1. Registration and Your Account
- You must register to use the Service.
- All information provided by you for the purpose of registration must be complete and accurate. On completion of registration you will have created your personal Emitter account.
- You will be responsible for the security and use of your username, password and Emitter account and for maintaining the confidentiality of all details related to your Emitter account.
- You will be solely responsible for all activities that occur under your username and Emitter account.
- Your use of the Service must comply with all applicable laws and regulations, including but not limited to the export of data or software.
- Your use of the Service shall be subject to the Emitter Privacy Statement, as further described below, and your use of the Service constitutes acceptance of this Statement. This Statement is duly incorporated herein and may be updated from time to time.
- Emitter reserves the right to block, without liability, any Emitter account and related data that violates the Terms.
2. Fees and Billing
- An Invoice will be issued to your Emitter account for all charges accrued in excess of the Quota Limits of your plan.
- Charges are solely based on Emitter’s measurements of your use of the Service, unless otherwise agreed to in writing and shall be exclusive of VAT or such other taxes as may be applicable.
- If payment is not received by Emitter within 30 days of the Invoice date, Emitter has the right to terminate the Service.
- All correspondence related to billing and invoices will be sent by Emitter to the email address used to register your Emitter account.
- If you dispute any portion of an Invoice, you shall promptly pay the undisputed portion and provide Emitter with immediate written notice of the disputed portion and the reasons therefor. Acceptance of such part payment by Emitter shall not constitute a waiver of its right to payment in full of the disputed portion. Failure to pay undisputed amounts promptly (within 30 days of date of Invoice) shall entitle Emitter to suspend its provision of the Service. The parties shall use good faith efforts to resolve disputes relating to Invoices promptly.
3. Policies and Privacy
- The Service shall be subject to Emitter’s Privacy Statement (“Privacy Statement”) for the Service which can be found on our website here and which is duly incorporated herein by this reference.
- Emitter reserves the right to update its Privacy Statement from time to time by posting a new version of the Privacy Statement to its website. Any updated version of the Privacy Statement shall apply to these Terms.
4. Grant of Licences and Licence Restrictions
- The Emitter software provided to you as part of the Service (“the Software”) is a real-time cloud messaging service for connecting online devices. Subject to your compliance with these Terms and payment of Invoices issued to your Emitter account, Emitter grants you a personal, non-exclusive, royalty-free, non-transferable, non-sublicenseable, revocable licence to use the Software as part of Service. This licence is granted for the sole purpose of enabling you to use the Service, such use to be in accordance with the Terms.
- The Software and all intellectual property rights therein or relating thereto are the confidential information of Emitter and are proprietary to Emitter and title thereto remains in Emitter. For the avoidance of any doubt, you do not acquire any rights, express or implied, in the Software, other than those specified in these Terms.
- Unless otherwise agreed in writing between you and Emitter or expressly permitted by local law and in such case, solely upon prior written notice to Emitter, the licence granted pursuant to Clause 4.1 of these Terms does not permit you or any third party to (i) copy, modify, decompile, reverse engineer, or otherwise attempt to derive the source code of the Emitter software; (ii) use the Service other than in accordance with the Terms, including but not limited to use of the Service for any malicious or non-lawful purpose; (iii) sublicence, distribute, or otherwise assign your rights to use the Emitter software or otherwise make the Service available to any third party; (iv) access, use or copy the Service or any part thereof to develop or support any product or service that is competitive with this Service; (v) interfere with or disrupt the security or integrity or performance of the Service; (vi) interfere with or disrupt the security or integrity of any third party data contained in the Service; (vii) attempt to gain unauthorized access to the Services, including access to any other Emitter customer’s data.
- You have sole control over and responsibility for the data uploaded by you in the Service (“Your Data”). You hereby agree and acknowledge that Emitter has no ownership or control over Your Data. You will retain all proprietary rights, including copyright, you already hold in Your Data and you are solely responsible for protecting these rights. You will be solely responsible for ensuring your Emitter account is kept secure and for maintaining the confidentiality of all usernames and passwords associated with your Emitter account.
- Through your use of the Service, you grant Emitter a non-exclusive, royalty-free, non-transferable worldwide licence to analyse, reproduce, modify, translate or use statistical data derived from Your Data solely for the purposes of maintaining and improving the Service. Your Data will be treated as private and confidential and will be kept so by Emitter. Emitter will not make Your Data available to any third parties (other than its agents and employees who shall be contractually obliged to maintain the confidentiality of Your Data). Emitter’s collection, use and disclosure of Your Data shall apply with applicable law. Emitter transports data in its performance of the Service and does not filter or inspect] data sent by its customers in connection with their use of the Service. It is your responsibility to ensure that the Emitter software provided to you to enable your use of the Service is protected from any virus, malware or other software or system that may result if use of the Service for any malicious or unlawful purpose. Any unauthorized or inappropriate use of the Service will, however, be investigated by Emitter should it become aware of such use.
5. Confidential Information
- All information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) pursuant to the Terms and your use of the Service shall be confidential (“Confidential Information”). Confidential Information shall be information designated as such at the time of disclosure or such information as a reasonable person should know to be confidential. The Service, Software, Emitter trade secrets and know-how, including pricing, business plans, customer details and lists, Emitter Account details, shall be automatically deemed Confidential Information. Confidential Information shall remain the property of the Disclosing Party and the other party agrees that it shall not acquire any rights therein. Confidential Information shall not include:
- Information which becomes public knowledge after its disclosure through no fault of the Receiving Party, or
- was already known to the Receiving Party free from any obligation of confidentiality prior to its disclosure hereunder as evidenced by its written records; or
- the Receiving Party can demonstrate was independently developed by the Receiving Party without reference to the Confidential Information in question; or
- is required by law or order of any court or governmental or regulatory authority to be disclosed but only to the extent of that disclosure requirement and provided that the Receiving Party gives the Disclosing Party such prior notice of such disclosure as is reasonable in the circumstances unless it is prohibited from so doing by law.
- The parties acknowledge that monetary damages may not be an adequate remedy for unauthorised use or disclosure of Confidential Information and a party may, without waiving any other rights or remedies available to it, seek such injunctive or equitable relief as a court of competent jurisdiction deems proper.
6. Warranties and Disclaimer
- You acknowledge and agree that the Software and Service are provided “AS IS”. Emitter hereby disclaims all warranties, representations or conditions, express or implied, statutory or otherwise, including but not limited to, warranties of performance, security, satisfactory quality or fitness for any particular purpose and non-infringement. Emitter makes no warranty or representation regarding your use of the Service or the results of such use.
- You warrant you have all necessary rights to provide and access Your Data and to distribute Your Data across the internet using the Service; Your Data does not violate any applicable law; you shall avoid malicious or unethical behaviour that could prove detrimental to Emitter or the Services.
7. Liabilities and Indemnities
- Nothing in these Terms will limit or exclude your liability or the liability of Emitter for:
- Death or personal injury resulting from negligence
- Fraud or fraudulent misrepresentation
- Any other acts or omissions for which Irish law prohibits the exclusion or limitation of liability
- Emitter will not be liable to you, under any circumstances, for any direct or indirect, special, consequential or exemplary loss or damages (including but not limited to negligence or breach of these Terms) or for any loss of or damage to data, profits, income, revenue, contracts, commercial opportunities, goodwill or business howsoever caused notwithstanding that such loss or damage was foreseeable by Emitter or that Emitter was expressly advised of such loss. For the avoidance of doubt, the foregoing loss includes loss or damages arising due to your failure to maintain the security and confidentiality of your Emitter account and breach of your Confidential Information due to the conduct of any third party, including without limitation unauthorised access to Emitter’s website or alterations of transmission of Your Data and malicious or criminal behaviour.
- Your use of the Software and the Service or any other information or materials on the Emitter website is entirely at your own risk. Emitter cannot guarantee the satisfactory performance of the Software or Service nor the accuracy of said information or materials and accepts no liability in connection with same.
- You agree to indemnify and hold harmless Emitter in respect of any losses you suffer in connection with the Service, including any claim brought by a third party due to or arising from your use of the Service or this website, violation of these Terms, infringement of the intellectual property rights of any person or entity, defamation by you of any person or entity.
- Emitter does not review or monitor, nor does Emitter have any control over, the content of third party websites (“Third Party Content”). Emitter makes no warranty or representation as to the completeness, accuracy or fitness for any particular purpose of Third Party Content nor to the possibility that it is defamatory in nature. Emitter hereby disclaims all liability and responsibility arising from and accepts no responsibility or liability whatsoever for any reliance placed on Third Party Content by you or any other user or for any use to which it is put or any effects whatsoever arising the use thereof.
- You hereby agree that your use of the Service and the use of Your Data placed on the Emitter website for use of the Service shall not (i) infringe any third party’s intellectual property rights or other proprietary or privacy rights; (ii) include any content or conduct that would violate any local or national law, including without limitation those governing unfair competition, anti-discrimination and export control; (iii) be defamatory, threatening, harassing or obscene. You shall indemnify, defend and hold Emitter harmless from any third party claims, including but not limited to such claims arising from (a) your violation of subsections (i), (ii) and (iii) of this Clause, (b) breach of warranties set forth in clause 6.2; (c) breach of your obligations under these Terms; (d) your use of the Service; (e) Your Data. Emitter will promptly notify you in writing of any claim. You shall have sole control of defence and negotiations for settlement (provided such is subject to Emitter’s prior written consent) and Emitter will provide reasonable assistance in such matter at your request and expenses.
- Subject to Clause 7.1, Emitter’s total liability to you, whether in contract, tort or otherwise, shall be limited to the lesser of the price paid by you in the 12 (twelve) month period immediately preceding the event giving rise to the liability occurring, or €1,500 (One Thousand and Five Hundred Euros).
8. Force Majeure
If the performance by you or Emitter of any of its obligations under these Terms (except for a payment obligation under Section 2 hereof) is delayed or prevented by any act of God, act of governmental authority, act of terrorism, war, riot, fire, flood, severe weather conditions, power failures, or any other circumstances beyond its reasonable control (“Force Majeure”), that party shall not be in breach of this Agreement because of that delay in performance, however any such delay or failure shall be remedied as soon as is practicable.
9. Variation / Amendment
10. Entire Agreement
These Terms, together with Emitter’s Privacy Statement, constitute the entire agreement between you and Emitter in relation to your use of the Service and supersede any and all written or oral previous agreements and understandings between you and Emitter. You acknowledge that you are not relying on, and will not seek to rely on, any arrangement, understanding, representation, warranty, agreement, term or condition which is not expressly included in these Terms.
If any provision of these Terms is, or is found to be, void, invalid or unenforceable, the remaining provisions will continue to be of full force and effect.
12. Governing Law
These Terms, and any non-contractual obligations arising out of or in connection with these Terms, are governed by, and are to be construed in accordance with, the laws of Ireland. You hereby consent to the exclusive jurisdiction of the Irish courts in all matters regarding these Terms and your use of the Service and the Emitter website.
The courts of Ireland (excluding Northern Ireland) are to have exclusive jurisdiction to settle any dispute arising out of or in connection with these Terms and your use of the Service and for such purposes, you irrevocably submit to the exclusive jurisdiction of such courts.