) the Service, including terminating, eliminating, supplementing, modifying, adding or discontinuing any content, feature, data or service on, or available through, the Service or hours that it is available; (iii) the fees or charges, if any, related to the use of the Service; and (iv) the equipment, hardware or software required to use and access the Service. Unless we advise otherwise, any new features introduced to augment or enhance the Service shall be subject to these Terms of Use. Changes to these Terms of Use will be posted at http://safeport.windmobile.ca.

 

(b)  Any changes we make to these Terms of Use will be effective immediately upon notice, which we may provide by any means including, without limitation, by e-mail, text message or posting on this website.  If you do not agree with any change to these Terms of Use, you’re not locked in – contact us immediately to terminate the Service. Your continued use of the Service after such notice will be deemed acceptance of such changes. 

 

(c )   Be sure to return to this website periodically to ensure you are familiar with the most current version of these Terms of Use. 

 

3. Service

 

(a) The Service has been created to help you copy your contacts and related information to your WIND phone ("Contacts"). To use the Service you must agree to these Terms of Use and register and maintain a WIND Safe Port Account (“Account”) at http://safeport.windmobile.ca. Upon successful registration, you’ll have thirty (30) days to use the Service to import Contacts from select services, add and manage Contacts manually, and copy those Contacts to your supported WIND phone. We may limit the number of times you can import Contacts or restore or backup your Contacts to your WIND phone.

 

(b) You are responsible for maintaining the confidentiality of your username and password and for any and all activities (including purchases and charges, as applicable) that are conducted through your Account. You will notify us immediately of any unauthorized use, theft or misappropriation of your Account, username or password. We will not be liable for any loss that you incur as a result of someone else using your username or password.

 

(c) The Service provides links to third party websites and services ("Third Party Services") to enable you to import your Contacts stored on such Third Party Services to your Account.  The inclusion of these links does not imply that we monitor or endorse these Third Party Services. We do not control such Third Party Services and we cannot guarantee or accept any responsibility or liability for the performance or availability of such Third Party Services. As a condition of accessing your contact information some Third Party Services may require us to provide you with certain advertisements when using their services. We do not endorse or accept any responsibility for such advertisements, or any of the products or services described therein. We do not accept any responsibility for such Third Party Services nor are we responsible or liable, directly or indirectly, for any damage or loss, caused or alleged to be caused by or in connection with the use of, or the reliance upon, any information, content, goods or services available on or through any Third Party Services.  

(d) The Service and certain Third Party Services may be subject to Canadian, American and other country's export controls. No materials may be downloaded or otherwise exported or re-exported (i) into any country to which Canada or the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any materials, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

 

(e) The Service is solely directed to individuals residing in Canada. We make no representation that the Service is appropriate or available for use in other locations. Those who choose to access the Service from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable. We reserve the right to limit the availability of the Service and any materials or other products described or offered thereon, to any person, geographic area, or jurisdiction we so desire, at any time and in our sole discretion, and to limit the quantities of same provided.

 

(f) The Service is owned and operated by WIND Mobile in conjunction with others pursuant to contractual arrangements. The Service (including this website, its organization and presentation, and any client applications we may provide to you) is the property of WIND Mobile and its licensors and may be protected by intellectual property laws including laws relating to copyrights, trade-marks, trade-names, internet domain names and other similar rights. © 2010, Globalive Wireless Management Corp.,   All rights reserved.

(g) The Contacts that you import or input into your Account (which may include contact name, phone numbers, email addresses, mailing addresses, birth date, and other information about that contact) is yours.  By providing such information to us, you are granting WIND Mobile, its affiliates, partners, officers, directors, employees, consultants, agents, and representatives a license to use such information in connection with the Service, including, to, at your request, connect to a Third Party Service, import your Contacts and transmit, reproduce, edit, translate, and reformat such information so that it may uploaded to your WIND phone as part of your use of the Service. By providing Contacts to us, you warrant and represent that you have sufficient rights in such information to provide them to us and to transmit, reproduce, edit, translate, and reformat such information as you use the Service and that such use of such information does not violate any applicable laws. 

 

You are solely responsible for your Contacts. You are solely responsible for making and keeping back-up copies of your Contacts and for applying the appropriate level of access rights to same.  We are not responsible or liable for the deletion or accuracy of any Contacts, the failure to store, transmit, encrypt (or otherwise secure) or receive any Contacts, or the storage, transmission, encryption (or other security) or receipt of any other communication involving the use of the Service.  

 

You are solely responsible for obtaining and maintaining any necessary consents or permissions from any third party whose information may be collected, recorded, processed, stored, used, disclosed, transferred, exchanged or otherwise handled as a result of, or as part of, your Contacts or any communications involving your use of the Service and agree to obtain and maintain all such consents or permissions throughout the term of this agreement.

 

 

(i) While we endeavour to keep downtime to a minimum, we do not promise that the Service will be uninterrupted, secure or error-free.  We reserve the right to interrupt/suspend the Service, or any part thereof; with or without prior notice for any reason and we will not be responsible to you in any way should you be unable to access the Service at any time or from time to time.  You will also not be entitled to any refunds of fees for interruption of the Service. 

 

The availability, access and quality of the Service may be impacted by things outside of our reasonable control, such as, without limitation, the weather, unforeseen faults or malfunctions (including failures of our equipment or your handset). In addition, there may be disruptions to the Service due to upgrades, maintenance or other work, or governmental, regulatory or emergency service prioritizations or restrictions. We and our third party service providers will not be liable to you in any manner for such events or disruptions or for any failure to perform any of our obligations under these Terms of Use due to anything beyond our or their control, including, but not limited to, acts of God, war, acts of terrorism, government actions or failures by other suppliers or operators.

 

 

(j) Technical difficulties with the Internet, Internet software or transmission problems could produce inaccurate or incomplete copies of information contained in the Service or imported from a Third Party Service. Due to the ability to import or share certain content and materials, computer viruses or other destructive programs may also be inadvertently downloaded from the Service or a Third Party Service. We are not responsible or liable for any software, computer viruses or other destructive, harmful or disruptive files or programs that may infect or otherwise impact your use of your WIND phone, computer equipment or other property on account of your access to, or use of, the Service or your importing of any Contacts or other information from, or to, your Account.  We recommend that you regularly back-up your Contacts and other information and install appropriate anti-virus or other protective software.

 

(k) You are responsible for all Contacts that you add, import, copy, restore or backup using the Service. We do not monitor the use of the Service or any Contacts contained therein. We also do not exercise editorial control over the Contacts stored using the Service. We accept no liability whatsoever for your Contacts stored using the Service.  Your Account and all Contacts in your Account may be deleted thirty (30) days after registration. 

 

(l) Since the Service enables you to connect to and import your Contacts from certain third party service providers, we believe it is important to remind you that your use of such third party services may be subject to and governed by your agreements with such third party service providers. Materials that you access on the internet or that you otherwise import or retrieve from third parties through the Service are provided by others and do not form part of the Service. You agree that you are solely responsible for your access, importing or retrieval of such materials and acknowledge that you may incur charges in doing so. We have no obligation or liability to you regarding such materials.   We encourage you to regularly review and fully comply with all of your agreements with such third party service providers. 

 

(m) We and our third party service providers may make changes to the Service, cancel, suspend, limit, block or restrict the Service from time to time in our and their discretion and without notice to you.

 

4. Prohibitions and Restrictions

 

(a) You may only use the Service for your own individual, personal and non-commercial purposes. You may not share, assign, transfer, distribute, sell, resell, give or otherwise exploit the Service for any commercial purpose in any manner whatsoever. You may not make the Service available for use by any other person.

 

(b) You agree not to: (i) alter any of the equipment or software that you use to access the Service; (ii) use the Service for any unlawful purpose or in any unlawful manner, or in any manner which is otherwise contrary to or violates any law, regulation or the rights of any third party; (iii) do anything to damage, disable, overburden, impair or otherwise adversely affect, as we determine in our sole discretion, the Service or any data, software, networks or equipment used to provide the Service; (iv) circumvent, disable or interfere with the security of, or otherwise abuse, the Service or any of the data, software, networks or equipment used to provide the Service, including any security features or functionality; (v) use excessive capacity, bandwidth or resources or disrupt or interfere with any other person’s use or enjoyment of the Service; (vi) use another person’s account, e-mail address, password, or other device or information without that person’s and our prior written authorization, create or use a false identity, impersonate any person or otherwise misrepresent your identity; (vii) attempt to obtain unauthorized access to the Service or portions of the Service to which you have not subscribed or are restricted from accessing; or (viii) harass, abuse or threaten any of our employees or representatives.

 

(c) You agree not to use the Service to send, transmit or relay: (i) anything

(including without limitation viruses and trojan horses) which is intended to, is likely to or has the effect of disabling, denying access to, damaging or destroying, corrupting or affecting the normal use of the Service, or any data, software, networks or equipment used to provide the Service; (ii) any material that is or is reasonably likely to be construed as deceptive, fraudulent, libelous, defamatory, threatening, intimidating, abusive, harassing, violent, hateful, degrading, obscene, pornographic, profane, harmful or injurious to individuals, tortious or that may otherwise result in criminal, regulatory or civil liability; (iii) any material that violates any agreement, intellectual property rights, moral rights, publicity rights, privacy rights, fiduciary obligations or other rights of a third party; (iv) spam, chain letters, junk mail or any other type of commercial solicitation or unsolicited mass e-mail or messaging; or (v) any material that contravenes any notice or guideline posted by us on our website from time to time.

 

(d) We reserve the right to limit, restrict or block the use of certain third party applications, as determined by us from time to time in our sole discretion and without notice.

 

5. You Leaving Us

 

You can terminate your use of the Service at any time by contacting our call centre.

 

6. Us Leaving You

 

We can either suspend or terminate the provision of the Service to you, without notice or further liability, as set forth in these Terms of Use or if we determine, in our sole discretion, that you have breached or will likely breach any of these Terms of Use, including failure to provide accurate information, pay your invoice on time, or otherwise, in our sole discretion. If we do terminate the provision of Service, we also reserve the right to refuse you as a customer, in our sole discretion, if you attempt to subscribe to this or any of our other services subsequently.

 

Termination of your Account may include all or any of the following: (i) removal of access to all or any part of the Service; (ii) deletion of your username and password and all related information, files and content (including your Contacts) associated with your Account (or any part thereof); and (iii) barring of further use of all or any part of the Service.

 

7. Phones, Equipment and SIM Cards

 

a) You will only use the Service to restore and/or backup Contacts to and/or from a supported WIND phone using a WIND Mobile SIM Card.

 

b) You acknowledge and agree that we may transmit or remotely install software, firmware and other updates on your phone and equipment from time to time in order to maintain, enhance or correct the Service, without notice or liability.

 

8. Charges and Payments

 

Currently, we provide the Service free of charge from within a WIND Home Zone area when used with a WIND phone with a WIND SIM card.  If you restore or backup your Contacts from outside of a WIND Home Zone, standard WIND Away or My World International Roaming data charges will apply. Definitions of WIND Home, WIND Away and My World International Roaming zones and applicable data prices are available at www.windmobile.ca. 

You are responsible for obtaining and maintaining the internet, computer hardware and other equipment needed for you to access and use the Service and you are responsible for all charges and fee related thereto.  You are responsible for any fees that Third Party Services or a third party hosting your Contacts may charge for the transfer of same to your Account.

 

9. Disclaimers

 

WE PROVIDE THE SERVICE SOLELY ON AN 'AS-IS,' 'WITH ALL FAULTS' AND 'AS AVAILABLE' BASIS, WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WIND MOBILE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT ITS USE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, OR THAT ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.

10. Exclusion and Limitation of Liability

 

(a) TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY OTHER PERSON IN ANY EVENT FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, MORAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOSS OF INFORMATION OR DATA, LOSS OF PROFIT, SAVINGS OR REVENUE OR FAILURE TO REALIZE EXPECTED PROFIT OR SAVINGS OR OTHER NON-DIRECT, COMMERCIAL OR ECONOMIC LOSS OR DAMAGE OF ANY KIND) UNDER ANY LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF OR COULD REASONABLY FORESEE THE POSSIBILITY OF SUCH DAMAGE OR LOSS, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE ARISING FROM OR IN CONNECTION WITH THE SERVICE, PHONES OR EQUIPMENT, THE FAILURE OR UNAVAILABILITY OF THE SERVICE, PHONES OR EQUIPMENT, THE USE OF THE SERVICE, PHONES OR EQUIPMENT OR ANY UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS, CORRUPTION OR DESTRUCTION OF COMMUNICATIONS, INFORMATION OR DATA.

 

(b) In every event, our total maximum aggregate liability under these Terms of Use or the use or exploitation of the Service, or any part thereof, in any manner whatsoever is limited to five ($5.00) Canadian dollars. The consideration being paid HEREUNDER does not include any consideration for us to assume any risks beyond those expressly assumed herein and if any such risks were to be assumed by us, we would not have entered into this Agreement without charging substantially higher fees.

 

(c) THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THESE TERMS OF SERVICE APPLY TO OUR ACTS OR OMISSIONS AND THOSE OF OUR AFFILIATES AND SERVICE PROVIDERS AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “SUPPLIER PARTIES”), AND WILL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR CLAIM INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY.

 

11. Indemnity

 

You agree to indemnify and hold the Supplier Parties harmless from and against any and all claims, actions or demands, judgments against the Supplier Parties and all losses and expenses the Supplier Parties suffer, including without limitation reasonable legal and accounting fees, arising from or in connection with your use or misuse of the Services or any breach of these Terms of Use.

 

 

11. Communications and Security

 

(a) You must have an e-mail address and internet access that are accessible

through means other than the Service in order to use the Service, as we will use your e-mail address to identify you as a unique subscriber and provide you with service related information. You are responsible for all equipment and services required for such e-mail and internet access. We may send you communications by email, text message and, occasionally, by phone, voice-mail or regular postal mail. You agree to receive communications from us through such methods as required to deliver the Service or Service related information (including notices if applicable).

 

(b) You can contact us through any of the ways we describe on our website, subject to this provision. If you would like to send us an ordinary letter by post, we’d be happy to hear from you. Please send it to Globalive Wireless Management Corp., 207 Queen’s Quay West, Suite 710, Toronto, ON, Canada, M6K 3K9, Attention: Office of the CEO. You agree that legal claims against us must be sent to us by post or courier at this address, with a copy to the attention of our Chief Legal Officer. If you have complaints, we would encourage you to contact us first. However, you may also contact the Commissioner for Complaints for Telecommunications Services Inc. (the “CCTS”) directly at any time if you have a complaint regarding us or our Service. You can contact the CCTS through their website at http://www.ccts-cprst.ca/, by e-mail at response@ccts-cprst.ca, by telephone at 1-888-221-1687 (toll-free) 1-877-782-2384 (TTY) or by post at P.O. Box 81088, Ottawa, Ontario K1P 1B1.

 

12. Personal Information and Privacy

 

(a) From time to time, we may collect certain personal and other information such as your name, email address, phone number, usernames and passwords, IP address, computer or handset hardware, operating system or software specifications, third party service provider account details (such as the service provider, account name, username and password).  Your information may be collected, used or disclosed by us to enable you to use the Service; ensure that your Account, including username is unique; to enable us to provide certain security and privacy safeguards; to deal with security, debugging and technical support issues; for billing and payment-related issues; and to protect ourselves and other from abuse. You need to provide us with current, complete and accurate information, and keep us up-to-date as soon as your information changes. You may be able to do so by logging into your Account at our website or through our call centre. All personal information that you provide to us will be administered by us in accordance with our privacy policy (posted at http://www.windmobile.ca/privacy-policy), as amended from time to time.  As we discuss in greater detail in our Privacy Policy, your access to and use of the Service is provided via the internet and, as a result, your information, including personal information, may be transferred across national borders and stored or processed in any country in the world. 

 

(b) We reserve the right (but have no obligation) to monitor usage of the Service and disclose information in order to satisfy legal, regulatory or governmental requirements, to properly administer the Service and to safeguard the Service, any data, software, networks or equipment used to provide the Service and our customers.

 

13. Trade-Marks

 

The “WIND”, “WIND Mobile” and “Globalive” names and logos and other words, titles, phrases, marks, logos, icons, graphics used by us are our trade-marks or are used by us under license, are protected by law and may not be used, copied, imitated or used in whole or in part without our or our licensors’ prior written consent. The “WIND” and “WIND Mobile” names and logos are trademarks of WIND Telecomunicazioni SpA and are used by us under license.

 

Gmail™ and the Gmail logo are the trademarks and/or registered trademarks of Google Inc.  Yahoo!® Mail the Yahoo! Mail logo are the trademarks and/or registered trademarks of Yahoo! Inc. Windows Live™, and the Microsoft® Outlook® are either registered trademarks or trademarks of Microsoft Corporation in the United States and/or other countries.  Facebook® is a registered trademark of Facebook Inc.

 

14. Arbitration

 

To the fullest extent permitted by applicable law, you agree that all disputes or disagreements between you and us relating to the Service, Terms of Use, phones, equipment or any related promotions, advertisements, statements or communications will be settled by confidential, final and binding arbitration by a single arbitrator in the forum and under the rules we mutually agree upon, failing which the Arbitration Act, 1991 (Ontario) will apply. The arbitrator will be a person who is legally trained and who has experience in the telecommunications and information technology fields in Canada or the United States of America and is independent of either party. Any such dispute or disagreement will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim, controversy or dispute of any other party. Except where prohibited by applicable law, you agree to waive any right you may have to commence or participate in any class action against WIND Mobile relating to any dispute or disagreement and you also agree to opt out of any class proceedings against WIND Mobile. Notwithstanding the foregoing, WIND Mobile reserves the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts. 

 

15. Governing Law

 

You agree that, to the fullest extent permitted by law, these Terms of Use will be governed exclusively by the laws of the province of Ontario and the federal laws of Canada applicable therein (without reference to conflicts of laws principles).

16. General

 

If any part of these Terms of Use is for any reason unenforceable, then that part will be considered severable from these Terms of Use without affecting the validity of the rest of these Terms of Use. These Terms of Use constitute the entire agreement between you and us in respect of the Service. You may not assign these Terms of Use or any of your rights or obligations under these Terms of Use, including by operation of law, without our prior written consent, which we may withhold in our discretion or make subject to conditions (such as a credit check, validation of identity or an administrative fee). We may assign these Terms of Use in our sole discretion. These Terms of Use shall benefit and be binding upon the respective successors and permitted assigns of the parties hereto. No waiver of any breach of these Terms of Use by you is effective unless made in writing and signed by us and, unless otherwise provided, is limited to the specific breach waived. Any heading, caption or section title contained in these Terms of Use is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

 

 

Version 1.0, Effective April 1, 2010