Please review these Master Terms of Service (“Master Terms of Service”) thoroughly. Capitalized words are given the meanings listed below under Section 1 (Definitions and How to Interpret the Master Terms of Service). If you have questions on these Master Terms of Service, please contact us before you use our Services.
Wherever used in this Agreement, “you”, “your”, “Customer”, and similar terms mean the person or legal entity accessing or using the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, “you”, “your” or “Customer” means the company or other legal entity on whose behalf you are using the Services.
By purchasing access to or using the Services you are agreeing to the terms and conditions in these Master Terms of Service, which means you will be in a legal agreement with 10712086 Canada Inc., doing business as the Tourism Technology Company (the “Company”, "we", “us”, "our", and similar expressions).
Additional terms may apply to your use of the Services:If you are an Enterprise Customer, these Master Terms of Service and the additional terms applicable to Enterprise Customers found here apply to you.
• If you are a Business Customer, these Master Terms of Service and the additional terms applicable to Business Customers found here apply to you.
• If you are an Authorized User of an Enterprise Customer or Business Customer, the terms that apply to you are available here.
• If you are a Guest, these Master Terms of Service and the additional terms applicable to Guest found here apply to you.
Definitions and Interpretation
a. Definitions. In this Agreement, the following defined terms have the meanings below:
i. “Business Provider” means a business, legal entity, or individual that provides, as applicable, an accommodation for short term stays or rentals and related activities, experiences, and services to Guests.
ii. “Additional Users” means the number of Authorized Users accessing the Platform exceeding the maximum number specified in the applicable Order.
iii. “Affiliate” means, with respect to a legal entity, an entity owned by, controlling, controlled by, or under common control with, directly or indirectly, a party (but only for as long as such entity meets these requirements). For this purpose, one entity “controls” another entity if it has the power to direct the management and policies of the other entity (for example, through the ownership of voting securities or other equity interests, representation on its board of directors or other governing body, or by contract).“
iv: Aggregate Data” means anonymized or aggregated Customer Data and other information relating to the Services and the Platform and your use of them such that you are no longer identified or identifiable by reference to such data or with the combination of that data with other datasets.
v. “Agreement” means these Master Terms of Service together with all additional terms stated herein to be applicable, Orders, SOWs, and any addenda, schedules, and exhibits (as such are amended, supplemented, or replaced from time to time) and all other terms referenced in these Master Terms of Service.
vi. “API” means a set of programming instructions and standards through an application programming interface intended to be used as an interface by software components to communicate with each other.
vii. “App” means our mobile application made available to you for use with the Platform.
viii,. “Applicable Laws” means all applicable laws, treaties, rules, regulations, ordinances, by-laws, codes of conduct or ethics, rules of governing bodies, court orders, or governmental orders, whether international, federal, state, provincial, municipal, or local, to which the applicable Party is subject, including Privacy Laws.
ix “Authorized User” means an individual, such as an employee, consultant, or contractor, using the Services on behalf of an Enterprise Customer or Business Customer for the Enterprise Customer’s or Business Customer’s business purposes.
x. “Beta Service” means services or functionality within the Platform which are designated as beta, preview, evaluation, or a similar description and meant for testing or evaluation purposes rather than general commercial use by Customers.
xi. “Claim” means an action, allegation, cause of action, cease and desist letter, charge, citation, claim, demand, directive, lawsuit, or other litigation or proceeding, or notice.”
xiii. “Customer Data" means any information, data, materials, expressions, graphics, logo, branding, trademarks, or other content posted, provided, entered, or made available by the Customer or an Authorized User on the Platform, or by the Company on the Customer's or an Authorized User’s behalf, for the purpose of the Customer’s or an Authorized User’s use of the Platform or facilitating the Customer’s or an Authorized User’s use of the Platform, but specifically excluding any Aggregate Data.
xiii. “Customer Services” means the products and services that a Customer provides to its own customers, clients, or others.
xiv. “Damages” means assessments, fines, bona fide settlements, costs, damages, expenses (including reasonable attorneys’ and accountants’ fees), judgments, liabilities, losses, or penalties, incurred in connection with a Claim.
xvi. “Documentation” includes all manuals, instructions, publications, instructions, video content, diagrams, and similar materials related to the Services provided by or authorized by the Company.
xvii. “Enterprise Customer” means a destination marketing organization or regional tourism organization that markets and provides services to Business Customers and Guests.
xviii. “Guest” means a legal entity or individual using the Platform to access and purchase the products or services of a Business Customer.
xix. “Electronic Communications” means the communications to or from others, including us, that the Platform allows you to send and receive by electronic means.
xx. “Fees” means the Platform Fees, fees listed under an applicable Order or SOW, and applicable fees for Beta Services, Professional Services, and any other fees as set out in this Agreement.
xxi. “Intellectual Property Rights” means any right, title, and interest, throughout the world, in and to any products, services, or technology, including but not limited to rights arising from copyrights, patents, mask works, trademarks, service marks, trade secrets, inventions (whether or not patentable), know-how, authors’ rights, moral rights, rights of attribution, any other proprietary rights, and all applications and rights to apply for registration or protection of such rights in any country.
xxii. “Nonconformity” means failure of the Platform to operate in substantial conformity with the features and functionality stated in the applicable Order.
xxiii. “Order” means an order placed by the Customer through the Company’s website, Platform, or App, or a signed order form executed by the Company and the Customer (or a Customer Affiliate), as applicable, each of which is incorporated into this Agreement, and specifies the Services to be provided by the Company to the Customer, the features and functionality included in access to the Platform, and the Fees for the foregoing.
xxiv. “Order Term” means the period of time to which the Customer will have access to the Services purchased under a specific Order as stated in the Company’s confirmation of that Order, including any applicable renewals.
xxv. “Party” individually means the Company or the Customer, and "Parties" means the Company and the Customer together.
xxvi. “Personal Data” means any information related to an identified or identifiable natural person where such data is Customer Data, and includes information defined as “personal information”, “personal data”, or a similar term under Privacy Laws.
xxvii. “Platform” means the Company’s booking engine software service that is to be used by the Customer and is hosted by the Company, and which allows Enterprise Customers to market their region to Business Customers and Guests and for Guests to book Customer Services from Business Customers. The term "Platform" includes the Documentation and any modifications, enhancements, new features, APIs, integrations, or related applications (including the App), including any of the foregoing that are further described in any applicable Order.
xxviii. “Platform Fee” means the fees the Company charges for access to the Platform as stated on the Company’s website (hyperlink) or as otherwise stated in the applicable Order.
xxix. “Privacy Laws” means, as applicable to the Customer’s use of the Services: the Personal Information Protection and Electronic Documents Act (S.C.2000, c.5) (Canada) or the legislation of a province if the legislation is declared to be substantially similar to the Personal Information Protection and Electronic Documents Act (Canada) and any successor legislation; United States federal, state and local laws regarding the protection of personal information, including the Interagency Guidelines Establishing Standards for Safeguarding Customer Information, Gramm-Leach-Bliley Act, and any successor legislation or guidelines; EU General Data Protection Regulation (GDPR): Regulation (EU) 2016/679; and applicable privacy and protection of personal information laws and regulations, in force at the time Services are performed, or that may be amended from time to time, in each of the countries and jurisdictions in which the Services are provided or to which they relate.
xxx. “Professional Services” means the Company’s professional services related to the Platform, such as set up, consulting, training, configuration, implementation, integration, and other similar professional services.
xxxi. “Prohibited Data” means financial account identifiers (e.g., credit card numbers or bank account numbers), government issued identifiers (e.g., social insurance numbers), health records or any information pertaining to an individual’s health, or other types of sensitive or special category data that is subject to specific or elevated data protection requirements under Applicable Laws, including Privacy Laws.
xxxii. “Services” means access to the Platform, the Professional Services, and any related or additional services connected with the foregoing.
xxxiii. “SOW” means a statement of work executed by the Parties for Professional Services.
xxxiv. “Taxes” include taxes, levies, duties or similar national, federal, state, provincial, or local governmental assessments of any nature, including value-added, goods and services, sales, use, and withholding taxes that are assessable by any jurisdiction under Applicable Laws.
xxxv. “Term” has the meaning given in the section below entitled “Term and Termination”.
b. Interpretation. Words importing the singular number only shall include the plural and vice versa and words importing the masculine gender shall include the feminine. The headings are intended solely for convenience of reference and will be given no effect in the interpretation or construction of this Agreement. Wherever the words “include”, “includes” or “including” are used, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes”, or “including” shall not be considered to set forth an exhaustive list.
2. Use of the Platform and our Services
a. Grant of Access and Use.
Subject to you meeting your obligations under this Agreement, complying with the Documentation, and the payment of Fees owed under the applicable Order, we grant you during the applicable Order Term a non-exclusive, non-transferable (except as permitted under the terms of this Agreement) right to access and use Platform. By accessing the Platform or using our Services, you represent and warrant to us that: (i) if you are an Enterprise Customer or Business Customer, (1) you are duly incorporated or formed, as applicable, under the laws of the jurisdiction of your incorporation or formation, as applicable, (2) you are qualified and licensed or registered to carry on business in every jurisdiction where such qualification and licensing or registration is required for the purposes of this Agreement, (3) you have the corporate power and authority to enter into this Agreement and to carry out your obligations under it, (4) you have all required consents, permissions, and authorizations necessary to use our Services with your Customer Services, and (5) you have taken all necessary corporate action to authorize the execution of this Agreement by your representative; and (ii) this Agreement will constitute your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
b. Update the Platform
i. We may make, for no additional fee, updates, and changes to the Platform (including maintenance releases, bug fixes, corrections, and minor modifications) that we make generally available to our other customers (“Updates”); provided that we will not make any Updates that materially decrease the functionality of your use of the Platform during an Order Term of this Agreement.
ii. We may periodically provide or launch new or significantly different add-ons, features, functionality, or enhancements (“Improvements”) to the Platform that are outside the scope of this Agreement. In our discretion, such Improvements will not be considered an Update and we may charge a Fee for your access to and use of them. You are under no obligation to use Improvements and access to them will be subject to an Order.
c. Beta Services. From time to time, we may make available Beta Services to you at no additional cost. If you choose to use Beta Services, you acknowledge and agree that those Beta Services are intended and made available for evaluation purposes only, are not for production use, are not supported, are provided on an “as is” basis and, not withstanding anything to the contrary in this Agreement and to the fullest extent allowed by Applicable Law, exclude any express or implied representations or warranties or any kind. Beta Services may be subject to additional terms. You acknowledge and agree that all restrictions, our reservation of rights, and your obligations concerning the Platform apply to your use of Beta Services. Your right to use Beta Services will expire on the date that we make a version of the Beta Services available as an Improvement. We may discontinue Beta Services in our sole discretion and we may, in our discretion, never make them generally available as an Improvement. We disclaim any liability for any harm or damage arising out of or in connection with Beta Services and our indemnities in this Agreement do not apply to your use of Beta Services.
d. Usage Limits. When using the Platform, you agree to abide by any usage limits we set for the Platform, including any quantities described in an Order or any restrictions in the Documentation. You agree that you will not circumvent or exceed those usage limits.
g. Acceptable Use. Except as otherwise permitted in this Agreement, you shall not, and shall not permit your Authorized Users or any third-party to, directly or indirectly:
i. copy or attempt to copy, alter, modify, adapt, duplicate, create derivative works from, frame, mirror, publish or republish, download, display, transmit, or distribute all or any portion of the Platform or the software or code contained within the Platform in any form or media or by any means, including by any automated or manual process;
ii. tamper with the security of the Platform, attempt to probe, scan, or test or circumvent the security of the Platform, breach the security or authentication measures of the Platform without proper authorization, violate the restrictions in any robot exclusion files on the Platform or circumvent other measures employed to prevent or limit access to the Platform, or willfully render any part of the Platform unusable;
iii. actually or attempt to reverse compile, disassemble, reverse engineer, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying structure, ideas, algorithms, or organization) of the Platform, or reduce to human-perceivable form all or any part of the software contained on the Platform;
iv. sublicense, license, sell, resell, rent, share, loan, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or make the Platform or Services available to or for the benefit of any third-party (except as expressly permitted herein) or otherwise use the Services other than in the way intended;
v. build a product or service using similar ideas, features, functions, or graphics of the Platform, or otherwise copy any ideas, features, functions or graphics of the Platform, or access or use the Platform to build or create a competitive service;
vi. permit any unauthorized access to, or use of, the Services;
vii. use the Platform to store or transmit any virus, worm, trap door, time bomb, Trojan horse or other harmful or malicious code, file, script, agent, or program designed to permit unauthorized access to, or to erase or otherwise harm software, hardware, systems, or data;
viii. distribute, facilitate, enable, or allow access or linking to the Platform in any manner deemed us (in our sole discretion) to be objectionable or harmful to our business, name, or reputation;
ix. remove any watermarks, labels or other legal or proprietary notices included in the Platform;
x. use the Platform in a manner that violates third party Intellectual Property Rights;
xi: use the Platform to send unsolicited Electronic Communications;
xii. post any Customer Data or use the Platform to communicate any content, message, or material that (1) is abusive, defamatory, libellous, harmful to minors or obscene; (2) infringes the Intellectual Property Rights of any third-party or is otherwise unlawful; or (3) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any Applicable Laws.
xiii. Customer Responsibilities. In addition to your other obligations in this Agreement, you agree to: (i) provide accurate Customer Data to us; (ii) provide us with commercially reasonable co-operation regarding this Agreement, including reasonable access to information as may be required by us from time to time to provide the Services; and (iii) comply with all Applicable Laws regarding your use of the Services.
3. Availability of Services
a. Availability Not Guaranteed. The Platform and Third-Party Services may be unavailable from time to time, may be offered on a limited basis, or may vary depending on your region. We strive to keep the Platform available for use; however, all online services suffer occasional disruptions and outages, and we are not liable for any disruption or loss you may suffer as a result. In the event of an outage, you may not be able to retrieve your Customer Data that you have stored on the Platform. We recommend that you regularly backup your Customer Data that you store on the Platform or that you have connected with Third-Party Services. We are not liable for any loss of any Customer Data resulting from any outage of the Platform.
b. Functionality of Platform. We agree that the Platform will operate in substantial conformity with the features and functionality set forth in the applicable Order. If the Platform experiences a Nonconformity, we agree to correct such failure in a prompt and timely manner, but in no event later than 45 days after notification from you of the Nonconformity. Our obligation to correct the Nonconformity is, in our discretion, to repair or replace the Platform or to perform or re-perform the applicable feature or function of the Platform, such that the corrected Platform complies with this subsection. If the failure is not so corrected, then you may: (i) extend the time for us to correct such failure (if commercially practical); (ii) receive an appropriate, agreed-upon reduction in, or refund of, the Fees; or (iii) terminate this Agreement. This subsection states our sole obligation and your sole and exclusive remedy for any Nonconformities in the Platform.
c. Standard Support Services. We may provide you with technical support regarding your use of the Platform. Details of our technical support offerings are provided here (hyperlink). We reserve the right to change our technical support services or cease to provide support at any time without notice to you. We may refuse support, or charge you for excessive requests, requests not covered by your Order, overly complex configurations, or requests outside of the understanding of our support staff.
a. Payment Terms. Your agreement to an Order constitutes a binding commitment to purchase the items described in the Order and payment terms shall be indicated in the applicable Order. Except as otherwise specified in this Agreement or an Order, (i) Fees are based on the Services purchased by you and not actual usage, (ii) subscription Services are non-cancelable and any Fees paid by you are non-refundable except as specifically stated in the Order, and (iii) quantities purchased under an Order cannot be decreased during a relevant Order Term without our prior written consent, but may be decreased in a subsequent renewal at the expiration of the then current Order Term.
b. Taxes. The Company and the Customer are each solely responsible for Taxes which each is liable to pay under Applicable Laws. The Fees and any other amounts paid or payable to the Company under this Agreement do not include and will not be offset by any Taxes paid or payable by the Customer in respect of this Agreement. The Customer is responsible for paying all Taxes associated with its purchase of Services under this Agreement. If the Company has an obligation under Applicable Laws or this Agreement to pay or collect Taxes for which the Customer is legally liable or responsible under this subsection, then the Company will invoice the Customer for such Taxes, and the Customer will pay that invoiced amount of Taxes to the Company unless the Customer provides the Company with a tax exemption certificate that is valid under Applicable Laws and is authorized by the appropriate taxing authority. Should the Customer remit withholding tax to any governmental authority in respect of Fees or other amounts paid or payable to the Company under this Agreement, then the Customer agrees to timely provide the Company with appropriate documentation evidencing such remittance. This subsection survives the termination of the Agreement for any reason.
a. Use of Customer Data. We and our Affiliates, agents, subprocessors, and subcontractors agree to only process Customer Data in accordance with the Agreement and Applicable Laws, as is necessary to provide the Services, and to comply with other documented reasonable instructions provided by you where such instructions are consistent with the terms of this Agreement. You grant us a non-exclusive, worldwide, royalty-free right to use, host, copy, store, transmit, modify, and display the Customer Data (i) as is necessary to provide the Services, (ii) to perform our obligations and exercise our rights under this Agreement, and (iii) for purposes of research and developing, creating, and improving the functionality of the Services. You acknowledge and agree that we may transmit data to subprocessors to facilitate the delivery of Services under this Agreement. We agree to inform those subprocessors of the terms of this Agreement and to make them subject to contractual terms and conditions for the protection of Customer Data similar to those that apply to us under this Agreement and Applicable Law. Should we determine that any Customer Data (i) is in breach of this Agreement, (ii) violates Applicable Law, including Privacy Laws, or (iii) the access to or use of the Customer Data in connection with this Agreement would exposure us to civil or criminal liability, then we have the right, but not the obligation, to remove (or request that you remove) such Customer Data from the Services. You have sole responsibility for the reliability, integrity, accuracy, and quality of the Customer Data.
b. Correction to Customer Data. In the event of any loss of integrity or the corruption to Customer Data during the transmission of data, your sole and exclusive remedy is for us to restore the Customer Data from the latest back-up of such Customer Data maintained by us, if any, in accordance with our then-current archiving procedures.
c. Use of Aggregate Data. We and our Affiliates, agents, subprocessors, subcontractors, and third-party service providers are expressly permitted to create and use Aggregate Data to (i) provide, improve, and enhance the Services and the Platform, (ii) for development, diagnostic, and corrective purposes, (iii) to develop and distribute benchmarking and other relevant metrics for our customers and third parties to better understand trends related to their industry, (iv) to create, develop, and distribute additional products and services, and (v) for any other lawful business purpose.
d. Prohibited Data. Unless otherwise contracted for in an Order, by written agreement between you and us, or as intended by the functionality of the Platform, you agree to not request or upload and to ensure that no Authorized Users upload into the Platform or Services, or otherwise submit or make accessible to us, any Prohibited Data. You agree to notify us immediately if you become aware that Prohibited Data has been uploaded to the Platform. We have the right, in our sole discretion, to delete any Prohibited Data from the Platform and although we are not required to do so, we will endeavor to provide you with at least 10 days’ notice prior to exercising this discretion so you can export such Prohibited Data from the Platform. We will not be responsible for any Prohibited Data we receive, and we disclaim any liability and Damages arising from Prohibited Data used on the Platform, including liability and Damages for any failure to protect the Prohibited Data.
6. Intellectual Data
a. Ownership of the Platform. Subject to the terms of this Agreement, you are permitted to access and use the Platform, but this Agreement is not otherwise an agreement for the sale or license of any software. No rights or licenses are granted except as expressly stated in this Agreement. As between you and us, we own and retain all right, title, and interest in and to: (i) the Platform and Services; (ii) any improvements, derivatives, and modifications to the Platform and Services; and (iii) all Intellectual Property Rights to the foregoing. All rights not expressly granted by us in this Agreement are reserved.
b. Ownership and Use of Feedback. It is our policy not to accept or consider content, information, ideas, suggestions, or other materials other than those we have specifically requested and to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing on our own. If, despite our policy, you choose to send us content, information, ideas, suggestions, or other materials, you agree that you give us a royalty-free, irrevocable, transferable right and license to use all reviews, comments, feedback, suggestions, ideas, and other submissions disclosed, submitted, or offered to us in connection with your use of the Service (collectively, "Submissions") in however manner we desire and for whatever purpose, including to copy, modify, delete, adapt, publish, translate, create derivative works from, sell, profit from, or distribute such Submissions or incorporate such Submissions into any form, medium, or technology (including the Services) throughout the world. We are under no obligation to compensate you in any way for Submissions, to maintain any Submissions in confidence, or to respond to any Submissions. You agree that any Submissions submitted by you to us will not violate the right of any third-party, including without limitation, copyright, trademark, privacy, or other personal or proprietary rights, and will not cause injury to any person or entity. You further agree that no Submissions submitted by you to us will be or contain libelous or otherwise unlawful, threatening, abusive, or obscene material, or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam".
c. Ownership of Aggregate Data. As between you and us, we own and retain all right, title, and interest in and to Aggregate Data, including all Intellectual Property Rights therein.
d. Ownership of Customer Data. As between you and us, you own all rights, title, and interest in and to Customer Data, including all Intellectual Property Rights therein. You may export your Customer Data from the Platform at any time. Once exported, the exported Customer Data is no longer covered by our security or privacy commitments under this Agreement.
e. Our Branding. Our trademarks (whether registered or unregistered), trade names, service marks, graphics, and logos (collectively, the "Marks") used in connection with the Services are our property. Other trademarks, trade names, service marks, graphics, and logos used in connection with the Service are the property of their respective owners (collectively "Third-Party Marks"). The Marks and Third-Party Marks may not be copied, imitated, or used, in whole or in part, without the prior written permission of us or the applicable owner. We reserve all Intellectual Property Rights in and to our Marks. Subject to the foregoing, we grant you a revocable, non-exclusive, and non-transferable license to use the Marks solely in connection with your use of the Services and for no other purpose.
f. License of Customer Graphics. You grant us and our Affiliates, a royalty-free, non-exclusive, worldwide, license during the Term to use and display your graphics, service marks, logos and trademarks approved by you on the Platform as required to provide the Services and for the purpose of performing our obligations under this Agreement.
g. Survival. Unless this Agreement otherwise expressly states that a provision in this section is to end upon the termination of expiry of this Agreement, the terms of this section survive the termination of the Agreement for any reason.
a. Customer Indemnity. You agree to defend, indemnify, and hold us, our Affiliates, and each of our respective officers, directors, employees, agents, and sub-contractors harmless from and against any third-party Claims and resulting Damages arising out of or related to (i) your use of the Services, including any claims that arise from the use of our Services by you to provide or receive Customer Services, (ii) Customer Data, Prohibited Data, and your of use of them with the Services, (iii) your use of any Third-Party Services or breach of any third-party terms and conditions applicable to the Third-Party Services, (iv) your violation of Applicable Laws, including Privacy Laws, in connection with your use of the Services, (v) your breach of any of your obligations or representations given in this Agreement, or (vi) arising from your gross negligence, fraud, or wilful misconduct in connection with the Services. Without limiting the generality of the foregoing, you acknowledge and agree that a Claim made by an Authorized User is a third-party Claim.
b. Company Indemnity. Subject to your indemnity obligations stated in this Agreement, we agree to defend, indemnify, and hold you and your Affiliates and your respective officers, directors, employees, agents, and sub-contractors harmless from and against any and all third-party Claims and resulting Damages where the Claim (i) subject to subsection (d) below, alleges that the Platform infringes or misappropriates third-party Intellectual Property Rights; or (ii) arising from our gross negligence, fraud, or wilful misconduct in connection with the Services (each, a “Customer Claim”).
c. Indemnification Procedure. The Party seeking indemnification under this section (the “Indemnitee”) will provide the other Party (the “Indemnitor”) with prompt written notice of any third-party Claim for which indemnity is sought. If the Indemnitor is so notified, the Indemnitor will promptly hire experienced and competent counsel, and will have sole control of the defense and all negotiations for the compromise or settlement of such Claim, and will pay any Damages in respect of such Claim and reimburse the Indemnitee for its reasonable costs and expenses incurred in cooperation with and providing assistance to the Indemnitor; provided, however, that the Indemnitor may not settle any such Claim without the Indemnitee’s consent if the proposed settlement would be in the Indemnitee’s name or impose pecuniary or other liability or an admission of fault or guilt on the Indemnitee or would require the Indemnitee to be bound by an injunction of any kind.
d. Company Rights. In the defense or settlement of any Customer Claim that alleges that the Platform infringes or misappropriates third-party Intellectual Property Rights, we may procure the right for you to continue using the Platform, replace or modify the Platform (so long as such modified Platform is substantially equivalent in functionality and performance) so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 business days’ notice to you and refund you (without an additional liability or obligation to the Customer) a prorated amount equal to the prepaid unused Platform Fees for the unexpired portion of the Term. This section states your sole and exclusive rights and remedies, and our (including our Affiliates and their officers’, directors’ employees’, agents’, and sub-contractors’) entire obligations and liability for infringement of any Intellectual Property Right
e. Exclusions. In no event will we or our Affiliates, officers, directors, employees, agents, or sub-contractors be liable to you under this section to the extent that the alleged infringement is based on:
i. a modification of the Platform by you or anyone on your behalf (including a modification made by us at your direction) to the extent such claim would not have occurred absent such modification;
ii. use of the Platform in a manner contrary to the instructions given by us or in contravention of the terms of this Agreement;
iii: use of the Platform in combination with other products, software, or data not supplied by us; or
iv. use of the Platform after notice of the alleged or actual infringement from us or any appropriate authority or third party.
f. Reduction of Indemnification Obligations. Indemnification by either Party under this Agreement may be reduced to the extent of loss actually proven as directly attributable to the breach of the Agreement, gross negligence, or willful misconduct of the other Party.
g. Survival. Survival. This section survives the termination of the Agreement for any reason.
8. LIMITATION OF LIABILITY
a. IN NO EVENT WILL WE BE LIABLE FOR: (I) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, OR (II) ANY LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE, OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES, COSTS, CLAIMS, OR OTHER LIABILITIES RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE, OR TORT, IN EXCESS OF THE AGGREGATE OF THE FEES PAID BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CAUSE OF ACTION OR $100,000, WHICHEVER IS LESS.
b. WE MAKE NO REPRESENTATION AND WILL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER IN RELATION TO THE CONTENT OR USE OF, OR CORRESPONDENCE, AGREEMENTS, OR TRANSACTIONS WITH, ANY THIRD-PARTY SERVICES. YOU MUST COMPLY WITH ALL AGREEMENTS AND OTHER LEGAL REQUIREMENTS THAT APPLY TO THIRD-PARTY SERVICES.
c. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE PLATFORM OR CUSTOMER DATA OR INFORMATION CONTAINED THEREIN, EXCEPT TO THE EXTENT THAT THE COMPANY’S BREACH OF ITS SECURITY STANDARDS EXPRESSLY STATED IN THIS AGREEMENT RESULTS IN THE UNAUTHORIZED ACCESS.
d. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM USE OF CUSTOMER DATA BY THE CUSTOMER OR ITS AUTHORIZED USERS.
e. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED BY THE COMPANY UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF THE COMPANY WERE TO ASSUME ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
f. This section will apply to the maximum extent permitted under Applicable Laws and survives termination of the Agreement for any reason. Without prejudice to the foregoing, nothing in this Agreement will operate to exclude or restrict any liability of a Party for any matter for which it is not permitted by Applicable Law to exclude or limit, or to attempt to exclude or limit, its liability.
EXCEPT FOR THE WARRANTIES STATED EXPRESSLY IN THIS AGREEMENT OR AN APPLICABLE SOW:
a. THE PLATFORM, SERVICES, ANY CONTENT MADE AVAILABLE BY THE COMPANY ON THE PLATFORM, BETA SERVICES, AND ALL OTHER SERVICES ARE PROVIDED “AS IS”; AND
b. THE COMPANY SPECIFICALLY EXCLUDES ALL OTHER WARRANTIES, CONDITIONS AND OTHER TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE SOLELY FOR THE BENEFIT OF THE CUSTOMER AND NO OTHER THIRD-PARTY. UNLESS EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT OR BY WRITTEN AGREEMENT BETWEEN THE PARTIES, THE COMPANY DOES NOT WARRANT THAT (A) THE OPERATION OF THE PLATFORM WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE, (B) ANY ERRORS IN THE PLATFORM CAN OR WILL BE CORRECTED, OR (C) THE PLATFORM OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF THE USE THEREOF, WILL MEET THE CUSTOMER’S REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY, OR COMPLETENESS. THE COMPANY WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURE, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM THE CUSTOMER'S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR ANY OTHER SYSTEMS.
THIS SECTION SURVIVES THE TERMINATION OF THE AGREEMENT FOR ANY REASON.
10. Terms and Termination
a. Term of Agreement. This Agreement starts as of the effective date of the Order applicable to theService and will continue until all applicable Orders or SOWs have expired or terminated according to their terms, or until this Agreement has been terminated according to its terms (the “Term”).
b. Term of Professional Services. The term of Professional Services is stated in the applicable SOW for those Professional Services.
c. Suspension. In the event of any breach or threatened breach of this Agreement by you or any Authorized User, which includes any failure to pay Fees when due, without limiting any of our other rights and remedies, we may suspend your access to the Services. You will continue to be charged Fees during any period of suspension for a breach of the Agreement.
d. Termination on Certain Events. A Party may immediately terminate this Agreement or any applicable Order or SOW on the occurrence of any of the following:
i. If the other Party materially breaches the Agreement and such breach is incapable of being cured, upon written notice to the breaching Party.
ii. If the other Party materially breaches the Agreement and such breach is capable of being cured, subject to any provisions of this Agreement giving an immediate or shorter right of termination, upon written notice to the breaching Party if the breaching Party does not cure the breach within 30 days after its receipt of written notice of the breach.
iii. Immediately by written notice upon the other Party commencing or becoming subject to reorganization, winding up, insolvency, or bankruptcy proceedings under any national, federal, state or provincial statute, including the Companies’ Creditors’ Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), the Canada Business Corporations Act (“CBCA”) or any of the provincial equivalents to the CBCA, or the Winding-Up and Restructuring Act (Canada) or ceases to operate in the ordinary course of its business. If this Agreement is terminated by the Customer in accordance with this subsection, the Company will refund the Customer a pro rata portion of any prepaid unused Fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by the Company in accordance with this subsection, the Customer will pay any unpaid Fees covering the remainder of the term of all Orders. In no event will termination relieve the Customer of its obligation to pay any Fees payable to the Company for the period prior to the effective date of termination.
e. Effect of Termination (Agreement). Immediately in the event of any termination of the Agreement or expiration of the Term:
i. Subject to any rights provided for in an Order or SOW that survive termination, all Orders or SOWs then in-effect will immediately terminate, and we will cease all Services on the effective date of termination or expiration of the Term, and any right you have to access the Platform under this Agreement will immediately terminate;
ii. Each Party will promptly return and make no further use of any materials and other items (and all copies of them) belonging to the other Party. Provided, however, that the foregoing does not limit our rights of use regarding Aggregate Data or to copies of Customer Data made as a matter of routine information technology backup that we must or choose to store in accordance with our record retention policy or as required by Applicable Law (including for tax and audit purposes), with such Customer Data being subject to the confidentiality and security provisions in this Agreement or under Applicable Law for so long as it is retained.
iii. We may erase or otherwise destroy the Customer Data in part or in whole unless we receive, no later than 10 days after the effective date of termination or expiration of the Term, written notice from you requesting the most recent extraction of the Customer Data. Within 30 days of receiving such notice, we will provide you with a copy of your Customer Data in a format reasonably requested by you and commercially practical for us to provide.
f. Effect of Termination (Order or SOW). In the event of any termination or expiration of an Order or SOW, we will cease providing the applicable terminated or expired Services subject to the Order or SOW upon the effective date of termination or expiration of that Order or SOW.
g. Fees. Termination will not relieve you of your obligation to pay all Fees and undisputed charges accrued and payable before the effective date of termination.
h. Survival. All representations and warranties, disclaimers or limitations of liability, exclusions of warranties, the sections entitled “Definitions and Interpretation” and “Miscellaneous”, and any sections of this Agreement that by their nature should survive or are expressly stated to survive, shall survive termination or expiration of this Agreement for any reason.
a. Marketing. During the Term, you agree that we may use your name and logo as a customer who uses our Services. Each of us agrees that during the Term we will collaborate on press releases and other joint communications about your use of the Services. During the Term, we may feature your use of the Services as a marketing case study, provided that the confidentiality obligations in this Agreement are upheld in doing so.
b. Electronic Communications. The Platform allows you to send and receive Electronic Communications. You will only use the Electronic Communications features in the Platform in compliance with this Agreement and Applicable Laws. You also consent to the receipt of Electronic Communications from us in connection with the Services.
c. Export Controls. You will not use or access our Services if you are located in any jurisdiction in which the provision of our Services is prohibited under Canadian, United States, or other laws (a “Prohibited Jurisdiction”) and you will not provide access to our Services to any government, entity, or individual located in any Prohibited Jurisdiction. You confirm that: (i) you are not named on any Canadian or United States government list of persons or entities prohibited from transaction with any Canadian or United States person; (ii) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (iii) you will not access or use our Services in violation of any Canadian, United States, or other export embargoes, prohibitions or restrictions; and (iv) you will comply with all laws regarding the transmission of data exported from the country in which you are located to Canada and the United States.
d. Assignment. This Agreement shall be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns. We may assign this Agreement without requiring your consent. You may not assign this Agreement or any of its rights or obligations hereunder, in whole or in part, without our prior written consent.
e. Entire Agreement. This Agreement, including all other agreements referenced or incorporated herein, is the entire agreement and understanding between the Parties regarding the Services and supersedes all prior or contemporaneous communications (oral or written), agreements, and understandings of any kind of the same subject. Each Party confirms that it has not relied upon any statement, representation, or understanding that is not an express term of this Agreement.
f. Modifications. We may amend this Agreement at any time by posting revised terms to the Platform or the applicable area of our website and the updated or revised terms will be effective as of the date of posting. Your continued use of the Services following the time at which we post revised terms is your agreement to the terms as modified. If you do not agree to the revised Agreement, do not continue to use the Services. Where an amendment or update to the Agreement or a hyperlinked document adds significant additional obligations on you, materially reduces your rights, or materially reduces our obligations, you have the right, exercisable no later than 30 days after such change has been implemented, as your sole remedy, to terminate this Agreement or any Order by notice to us and we will refund any prepaid unused Fees regarding the then-remaining term of any Order or applicable SOW. If there is any conflict or inconsistency between the terms, obligations, or conditions in the body of this Agreement and any Order, SOW, or other document referenced or incorporated herein, the terms, obligations, and conditions contained in the body of this Agreement control unless otherwise expressly stated in the Order, SOW, or other document referenced or incorporated herein that it supersedes specified provisions in this Agreement.
g. Force Majeure. Except for payment obligations, neither Party will be liable to the other Party for any delay or failure in performance arising out of a cause beyond its control and without its fault or negligence. Such causes may include fires, floods, earthquakes, strikes, unavailability of necessary utilities or internet service providers, blackouts, pandemics, acts of God, acts of declared or undeclared war, acts of legislative bodies or regulatory agencies, or national disasters.
h. Governing Law and Forum. Any claim, controversy, or dispute arising under or related to this Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to the conflict of law principles thereof. The Parties will initiate any lawsuits in connection with this Agreement in Ontario, Canada, and irrevocably attorn to the exclusive jurisdiction and venue of the courts sitting therein. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
i. Legal Fees. If any legal action is necessary to enforce the terms of this Agreement, we are entitled to recover our reasonable legal fees and costs from you on a solicitor-client basis.
j. Independent Contractor. The Parties are independent contractors. Nothing in this Agreement will be construed to create a joint venture, partnership, or an agency relationship between the Parties. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other Party in any way.
k. Notices. All notices and communications given under this Agreement will be in writing and will be given by: (i) certified mail return receipt requested or by overnight courier, to the address stated in the applicable Order; (ii) delivered electronically by email to the email address stated in the applicable Order or as updated by a Party from time to time in accordance with this section.
l. Severability and Waiver. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement will not be affected thereby and will be binding upon the Parties and will be enforceable, as though such invalid or unenforceable provision (or portion thereof) were not contained in this Agreement. The failure of either Party to insist upon strict performance of any provision in this Agreement will in no way constitute a waiver of its rights, at law or in equity, or a waiver of any other provisions of this Agreement or subsequent default by the other Party in the performance of or compliance with any of the terms and conditions in this Agreement.
m. English Language. It is the express intention of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volunté expresse des parties que cette convention et tousles documents s’y rattachant, y conpris les aviset les autre communications, soient rédigés et signés en anglais seulement.