Terms of Service
October 10, 2022
Sowilo Design Services Ltd. and its affiliates (collectively, “Sowilo DS”, “we”, “us” and terms of similar meaning) provides the Sowilo DS mobile application, the Sowilo DS Web application, Sowilo DS Heimdal Pro firmware and it’s supporting services, and add-ons, including third-party services (collectively, the “Sowilo DS Services”) to you (the “User”) subject to these terms and conditions of use (the “Terms”). User can identify the specific Sowilo DS entity providing services to it in User’s Sowilo DS Services Agreement (as defined below). The Terms apply to: (i) User’s use of Sowilo DS Services; (ii) the use of Sowilo DS Services by third parties authorized by User through User’s Sowilo DS account to use Sowilo DS Services and User Content (as defined below); and (iii) the use by such authorized users of any additional software, hardware or other services provided, referred, or recommended by us or third parties as part of, or for use with, Sowilo DS Services.
Please read the Terms carefully before using Sowilo DS Services. By accessing, using or continuing to use Sowilo DS Services, User agrees to be legally bound by the Terms and all terms, policies and guidelines incorporated by reference into the Terms. If User does not agree with the Terms in their entirety, User may not use Sowilo DS Services.
Sowilo DS reserves the right to change or modify any of the terms and conditions contained in the Terms, or any policy or guideline applicable to Sowilo DS Services, at any time upon thirty (30) days’ notice and in its sole discretion. If User does not agree with the changes, User must forthwith expressly advise Sowilo DS of same in writing and can cancel its User account with Sowilo DS effective upon the expiry of the then current term of the User’s Sowilo DS Services Agreement (as defined below). In such an event, until such expiry, the prior Terms will remain in force. Notwithstanding the foregoing, if User renews its Sowilo DS Services Agreement past the then current term thereof, it shall be deemed to have accepted the then most current version of the Terms from and after the renewal date. Subject to the foregoing, any changes or modifications will be effective immediately upon the posting of same on the Site, and User’s continued use of Sowilo DS Services after such time will constitute User’s acceptance of such changes or modifications.
The User should from time to time review the Terms and any policies and documents incorporated therein to understand the terms and conditions that apply to User’s use of Sowilo DS Services. The Terms will always show the “last updated” date at the top.
Sowilo DS Services are for User’s own use only. User may not resell, host, publish, lease or provide in any other way to anyone else, except as expressly permitted by Sowilo DS or under this Agreement. For the purposes of the Terms, the defined terms referenced below have the following meanings.
“Hardware” means the Sowilo DS devices such as the Heimdall Pro and other related hardware technology required by User to utilize Sowilo DS Services and acquired by User from Sowilo DS, as detailed in the sale. “Sowilo DS Services Agreement” means collectively User’s Sales, the Terms, and any other agreements entered into by and between Sowilo DS and User relating to the provision of Sowilo DS Services to User.
2. Registration Data; Account Security
If User registers for an account on Sowilo DS Services, User agrees to (a) provide and maintain accurate, current and complete information as may be prompted by any registration forms on Sowilo DS Services (“Registration Data”); (b) maintain the security of User password(s); (c) maintain and promptly update the Registration Data, and any other information User provides to Sowilo DS, and keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information or data User provides to Sowilo DS directly or through Sowilo DS Services. User is responsible for all activity on User’s Sowilo DS account.
3. Ownership, Copyright and Trademarks
The content made available by Sowilo DS through Sowilo DS Services, including all information, content, firwmare upgrades, lighting model upgrade firmware, logos, marks, interfaces, designs, graphics, pictures, other files, and their selection and arrangement, is called “Content”. Content provided by User is called “User Content”. For example, any Content that a User enters into any Sowilo DS database is User Content of the User. User Content is that User’s property and may only be utilized by Sowilo DS as expressly authorized herein. Without restricting the generality of the foregoing, it is expressly agreed that Sowilo DS is granted a limited license to utilize any User Content of the User as necessary to provide and perform Sowilo DS Services. Other than the User Content, all Content and all software available on Sowilo DS Services or used to create and operate Sowilo DS Services is the property of Sowilo DS or its licensors, and is protected by Canadian and international patent, trademark, and copyright laws, and all rights to Sowilo DS Services, such Content and such software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in Sowilo DS Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation of them by Sowilo DS. Sowilo DS may use and shall be the exclusive owner of any feedback, suggestions, improvements or ideas (“Feedback”) User provides or has provided to Sowilo DS regarding Sowilo DS Services. This applies to Feedback provided to Sowilo DS at any time in any format. User assigns all intellectual property rights in Feedback to Sowilo DS immediately upon communication of such Feedback to Sowilo DS or its representatives. Sowilo DS may use Feedback for any purpose without compensation or attribution to User and User forever waives and surrenders any and all rights in Feedback. If User authorizes third parties to access User Content through Sowilo DS Services, User agrees that we are permitted to provide to them the User Content, and also agrees that we have no responsibility or liability for their use of such User Content. Any such access shall be governed by any applicable end user or API agreements or terms applicable to such third party and may be subject to fees charged by such third party. Sowilo DS Services are provided on an “as is” basis. User acknowledges and accepts all risks associated with using Sowilo DS Services and releases Sowilo DS from any claim or liability in relation thereto. User Content is User’s responsibility. We have no responsibility or liability for it, or for any loss or damage User Content may cause to User or other people.
4. Limited License of User Content to Sowilo DS
We do not claim any ownership interest or rights in User Content of the User except as provided for under the Terms, but we do need the right to use User Content of the User to the extent necessary to provide Sowilo DS Services, now and in the future. Therefore, with respect to any User Content posted to, distributed or otherwise accessible through Sowilo DS Services, User (a) grants Sowilo DS a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, i) in any manner as may be necessary to provide Sowilo DS Services, ii) for any purposes for which Sowilo DS Services from time to time use such User Content, and iii) to ensure the security of Sowilo DS Services, systems and technology.
In addition to the foregoing, User agrees that Sowilo DS may compile, collect, copy, modify, publish and otherwise use User Content in an aggregated fashion (excluding any parts of the User Content that represents personally identifiable information of an individual) (“Aggregated Anonymous Data”) for any lawful purpose. Sowilo DS shall be the owner of the Aggregated Anonymous Data, and may, without limitation, use the Aggregated Anonymous Data to analyze, improve, support and operate Sowilo DS Services, combine it with data from other sources, share it with third parties and otherwise use it for any lawful business purpose, both during the currency, and after the termination, of the User’s Sowilo DS Services Agreement, including without limitation, in order to generate industry benchmarks or best practices guidance, recommendations or similar reports for distribution to and consumption by Sowilo DS, Users and other third parties.
5. Our Limited License of Content to User
Sowilo DS grants User a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access Sowilo DS Services and to view, copy and print the portions of the Content available to User through Sowilo DS Services for the limited purpose of using Sowilo DS Services as contemplated by User’s Sowilo DS Services Agreement. Such license is subject to the Terms, and specifically conditional upon the following: (i) User may only view, copy and print such portions of the Content for User’s own use as contemplated by Sowilo DS Services; (ii) User may not modify or otherwise make derivative works of the Content, or reproduce, distribute or display the Content except as expressly permitted in the Terms; (iii) User may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Content; (iv) User may not use any data mining, robots or similar data gathering or extraction methods; and (v) User may not use Sowilo DS Services or the Content other than for their intended purpose. Sowilo DS may not assist any third party in carrying out these prohibited activities. When User uses Sowilo DS Services to generate a color map for a custom lighting strip the generated firmware is owned by Sowilo DS but is available for you to upgrade your Sowilo DS Hardware. Except as expressly permitted above, any use of any portion of the Content without the prior written permission of Sowilo DS is strictly prohibited and may result in the termination of the license granted in this section without notice, and immediate termination of the Sowilo DS Services Agreement and User account with us. Any such unauthorized use may also violate applicable laws, including without limitation patent, copyright and trademark laws. Unless explicitly stated herein, nothing in the Terms may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this section is revocable by Sowilo DS at any time without notice or warning. User represents and warrants that its use of Sowilo DS Services and the Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law or regulation.
6. Hardware for Sowilo DS Services
Sowilo DS Services are intended to operate together with dedicated hardware via a custom Bluetooth Profile. To minimize the risk of security breaches and technology malfunctions, User agrees to use dedicated hardware for Sowilo DS Services. For example, if a User attempt to install firmware not signed and distributed by Sowilo DS Services on a Heimdal Pro controller, any software related issues on the device is not the responsibility of Sowilo DS. If a User attempts to use other non-dedicated hardware which may not match with the Sowilo DS custom Bluetooth profile we reserve the right to not support User’s Sowilo DS Services as the other hardware may cause conflicts or performance issues with Sowilo DS Services.
7. Other Restrictions on Use of Sowilo DS Services
Any party’s use of Sowilo DS Services is also subject to the following restrictions. User (alone or by assisting or enabling any other party) may not: (i) interfere or attempt to interfere in any manner with the proper workings of Sowilo DS Services, or create or distribute any Sowilo DS Marketing Initiative that adversely affects the functionality or performance of Sowilo DS Services or adversely impacts the behavior of other applications using Sowilo DS Services; (ii) misrepresent User’s identity or intentions when communicating with us in relation to Sowilo DS Services, use the developer credentials licensed to a different individual or entity, allow User credentials to be used by others, or mask User’s usage of Sowilo DS Services; (iii) use Sowilo DS Services in association with, or as a component of, any website that in the sole discretion of Sowilo DS is determined to be obscene or otherwise commercially inappropriate; (iv) use Sowilo DS Services for any application that constitutes, promotes or is used in connection with spam, spyware, adware, other malicious programs or code; (v) use Sowilo DS Services in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, taxation or governmental reporting obligations or other regulatory obligations; (vi) replicate, in whole or in part, the “look and feel” of Sowilo DS Services or portion of them; (vii) use a combination of visual, design, or functional elements that could reasonably be expected to cause confusion between Sowilo DS Services and User’s Sowilo DS Marketing Initiatives among users; (viii) disparage or otherwise negatively represent Sowilo DS Services or do anything that could result in damage or dilution to the goodwill of Sowilo DS and its brand; (ix) use Sowilo DS Services for any application or service that attempts to replace or replicate the essential user experience or functionality of any or all Sowilo DS Services; (x) reverse engineer, decompile or otherwise attempt to extract the source code of Sowilo DS Services or any part thereof; (xi) circumvent or render ineffective any IP address-based functionality or restriction imposed by Sowilo DS Services; (xii) circumvent technological measures to prevent direct database access, nor manufacture tools or products to that effect; (xiii) build conversion functionality that converts Content from the Service to a competing or alternative product or service; or (xiv) at any time when User is operating a Sowilo DS Marketing Initiative, solicit, interfere with or endeavour to entice away from us any of our Users.
8. Providing a Reliable and Secure Service
We put a great deal of effort into ensuring that Sowilo DS Services operate on a reliable basis and where applicable provide a secure environment for User’s data. We use what we believe to be “best-of-class” infrastructure and hosting services and security technologies and services that we believe provide User with a secure and safe environment. However, no system is perfectly secure or reliable, the Internet, hardware, power sources, and local servers and associated technology are inherently unreliable at times and can be an insecure medium, and the reliability of hosting services, internet intermediaries, User’s internet service provider, servers, databases, access to or use of financial or business records, and other service providers cannot be assured or assumed. When User uses Sowilo DS Services, User acknowledges User understands and accepts these risks, and User accepts sole responsibility for choosing to use a technology that does not provide perfect security or reliability.
9. No Responsibility for Third-Party Material
Sowilo DS Services may contain links or references to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information, including third party suppliers, that User may use in connection with User’s use of Sowilo DS Services (i.e Phillips Hue Bridge). User uses links to Third-Party Sites and any Third-Party Content or service provided there, at User’s own risk. Sowilo DS makes no claim or representation regarding Third-Party Content or Third-Party Sites, and provides them or links to them only as a convenience. Inclusion in Sowilo DS Services of a link to a Third-Party Site or Third-Party Content does not imply Sowilo DS’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. Sowilo DS accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Sites, or websites linking to Sowilo DS Services. When User leaves Sowilo DS Services, our Terms and policies no longer govern. User should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation User feels necessary or appropriate before proceeding with any transaction with any third party. The provider of any third-party service is solely responsible for that third-party service, the content therein, any warranties to the extent that such warranties have not been disclaimed, any training, support or maintenance for the third-party services, and any claims that User or any other party may have relating to that third-party services or User’s use of that third-party service. User acknowledges that: (i) User is purchasing the license to each third-party service from the provider of that third-party service; (ii) Sowilo DS is not acting as agent for the provider in providing each such third-party services to User; (iii) Sowilo DS is not a party to the license between User and the provider with respect to that third-party services; and (iv) Sowilo DS is not responsible for that third-party services, the content therein, or any warranties or claims that User or any other party may have relating to that third-party services or User’s use of that third-party services. User acknowledges and agrees that Sowilo DS is a third party beneficiary of the End User License Agreement for each third-party services, and that, upon User’s acceptance of the terms and conditions of the license to any such third-party services, Sowilo DS will have the right (and will be deemed to have accepted the right) to enforce such license against User as a third party beneficiary thereof.
10. Warranty Disclaimer
Sowilo DS Services, but not including Hardware, and any third-party services are provided to User on an “as is” basis without any warranties from Sowilo DS of any kind, either express or implied. Sowilo DS expressly disclaims all other warranties, express or implied, including without limitation implied warranties of useability, fitness for a particular purpose, title and non-infringement. Sowilo DS does not represent or warrant that Sowilo DS Services are accurate, complete, reliable, current or error-free. Sowilo DS Services and access to data may be interrupted or unavailable at any time and User accepts all risks associated with such unavailability or interruption. User should establish other systems to ensure business continuity and to ensure the accuracy or reliability or any business, financial or accounting data generated by the use of Sowilo DS Services or otherwise stored or accessed through Sowilo DS Services. While Sowilo DS attempts to make User’s access to and use of Sowilo DS Services safe, Sowilo DS does not represent or warrant that the Sowilo DS Content, the third-party services or Sowilo DS Services are free of viruses or other harmful components or will be available without interruption or error.
11. Limitation of Liability; Indemnity
User waives and shall not assert any claims or allegations of any nature whatsoever against Sowilo DS, its sponsors, suppliers, contractors, advertisers, vendors or other partners, licensors, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to User’s use of Sowilo DS Services or any third-party services, including, without limitation, any claims or allegations relating to infringement of proprietary rights, or allegations that any Released Party has or should indemnify, defend or hold harmless User or any third party from any claim or allegation arising from User’s use or other exploitation of any third-party services or Sowilo DS Services. User uses Sowilo DS Services completely at User’s own risk. User agrees that this is fair and reasonable.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER SOWILO DS NOR ANY OTHER RELEASED PARTY SHALL BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF ACCESS TO OR USE OF DATA OR LOSS OF GOODWILL, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE ANY OR ALL SOWILO DS SERVICES OR ANY THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM USER’S RELIANCE ON SOWILO DS SERVICES OR ANY THIRD-PARTY SERVICES OR OTHER INFORMATION OBTAINED FROM SOWILO DS OR ANY OTHER RELEASED PARTY OR ACCESSIBLE VIA SOWILO DS SERVICES OR ANY THIRD-PARTY SERVICE, OR THAT RESULT FROM MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DATA OR EMAIL, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SOWILO DS OR ANY OTHER RELEASED PARTY’S RECORDS, PROGRAMS OR SERVICES. In no event shall the aggregate liability of Sowilo DS, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of Sowilo DS Services or any third-party services exceed any compensation paid by Sowilo DS for access to or use of Sowilo DS Services for the three (3) months immediately prior to the date of any claim. Custmer shall defend, indemnify and hold harmless Sowilo DS and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of User’s use of Sowilo DS Services or any third-party services and from the use Sowilo DS Services or any third-party services by any person to whom User gives access to User account, including any claims made by any person that any of User Content of the User infringes the rights, including the intellectual property rights, of any third party. Some jurisdictions limit the scope of limitations of liability in which event Sowilo DS claims the full scope of limitation of liability as may be allowed in any applicable jurisdiction.
13. Applicable Law and Venue
User and Sowilo DS both benefit from establishing a predictable legal environment in regard to Sowilo DS Services. Therefore, User and Sowilo DS explicitly agree that all disputes, claims or other matters arising from or relating to User’s use of Sowilo DS Services or any third-party services shall be exclusively governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts sitting at Toronto, Ontario. The parties hereto waive any right to trial by jury in respect of any dispute arising from or related to the Sowilo DS Services Agreement. Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) involving Sowilo DS and arising out of or relating to (a) the Terms; (b) Sowilo DS Services or any associated third-party services; (c) oral or written statements, advertisements or promotions relating to Sowilo DS Services or any associated third-party services; or (d) the relationships that result from Sowilo DS Services or any associated third-party services (collectively, a “Claim”), will be referred to and determined by individual arbitration by a single arbitrator (to the exclusion of the courts) sitting at Toronto, Canada in accordance with the Arbitrations Act of Ontario. Arbitration can be initiated by either party delivering to the other party a written notice of arbitration invoking this provision. The arbitrator’s authority is limited to claims between User and us alone. Claims may not be joined or consolidated unless User and we consent in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. The arbitrator’s decision will be final and binding. Each party will bear its own expenses under such arbitration, subject to the authority of the arbitrator to make an award of legal costs in accordance with the arbitrator’s authority. Except where prohibited by applicable law, User waives any right User may have to commence or participate in any class action against Sowilo DS related to any Claim and, where applicable, User also agrees to opt out of any class proceedings against Sowilo DS. Without limiting the foregoing, User and Sowilo DS will not have the right to participate in a representative capacity or as a member of any class pertaining to any Claim or other matter related to the Sowilo DS Services Agreement. If User has a Claim, User should give written notice of arbitration by registered mail to Sowilo DS’s head office. If Sowilo DS has a Claim, it will give User notice of arbitration at User’s address provided in User’s Registration Data. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules under Arbitrations Act of Ontario in effect on the date of the notice in the Province of Ontario. To the extent arbitration as described above is prohibited by applicable law, User agrees that all Claims shall be heard and resolved in a court of competent subject matter jurisdiction located in Toronto, Ontario. User consents to the personal jurisdiction of such courts over User, stipulates to the fairness and convenience of proceeding in such courts and submits to their exclusive jurisdiction, and covenants not to assert any objection to proceeding in such courts.
Notwithstanding the foregoing, Sowilo DS shall be entitled, at its election, to apply to a court of competent jurisdiction: (i) for interim or permanent injunctive relief, a mandatory order, restraining order, or other like relief to restrain an actual or threatened breach of the Sowilo DS Services Agreement and Sowilo DS’s rights under it by any party and specifically but not limited to protection of the intellectual property, information technology, brand, trademarks, and other proprietary material of Sowilo DS or its suppliers or licensors; and (ii) to collect any outstanding amounts that User owes to Sowilo DS. With respect to User’s use of Sowilo DS Services User, User is responsible for compliance with all local laws applicable to User and User’s use of Sowilo DS Services and User agrees to indemnify Sowilo DS and the other Released Parties for User’s failure to comply with any such laws.
By Us. We may, in our sole discretion and for any reason or no reason, with or without notice, terminate your account, disable access by other Service users to any of Your Content, disable your access to the Service or any related services including support, and/or terminate any license granted to you hereunder (including licensed rights to any content or materials downloaded by you during your use of the Service), at any time. You agree that we are not and shall not be liable to you or any third-party for any such termination. We do not permit unlawful, infringing, fraudulent, or otherwise illegitimate activities on the Service, and reserve the right to terminate access to the Service, in cases of actual or suspected fraud, or violations of these Terms of Service or other laws, rules or regulations. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies we may have at law or in equity.
By You. A User can terminate their Sowilo DS account at any time and at which point, User’s User Content will, shortly thereafter, cease to appear on Sowilo DS Services. Sowilo DS will not retain an archival copy of User’s User Content after termination and will be deleted immediately.
Certain Terms Still Apply After Termination. Upon termination of these Terms of Service, any provision of these Terms of Service which, by its nature or express terms should survive, will survive such termination or expiration.
If any provision of the Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. Sowilo DS may assign any or all of its rights hereunder to any party without User’s consent. User is not permitted to assign any of User’s rights or obligations hereunder without the prior written consent of Sowilo DS, and any such attempted assignment will be void and unenforceable. The Sowilo DS Services Agreement constitutes the entire agreement between User and Sowilo DS regarding User’s use of Sowilo DS Services or any associated third-party services, and supersedes all prior or contemporaneous communications whether electronic, oral or written between User and Sowilo DS regarding User’s use of them. User has reviewed, understood and accepted the terms and conditions set forth in the Sowilo DS Services Agreement and has either consulted with legal counsel prior to its execution or has knowingly forgone its right to consult with legal counsel prior to such execution. The parties confirm that it is their wish that the Terms, as well as any other documents relating to these Terms, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.