TERMS OF SERVICE - WIGGWIGG
These Terms of Service govern the use of the WIGGWIGG software solution (the “Platform”), offered by WIGGWIGG Inc. (“WIGGWIGG”) and made available to the individual or entity obtaining a subscription to the Platform (the “Customer”).
WIGGWIGG’s contact details
WIGGWIGG Inc. 100-394 boulevard Maloney Ouest Gatineau, Quebec J8P 6W2 Canada Telephone: 450-259-1820 (administrative line only; customer support is provided by email and in the app, not by phone) Email: support@wiggwigg.ca
1. INTERPRETATION
1.1 Definitions
In these Terms of Service, the following words and phrases used with a capital letter have the meanings ascribed to them below:
“Affiliate” means an entity that controls WIGGWIGG, is controlled by WIGGWIGG or is under common control with WIGGWIGG.
“Business Hours” means 9:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday, excluding statutory holidays in the Province of Quebec.
“Customer Data” means any information or data that is uploaded to the Platform by the Customer;
“Documentation” means any human-readable documentation provided by WIGGWIGG describing the Platform features and facilitating the configuration of the Platform.
“Fees” means the fees payable by the Customer in consideration for the Services, as set forth in the terms of the subscription selected by the Customer.
“Hosting Provider” means a provider retained by WIGGWIGG to provide the hardware and software infrastructure necessary for the operation of the Platform and the hosting of the Platform and Customer Data;
“Telecommunication Provider” means a service provider retained by WIGGWIGG to provide telephone and SMS communications on telephone networks;
“Telecommunication Data” means the content of a Customer incoming and outgoing messages that transit on telephone networks;
“Login Credentials” means a method, including a username and password, for a user to access a specific account on the Platform.
“Personal Information” means information about an identifiable individual.
“Platform” means the software solution marketed under the WIGGWIGG trademark that is accessible from a web browser or other method designated by WIGGWIGG from time to time, including the software and hardware infrastructure necessary for its operation.
“Services” means access to the features offered by the Platform in accordance with these Terms of Service.
2. GENERAL CONDITIONS APPLICABLE TO SERVICES
2.1 Nature of Services
Subject to compliance with the terms and conditions of this Agreement, WIGGWIGG allows the Customer to access and use the Platform in accordance with these Terms of Service.
The Customer acknowledges that no assignment of intellectual property is effected by the agreement between Customer and WIGGWIGG and that the Customer may not claim any intellectual property rights in or to the Platform, the content accessible through the Platform (except Customer Data) or the Documentation. WIGGWIGG reserves all its rights with respect to the Platform, all Platform components, all content available through the Platform (except Customer Data) and the Documentation.
2.2 Usage Limitations
The Services may be offered to the Customer in the form of a subscription plan comprising usage limitations. Where applicable, the Services are limited:
a) To the features included in the subscription selected by the Customer, if applicable.
b) By the usage limits imposed by the subscription selected by the Customer, if any.
2.3 Login Credentials
The Customer is responsible for maintaining control and security over the Login Credentials and shall be solely responsible for any action taken under the Login Credentials whether or not such access or use is authorized by the Customer. The Customer agrees to promptly notify WIGGWIGG if a Login Credential is compromised or if the Customer has reason to believe that a Login Credential may be used in an unauthorized manner.
2.4 Prohibited use
The Customer agrees not to, directly or indirectly, do the following nor to allow or tolerate that anyone do the following:
a) access, or attempt to access, the source code or object code of the software included in the Platform;
b) copy all or part of the Platform, the content available through the Platform (except Customer Data) or the Documentation, except as expressly permitted by these terms;
c) decompile, disassemble or reverse engineer the Platform, in whole or in part, or create any derivative work in whole or in part of the Platform or the Documentation;
d) access or attempt to access data belonging to other WIGGWIGG customers;
e) do anything that a reasonable person would consider would impose an unreasonable load on the Platform;
f) use the Platform or Documentation to develop software or services that are similar or offer the same features;
g) use the Platform to perform comparative performance tests (benchmarking);
h) disable or circumvent any protection mechanism related to the Platform or Documentation;
i) use WIGGWIGG’s trademarks or logos without the express written permission of WIGGWIGG;
j) upload content to the Platform that violates applicable law or infringes the intellectual property rights of third parties;
3. SOFTWARE SERVICES
3.1 Updates
The Platform may be updated from time to time and new features may be added to the Platform. WIGGWIGG will make such updates and new features available to the Customer at its sole discretion and makes no commitment regarding the development of future versions of the Platform. The Customer acknowledges that its subscription is not based on any promise of development of a future feature nor on any communication from WIGGWIGG regarding a future feature of the Platform.
3.2 Maintenance
WIGGWIGG and/or its Hosting Providers and Telecommunication Providers may from time to time perform maintenance activities which may affect the Services. WIGGWIGG will use reasonable efforts to ensure that maintenance is carried out in a manner that minimizes the impact of periods of unavailability of the Platform. When maintenance resulting in a period of unavailability of the Platform is scheduled in advance, WIGGWIGG will use reasonable efforts to notify its customers of the time and expected duration of unavailability.
3.3 Technical support
WIGGWIGG may provide technical support to the Customer during Business Hours at WIGGWIGG’s discretion. WIGGWIGG makes no undertaking regarding the availability of technical support.
4. TELECOMMUNICATION SERVICES
4.1 Messages sent and received through the Platform
Customer is solely responsible for the content sent through the Platform and acknowledges that WIGGWIGG does not control the content received by the Customer through the Platform.
4.2 Acceptable Use
Customer agrees to respect the acceptable use policies adopted from time to time by the Telecommunication Providers, which are incorporated in these Terms of Service by reference. Up-to-date Acceptable Use Policies can be found here.
4.3 Number Porting
Telephone number porting is subject to the terms and conditions of our Telecommunication Providers. Moving a number to another provider is the Customer’s right. Today it goes through our support: the Customer opens a support ticket in the Platform and WIGGWIGG handles it at no charge. Porting a number in is not yet offered. WIGGWIGG will process porting requests in accordance with applicable laws and regulations.
4.4 Power of Attorney
Customer (“Appointing Party”) hereby makes, constitutes and appoints WIGGWIGG, with full power of substitution and re-substitution, each Appointing Party’s true and lawful attorney-in-fact for the Appointing Party and in the Appointing Party’s name, place and stead and for the Appointing Party’s use and/or benefit, to sign, execute, certify, acknowledge, swear to, file and record all agreements, certificates, instruments and other documents with or for the benefit of any third party as may be required to provide the Services, including, without limitation, any letters of authorization with respect to the porting of any telephone number(s).
4.5 Telecommunications Monitoring
Customer acknowledges and expressly consents that WIGGWIGG or a Telecommunication Provider may lawfully and automatically sample, record, analyze, and process Customer’s Telecommunication Data solely to detect, prevent, and investigate fraud, abuse, or unlawful use of the Services, and to protect WIGGWIGG’s or the relevant Telecommunication Provider’s rights, users, and network. Such automated processing is by default limited to Customer-originated audio, and WIGGWIGG or its Telecommunication Provider will not intentionally capture or retain non-Customer participant audio unless all legally required consents are obtained or another lawful basis applies. Customer is solely responsible for providing all required disclosures and obtaining all consents from its end users and other call participants, including any all-party consent required under the law applicable in any jurisdiction. WIGGWIGG or its Telecommunication Provider may transform raw audio into derived, non-content security data for fraud-prevention purposes and will delete the raw audio thereafter. Neither WIGGWIGG nor its Telecommunications Providers will use any audio or derived data for marketing or unrelated analytics and will use or disclose covered customer information only as permitted by applicable law. For clarity, the activities described in this Section are for WIGGWIGG’s or its Telecommunication Providers’ internal security, abuse prevention, and service quality purposes and do not constitute or authorize any court ordered lawful intercept.
5. EMERGENCY CALLING
5.1 Limitations of VoIP 911 Services
There are important limitations that the Customer must understand and acknowledge. WIGGWIGG recommends that all 911 calls be made through a wired phone line or wireless network whenever possible. With traditional phone services, your 9-1-1 call is sent directly to the nearest emergency response centre. With VoIP phone service, your 9-1-1 call may be forwarded to a third-party service provider that will automatically or manually route your call to the most appropriate emergency response centre.
a) Customer dialing 9-1-1 may be served by nomadic VoIP 9-1-1. Customers will be routed to an emergency operator and will have to provide their specific address/location verbally. Once this information has been successfully provided to the operator, the operator will route the Customer’s call to the appropriate emergency response center corresponding to the provided address/location. The Customer acknowledges that the call may not be handled by the emergency response center in the same way as traditional wireline 9-1-1 services. Customer acknowledges that delays may occur in the dispatching of emergency services to the correct address.
b) If enhanced 911 Services are available, the Telecommunication Provider will provide the emergency response center only such name, address and telephone number information as Customer has provided to WIGGWIGG. Customer must not block their telephone number when calling 911. For each telephone number for which Customer desires 911 Services, Customer must provide WIGGWIGG with a correct and valid emergency response address for that number and update such address as necessary. The address information provided must include sufficient information to enable emergency responders to locate the calling party. Customer is solely responsible to promptly update this information whenever necessary to reflect changes.
c) Customer acknowledges that 911 Services are not available outside of Canada. 9-1-1 calls originating from a location outside of Canada cannot be routed to any emergency calling center or emergency service by an emergency operator.
d) Service outages, including an internet outage, may prevent 911 calls from being routed to an emergency operator or a emergency calling center.
e) Customer shall not disconnect a 911 call unless asked by the dispatcher, as the dispatcher may not have the Customer contact information. If the call is disconnected, the Customer shall call back immediately.
5.2 Fees Applicable to Improperly Configured Calls
For each 911 call without a properly configured address of record, the Customer will be charged a fee of 300$. Improperly configured 911 calls are grounds for immediate termination of telecommunication Services.
5.3 Authorized Use
911 Services are meant for:
a) Customers who principally utilize such services at their residence and occasionally at other locations, when using mobile device;
b) Customers that are enterprises that should reasonably be expected to have reasonably customary 911 usage patterns due to the nature of such enterprise’s business or operations;
c) end users that operate non-emergency call center(s) that should reasonably be expected to have only occasional use of 911 due to the nature of such call center’s business or operations; and
d) end users that operate call center(s) that support the deaf and/or hard of hearing community, which are more commonly known as “relay services.”
For clarity, facilities, such as assisted living facilities, nursing homes and other facilities reasonably expected to have a high volume of 911 calls do not qualify as having a reasonably customary use of 911 services.
5.4 Limitation of Liability
Customer declares having understood the limitation associated with VoIP 911 Services. Customer agrees that neither WIGGWIGG nor its Telecommunication Provider shall have any liability or responsibility based on the limitations associated with 911 services provided through VoIP.
6. HOSTING AND DATA
6.1 Zero-Knowledge Encryption
Customer acknowledges that WIGGWIGG uses zero-knowledge encryption for passwords, identity details, contacts, and message content stored in the parts of the Platform protected by that encryption. WIGGWIGG does not hold the keys needed to read those categories. There is no password reset. Access to those categories can be regained only with the recovery key the Customer saved when it was offered. Operational data needed for phone routing, billing, and support, optional features that require server-side processing, the illegal-content check performed on picture messages, and copies preserved when content is flagged are not covered by this statement. Those server-readable and Customer-enabled exceptions are described in the Privacy Statement. WIGGWIGG cannot provide the Customer with a decrypted copy of the zero-knowledge-encrypted categories unless the Customer provides its password or recovery key.
6.2 Confidentiality
Unless required by law or by a valid order from a competent authority, WIGGWIGG undertakes to keep Customer Data confidential and not to use Customer Data for any purpose other than providing its services. This obligation does not extend to Customer Data found to be in violation of these Terms of Service.
6.3 Hosting Providers
The Customer agrees that Customer Data may be hosted by a third party. WIGGWIGG may change its Hosting Provider at its sole discretion. Customer Data is currently hosted in Canada; WIGGWIGG will give notice before hosting it elsewhere. Should that happen, the Customer acknowledges that the companies operating those facilities may be subject to laws different from those applicable in the Customer’s jurisdiction.
6.4 Information Security
WIGGWIGG shall select Hosting Providers that offer industry standard security measures and that commit in writing to WIGGWIGG to maintain the confidentiality of Customer Data and to use Customer Data only for the purposes necessary to provide the hosting services agreed upon with WIGGWIGG.
WIGGWIGG agrees to implement technical and organisational security measures that conform to industry standards.
6.5 Rights in Customer Data
WIGGWIGG does not claim any ownership rights to the Customer Data and acknowledges that no assignment of the Customer’s rights in and to the Customer Data in favour of WIGGWIGG is made under this agreement. WIGGWIGG undertakes not to use the Customer Data other than to the extent necessary to provide the Services or after having been duly authorized to do so by the Customer.
The Customer grants WIGGWIGG a non-exclusive, universal and royalty-free license to reproduce, use and modify the Customer Data only to the extent necessary to provide the Services.
6.6 Customer Data Representations
The Customer represents and warrants to WIGGWIGG that it has all the necessary rights to upload the Customer Data to the Platform and that any operations that the Customer or WIGGWIGG (to the extent authorized under these Terms of Service) may perform on the Customer Data will not infringe on the rights of third parties.
7. PERSONAL INFORMATION PROCESSING
The Customer consents to WIGGWIGG’s processing of personal information as set forth in WIGGWIGG’s Privacy Statement. The Customer is solely responsible for its own processing of personal information through its use of the Services.
8. FEEDBACK
If the Customer or any person having access to the Platform under these terms communicates with WIGGWIGG about improvements and modifications to the Platform or the Services (“Feedback”), the Customer acknowledges that: (i) WIGGWIGG has no obligation of confidentiality, express or implied, with respect to the Feedback (except regarding information otherwise deemed confidential hereunder); (ii) WIGGWIGG is entitled to use or disclose (or choose not to use or disclose) the Feedback for any purpose whatsoever, in any manner whatsoever, on any medium whatsoever, anywhere in the world; (iii) WIGGWIGG may already have considered or be developing the same or similar elements to those mentioned in the Feedback; and (iv) no remuneration or compensation will be paid by WIGGWIGG in consideration of the Feedback.
9. FEES AND BILLING
9.1 Fees
In consideration of the Services, the Customer agrees to pay WIGGWIGG the Fees provided for in the package selected when subscribing to the Services.
9.2 Taxes
The Fees do not include applicable taxes, including sales, value-added, goods and services, special and harmonized taxes.
The Customer is responsible for all applicable taxes arising from or resulting from its subscription to the Platform or the provision of the Services except taxes levied on the income of WIGGWIGG and its Affiliates. To the extent that WIGGWIGG collects these taxes, they are calculated according to the product purchased, the location declared and confirmed by the Customer during checkout or an update to renewal information, and WIGGWIGG’s applicable tax obligations. These amounts are added to the Fees and shown to the Customer before the purchase is confirmed. Any tax exemption will only apply from the date on which WIGGWIGG is satisfied with the satisfactory proof of exemption, in its sole discretion. If WIGGWIGG does not charge taxes, Customer is responsible for determining whether taxes are due, and if so, for remitting any applicable taxes to the appropriate tax authorities in its jurisdiction.
9.3 Suspension of services
If the Fees are not paid when due for any reason, WIGGWIGG may suspend the Services and access to the Platform 10 days after notifying the Customer through the Platform if the Customer does not pay all Fees due in full.
9.4 Refunds
The free trial involves no Fees and therefore gives rise to no refund.
The Customer may cancel a subscription at any time. Upon cancellation, WIGGWIGG refunds the unused portion of the Fees paid for the current period, prorated by the time remaining and adjusted for actual usage of the Services during the period. Time during which the Services were interrupted does not count as usage for this calculation, whether or not the interruption originated with WIGGWIGG or with an upstream provider. Refunds are issued to the original payment method where payment processing allows; payments made in cryptocurrency are refunded as WIGGWIGG credits, as the nature of that payment method does not allow a direct refund.
Promotional or earned credits, obtained without payment, have no monetary value and are non-refundable.
9.5 Donations
WIGGWIGG accepts voluntary donations through its website. A donation supports the development of the Platform: it is not a payment of Fees, it grants no Services, no credit and no interest in WIGGWIGG, and it is not attached to any account.
A donation is one-time. It is not a subscription and it does not renew.
A donation is final and non-refundable, including when made in cryptocurrency. Section 9.4 does not apply to it.
No sales tax is charged on a donation: neither GST nor QST is added to the amount chosen. WIGGWIGG is not a registered charity: no tax receipt is issued and a donation is not tax-deductible.
10. LIMITATION OF WARRANTY
Not applicable to consumers in some jurisdictions.
Except as required by applicable law, the Platform and the Services are provided by WIGGWIGG “as is” and without any warranty, express or implied. The parties acknowledge that any warranty provided by law that may be disclaimed by contract is hereby excluded. In particular, WIGGWIGG does not warrant (a) that the Services will be rendered in an uninterrupted, secure, error-free, accurate and complete manner, (b) that the Customer will obtain any results following the use of the Platform or the Services.
11. LIMITATION OF LIABILITY
11.1 Exclusion of certain damages
Not applicable to consumers in some jurisdictions.
Subject to limitations of public order provided by law that cannot be waived by contract, WIGGWIGG disclaims any liability for any indirect or consequential damages, including punitive, incidental or special damages, arising out of the Services, the Customer’s use of the Platform, or WIGGWIGG’s failure to provide the Services, whether such liability is based on contract, tort, negligence, strict liability or any other legal theory, even if WIGGWIGG has been advised of the possibility of damages that may be caused to Customer by the provision of the Services or by any interruption or suspension of the provision of the Services.
Without limiting the generality of the foregoing, the parties exclude WIGGWIGG’s liability for damages for loss or corruption of data, loss of profits or business opportunities, failure to realize expected savings, cost of replacement goods and services, fees and expenses of consultants or legal advisors.
11.2 Monetary limitation
Not applicable to consumers in some jurisdictions.
Subject to the limitations of public order provided for by law that cannot be waived by contract, WIGGWIGG’s liability based on the present contract will be limited to a sum corresponding to (a) the Fees paid by the Customer during the 12 months preceding the occurrence generating liability or (b) one hundred Canadian dollars ($100), whichever is greater.
12. INDEMNIFICATION
The Customer agrees to indemnify, defend and hold harmless WIGGWIGG and its directors, officers, employees, shareholders, consultants and Affiliates (collectively the “WIGGWIGG Indemnitees”) from and against any and all third party claims brought against any of the WIGGWIGG Indemnitees (including, without limitation, any direct or indirect costs, losses, liabilities, fines, judgments, costs, interest, penalties or expenses, including reasonable disbursements and fees of their legal counsel, which they may incur as a result of any such claims) arising from:
a) the use of the Platform by the Customer in violation of these Terms of Service or any other agreement between WIGGWIGG and the Customer;
b) the authorized use of the Customer Data by WIGGWIGG;
c) any allegation that the Customer violated CASL;
d) the failure of the Customer to comply with its obligations with respect to the protection of Personal Information;
e) the violation by the Customer of any applicable law or regulation;
f) gross negligence or intentional acts of the Customer.
13. DURATION AND TERMINATION
13.1 Duration of the contract
These Terms of Service shall remain in effect for as long as the Customer uses the Platform or the Services.
The duration of the Customer’s subscription to the Platform and the Services is determined as agreed between WIGGWIGG and the Customer.
13.2 Fixed-term subscription
Insofar as the Customer has subscribed to a fixed-term subscription, the parties expressly exclude the application of Articles 2125 to 2129 of the Civil Code and stipulate that the subscription may only be terminated by the Customer in the event of failure by WIGGWIGG to fulfill its obligations.
13.3 Termination of the Agreement
WIGGWIGG may terminate the Customer’s subscription and stop providing the Services immediately if the Customer fails to comply with his obligations under this contract and does not remedy such failure within 10 days of a written notice stating the default.
13.4 End of the Agreement
In the event that this agreement is terminated or ceases to be in force for any reason, WIGGWIGG agrees to return to the Customer any documentation or material belonging to the Customer and to use commercially reasonable efforts to allow the Customer to take possession of all Customer Data.
The obligations of the parties with respect to intellectual property, confidentiality, indemnification and fees owed to WIGGWIGG shall continue to apply notwithstanding the termination of the agreement.
13.5 Transition
Upon termination of this Agreement for any reason, WIGGWIGG will retain and allow the Customer to download the Customer Data hosted through the Platform for a minimum period of thirty (30) days. At the end of this period, WIGGWIGG may destroy the Customer Data without further notice.
14. GENERAL PROVISIONS
14.1 Notice
Any notice required or permitted to be given under this Agreement shall be in writing and provided through the Platform.
14.2 Applicable law
This Agreement shall be governed in all respects by, and construed in accordance with, the laws in force in the Province of Quebec, including the laws of Canada applicable therein, including any question as to its validity or enforcement.
14.3 Dispute Resolution
Except to the extent prohibited by law, the parties agree to choose the judicial district of Montreal, Province of Quebec, to the exclusion of any other judicial district that may have jurisdiction, as the exclusively appropriate venue for the institution and hearing of any legal proceedings relating to this contract.
14.4 No Waiver
The failure of a party to exercise its rights under this agreement, or the delay in exercising them, shall not constitute a waiver by that party of any right. Any waiver of a right under this Agreement shall be effective only if made expressly and in writing.
14.5 Modification
WIGGWIGG may make changes to these Terms of Service. The Customer will be notified in writing of any such change at least 30 days prior to the changes coming into effect. The Customer’s sole remedy in the event of a change to these Terms of Service is to terminate this agreement in accordance with its terms.
14.6 Independence of provisions
To the extent possible, each provision of this Agreement shall be construed so as to be enforceable and valid under applicable law, but in the event that any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason under applicable law or regulation in any jurisdiction, such invalidity, illegality or unenforceability shall not affect the validity of the remaining provisions of this Agreement.
14.7 Assignment
The Customer may not assign or otherwise transfer any of its rights and obligation under this Agreement without the prior written consent of WIGGWIGG which shall be at WIGGWIGG’s sole discretion.
WIGGWIGG may assign its rights and obligations under these Terms of Service and any other agreement governing Customer subscription to the Services in connection with the sale of its business.