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Thank you for using our “Platform Services” (as defined below).  The Platform Services are provided by Media Sonar Technologies Inc. (“Us” or “We” or “Ours”) to the customer (“You” or “Your” or “Yours” or “Customer”) set out in an Order Form (as defined below) or as part of a Free Trial, each of which incorporates these Master Terms of Service by reference.

Our Platform Services is a search engine and aggregator of Internet Data.  The Internet Data displayed by the Platform Services is not owned, controlled, or endorsed by Us.  We do not pre-screen Content and expressly require in our Terms of Service that our Clients not surveil users or their Content.

By using our Platform Services, you are agreeing to this Master Terms of Service (the “Agreement“) as written.

If You are entering in this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions. If You do not have the authority, or if You do not agree with these terms and conditions, You must not accept this Agreement or sign the Order Form, and You may not use the Platform Services.

You may not access the Platform Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Platform Services for purposes of monitoring their availability, performance, functionality, or for any other benchmarking or competitive purpose. All proprietary rights and intellectual property remain the sole property of Media Sonar Technologies Inc.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1.0  Definitions

In addition to the terms defined in the body of the Agreement, the following terms have the following meanings:

Activation Date” means the day following the issuance of user login names and a Password to You to access, by means of Your Accounts, the Platform Services.

Aggregate Basis” means that We combine Customer Data and/or parts of information collected or processed from You, Named Users and other customers of Ours in a manner that does not contain or disclose any personal or identifiable information.  For greater certainty, Aggregate Data shall not contain, disclose or otherwise identify Your name, any Named User(s) or any person who uploads, generates or transmits Customer Data.

Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), that is designated in writing as confidential as well as Customer Data, any customizations made to the Platform Services by or for You and the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder).

Content” means all information, links, emails, postings, code, data, text, software, music, sound, images, graphics, video, chat, messages, files, works of authorship, applications, or other materials submitted, displayed, published and all intellectual property rights related thereto.

Customer Data” means any data, information (including, without limitation, Personal Data) or other materials of any nature recorded in any form whatsoever disclosed or provided to Us by the Customer in the course of using the Platform Services or third parties directed by the Customer and all information generated by the Customer’s use of Platform Services.

Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or in part electronically.

Named Users” means any employees of the Customer or individuals authorized by the Customer to use the Platform Services on behalf of the Customer.

Personal Data” any data or information about an identified individual or information about an individual whose identity may be inferred or determined from the information.

Platform Services” means the software and data applications identified in the Order Forms. It is a search engine and aggregator of Internet Data. The material being displayed and the Internet Data by the Platform Services is not owned, controlled, or endorsed by Us. They may include enhanced capabilities for customers to exercise their lawful authority to collect information from the Internet, report/export functionalities and access to archived social media data, as further described in the applicable Order Forms.

Order Forms” means the sales documents representing the initial purchase of the Platform Services as well as any subsequent purchases agreed to between the parties in writing from time to time, that are executed by the parties and that specify, among other things, the number of subscriptions for the Platform Services ordered, the Term and the Fees (as those terms are hereinafter defined).

Internet Data” means the Content openly posted, conversations and data gathered from the Internet by the Platform Services and any deliverables containing such information provided by the Platform Services.

Support” means the support services described in any applicable Order Form but does not include any other professional services.

2.0  Free Trial

If You register on Our website or through Our sales staff for a free trial, We will make the Platform Services available to You on a trial basis free of charge until the earlier of

  1. the end of the free trial period for which You registered to use the Platform  Services, or
  2. the start date of any Platform Service subscriptions ordered by You, or
  3. termination by Us in our sole discretion. Any additional trial terms and conditions are incorporated into this Agreement by reference and are legally binding.

Any Customer data You enter into the Platform Services, and any customizations made to the Platform Services by or for You, during Your free trial will be permanently lost unless You purchase a subscription to the Platform Services or export such data before the end of the trial period. Notwithstanding Section 13 or 14, during the free trial the Platform Services are provided “as-is” without any warranty or indemnity.

3.0  Subscriptions

Subject to the terms and conditions of this Agreement, We agree to provide You, on a subscription fee basis, the Platform Services identified in the Order Forms.  The Platform Services shall be made available to You on-line at www.mediasonar.com (or such other URL as We may designate from time to time) from a third party hosted facility and/or other systems used by Us to host the Platform Services (collectively, the “Systems”). Following the Activation Date, You may place orders for additional subscriptions to use the Platform Services, by the parties executing an Order Form.

4.0  Platform Services

Subject to the terms and conditions of this Agreement, We grant to You and Your Named Users a non-transferable, non-exclusive, non-sublicensable right (the “Subscription Right”) to access and use the Platform Services via the Internet during the Term and any Renewal Term. You understand and agree that the operation and availability of Platform Services, including, but not limited to, computer networks, external authentication software, mobile networks, and the Internet, whether or not supplied by Us, can be unpredictable and may from time to time interfere with or prevent access to the Platform Services.

We shall:

  1. provide Our basic support for the Platform Services to You; and
  2. use commercially reasonable efforts to make the Platform Services available 24 hours a day, 7 days a week, except for:
    1. planned downtime – of which We shall give at least 8 hours notice or
    2. any unavailability caused by circumstances beyond Our control.

You agree that the subscription for the Platform Services is neither contingent upon the delivery of any future functionality or features nor upon any oral or written public comments made by Us with respect to future functionality or features.  We reserve the right to limit specific usage when that usage negatively impacts the performance of the system.

5.0 Privacy Protection

You warrant to respect all applicable privacy laws. Specifically, You shall not, and shall not permit or allow Named Users, directly or indirectly, to collect Personal Data where collection of such Personal Data is subject to consent.

You shall not knowingly:

  1. investigate, track or surveil users or their Content, or obtain information on users or their Content, in a manner that would be inconsistent with users’ reasonable expectations of privacy as defined by law; or
  2. use Content in a way that you reasonably believe will violate privacy laws.

6.0  Internet Content

Notwithstanding anything else in this Agreement, Your use of any Internet Data is at Your risk.  No representation, rights or licenses to the Internet Data are granted in this Agreement and We reserve the right to remove any of the Internet Data gathered through the Platform Services. You acknowledge and agree that You may be required to obtain additional rights or licenses from the owner of any Internet Data in accordance with applicable law.

The Platform Services are designed to store links to locations where Internet Data is hosted on third-party websites that We do not own or control. We do not guarantee that any specific Internet Data will remain available or accessible. We reserve the right to immediately suspend or terminate the affected Platform Services and/or to remove the Internet Data from the Platform Services, if the Internet Data is used in contravention with this agreement, such as a means for surveillance purposes, or if required by the third-party platform from which the Internet Data was obtained or if we reasonably believe that the Platform Services or the Internet Data is or is likely to become noncompliant with any applicable law, regulation or policy, or is likely to become the subject of a lawsuit or material dispute.

However, our action or inaction shall not be deemed review or approval of such use of such Internet Data. You acknowledge that, depending upon Your intended use, including copying and reproduction, of the Internet Data, you may be required to obtain permissions from the author or owner of the Internet Data, abide by copyright law or other applicable law and abide by terms of service for the sources from which the Internet Data was obtained. We do not license the Internet Data and are not responsible for your use of the Internet Data.

7.0  Accounts

Each Named User will be entitled to access the Platform Services by means of a user account (“Account”) using a unique username and password.

You are responsible for ensuring:

  1. each person accessing the Platform Services has their own Account;
  2. only Named Users access and use any password protected areas of the Platform Services;
  3. the confidentiality of and use of the username and password for each Account;
  4. Named Users do not transfer or permit access to any Account to any third party without Our prior written approval;
  5. the truth, accuracy and correctness of Your and Named User information supplied to Us; and
  6. each person accessing the Platform Services complies with the terms of this agreement.

If You or any Named User provides any information that is untrue or inaccurate, or if We have reasonable grounds to believe that such information is untrue or inaccurate We may suspend or terminate access to the Platform Services and refuse any and all current or future use of the Platform Services following notice to You of the incorrect information and a failure by You to correct said information within three (3) days.

You shall be responsible and liable for all activity that occurs under all Accounts, whether authorized by You or Named Users (as the case may be) or not.  You acknowledge and agree that in no event shall We be liable, directly or indirectly, to You or Named Users for any loss or damage as a result of an activity under any Accounts.

8.0  Your Conduct and Use Guidelines

Your Conduct and Use Guidelines. Except as set out in the Order Form, the Subscription Rights are exclusively for Your internal use. You shall not, and shall not permit or allow Named Users, directly or indirectly, to do any of the following acts (each an “Illegal Act” and collectively, the “Illegal Acts”):

  1. reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Platform Services (or any part thereof);
  2. modify, translate, or create derivative works based on the Platform Services;
  3. rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit Platform Services or make the Platform Services available to a third party other than as contemplated in this Agreement;
  4. use the Platform Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) publish or disclose to third parties any evaluation of the Platform Services without Our prior written consent;
  5. create any link to the Platform Services or frame or mirror any content contained or accessible from, the Platform Services;
  6. use Internet Data for surveillance or monitoring purposes, or
  7. violate any local, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with Named Users’ use of the Platform Services, which may include without restriction, the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada) and similar provincial legislation in Canada enacted from time to time, the EU Data Protection Directive and other laws applicable to You related to privacy, publicity, data protection, electronic communications and anti-spamming laws (and, without limiting the generality of the foregoing, You are solely and exclusively responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Data that is stored on the System, disclosed to or used by You, Named Users or other authorized service providers in connection with the Platform Services).

9.0  Ownership of Customer Data and Confidentiality

9.1 Ownership of Customer Data

You retain all right, title and interest in all Customer Data, subject to the rights granted herein to Us. You will identify an individual, employed or otherwise authorized by You, to respond to enquiries by Us concerning any Customer Data provided to Us and to promptly address all enquiries concerning such information.

9.2 Confidential Information

The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). We will restrict access to Your Confidential Information to only those of Our employees, consultants and/or subcontractors necessary to successfully provide the Platform Services and Support.

Confidential Information shall not include information which:

  1. is known publicly;
  2. is generally known in the industry before disclosure;
  3. has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or
  4. has been otherwise lawfully known or received by the Receiving Party.

In receiving Customer Data from You, We agree that:

  1. all such Customer Data shall be used only for the purposes that You and Us have agreed upon in writing; and
  2. We, as requested or directed by You, shall either return to You or destroy such Customer Data provided by You to Us. This Section 9.2 will not be construed to prohibit the disclosure of Confidential Information if such disclosure is required by law or order of the court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.

10.0  Fees and Taxes

10.1  Fees

You shall pay to Us all of the fees (collectively the “Fees”) specified in all executed Order Forms.  Except as otherwise provided in the Order Forms, all Fees are quoted in United States currency. Except as otherwise provided in this Agreement, Fees are non-refundable.

10.2  Invoicing, Payment and Overdue Payments

Fees for the Platform Services and Support will be invoiced in advance in accordance with the terms set forth in the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due within 30 days from the invoice date. Any payment not received from You by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Customer shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments.

10.3  Suspension of Service

If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), We reserve the right to treat Your Account as either a Suspended Account or Cancelled Account without liability to Us, until such account is paid in full. “Suspended Account” shall mean that all login attempts to the Platform Services will be blocked and all Support will cease until You make the full payment due and owing, including any interest and other charges referred to in Section 9.2 and all other Fees accruing during the suspension period. “Cancelled Account” shall mean all data within Your Account directories will be permanently erased and Your Account, Subscription Right and Support will be terminated.  A Suspended Account or Cancelled Account does not remove Your obligation to pay those amounts outstanding to the date of such suspension or cancellation or thereafter for the remainder of the Term or Renewal Term, as the case may be.

10.4 Taxes

You shall be responsible for all sales, use, value added, or other taxes or duties, as applicable, payable with respect to the Platform Services and the Support, or otherwise arising out of or in connection with this Agreement and any Order Form, other than Our income taxes.  If We pay such taxes on Your behalf, You agree to reimburse Us for such payment immediately upon demand.  If any tax in the nature of withholding tax is payable on any sums payable to Us under this Agreement, You shall pay to Us such amount as is necessary to ensure that the net amount received by Us after such withholding shall be equal to the amount originally due, unless You provide Us with a valid exemption certificate authorized by the appropriate taxing authority.

10.5  Changes in Fees

We may, in our sole discretion, change prices, to be effective

  1. upon the next following Renewal Term provided We give not less than 30 days written notice to You of such changes prior to the commencement of such Renewal Term; and
  2. immediately, in the event of a change to Our cost of delivery of the Platform Services or Support as a result of
    1. a change in any applicable law, regulation, or similar governmental action, or
    2. a ruling by a court of competent jurisdiction.

11.0  Intellectual Property Rights

11.1  Ownership

All Content, ideas, know-how, methodologies and intellectual property rights (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights) related to, underlying or arising out of any Platform Services (including, without limitation, all modifications, changes, enhancements, or additions thereto), Our consulting, services or other facilitation, and other components forming part of the Platform Services or any professional services (“Media Sonar Property”) are proprietary to Us and/or Our licensors and are protected by domestic and international laws and treaties, and shall remain Our sole property or Our licensors.

You agree not to, and not to cause or permit others to:

  1. remove any proprietary notices, markings and legends appearing on or contained in Media Sonar Property, Platform Services and/or professional services, or any materials delivered by Us; or
  2. change any security or right management technology used in connection with any Media Sonar Property.

11.2  Rights Reserved By Us

You acknowledge that the Media Sonar Property and any related structure, organization and source code are proprietary to Us and/or its licensors and that We and/or Our licensors retains exclusive ownership of Media Sonar Property and all intellectual property rights therein. Customer agrees that Customer shall take commercially reasonable measures to protect Our proprietary and intellectual property rights in Media Sonar Property.  Except as We may otherwise expressly agree in writing, any discoveries, enhancements, improvements, customizations, translations or other modifications made to, or derived from, Media Sonar Property, and all related intellectual property rights therein, shall be owned exclusively by Us. Except as provided herein, You are not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights, franchises or licenses with respect to any Media Sonar Property.

11.3  Ownership of Deliverables

Unless otherwise agreed to in writing by authorized representatives of Us, all original materials produced by Us pursuant to an Order Form or statement of work shall belong exclusively to Us. By execution of this Agreement, Customer hereby irrevocably assigns any and all intellectual property rights in such materials to Us, and waive all moral rights in copyright, including all rights of every other kind in the materials for the entire duration of the copyright.  No rights are reserved to Customer.

11.4  Submissions

Notwithstanding any term of this Agreement, any suggestions, enhancement requests, recommendations or other feedback provided by You to Us relating to the Platform Services (collectively “Submissions”) shall become Our sole property.  We shall own all exclusive rights, including, but not limited to, all intellectual property rights, in and to all Submissions. We shall be entitled to the unrestricted use and dissemination of Submissions for any purpose, commercial or otherwise, without acknowledgement or compensation to You.  In the event that any intellectual property rights in and to any Submissions vest, or has vested, in You, You hereby assign to Us all of Customer’s right, title and interest in all Submissions and You hereby waive in favour of Us any of its moral rights therein.

12.0  Term and Termination

12.1  Term and Renewal Term

The Subscription Rights and Support shall commence on the Activation Date and shall continue for the period specified in the Order Form (the “Term“) unless earlier terminated in accordance with the provisions of this Agreement.  In the event of termination or expiration of this Agreement and the parties nevertheless continue with the services covered hereunder, this Agreement shall remain in effect on a month-to-month basis with either party having the right to terminate upon thirty (30) days written notice.

12.2  Suspension of Service

We may, at our sole option, and in addition to any other right herein, suspend Support and Your access to the Platform Services immediately in the event of an Illegal Act.

12.3  Termination

You shall have the right to terminate this Agreement upon ten (10) days advance written notice to Us. This Agreement may be terminated by either party upon the occurrence of any of the following events, which shall be deemed to be a breach of the terms of this Agreement:

  1. if either party fails to perform any of its obligations, or there is a material breach of any of the provisions of this Agreement (which, for the avoidance of doubt, shall include commission if an Illegal Act); provided that the party terminating this Agreement shall first have given prior written notice to the other of its intent to terminate, together with details of the default causing the termination, and the party receiving such notice shall have been given 5 days to cure any such default; or
  2. if either party
    1. ceases or threatens to cease to carry on its business, commits an act of bankruptcy, makes an assignment or bulk sale of its assets, or proposes a compromise or arrangement to its creditors, or
    2. is subject to any proceeding that is taken to
      1. compromise or make an arrangement with that party’s creditors,
      2. obtain an order to assign that party into bankruptcy or winding-up that party, or
      3. obtain an order to appoint a receiver over any part of that party’s assets, and in each case, such proceeding are not dismissed within 60 days of such proceeding being initiated.

12.4  Events on Termination.

Upon termination of this Agreement:

  1. each of the parties shall deliver or destroy (securely and permanently erase/purge from its computers, systems, processors, and storage media) all Confidential Information of the other party including, without limitation confidential information and Customer Data, which is in its possession, care or control; provided that, for greater certainty, We shall be under no obligation to destroy any Aggregate Data;
  2. if You terminate this Agreement in accordance with Section 12.3(a), You shall only pay those Fees that have accrued up to the date of its notice of termination and any prepaid Fees shall be forthwith paid by Us to You;
  3. each of the parties shall release the other from all obligations under this Agreement, save and except for obligations accrued and owing up to the effective date of termination and those surviving obligations set forth in Section 12.4(d) hereof; and
  4. the provisions in Sections 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of this Agreement shall continue in force following termination of this Agreement.

13.0  Limited Warranties and Disclaimers

13.1 Functionality Warranty

We warrant that the Platform Services will operate in substantial conformity with the applicable Platform Services documentation provided by Us, and that We shall perform all services in a timely, professional, workmanlike manner. For any breach of this warranty, Your sole and exclusive remedy and Our sole and exclusive liability, shall be for Us to correct any reported failure in the Platform Services causing a breach of this warranty, or, if We are unable to provide such correction, You shall be entitled to recover that prepaid portion of the Fees in respect of the non-conforming Platform Services.

13.2  Exclusions

Except as expressly stated in this Section 13, there are no warranties or conditions (whether implied or arising by statute or otherwise in law or from a course of dealing or usage of trade) for the Platform Services or Support. WE DISCLAIM ALL STATUTORY OR IMPLIED WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE.  We do not warrant that the functions contained in the Platform Services will meet Your requirements or that the operation of the Platform Services will be uninterrupted or error-free.

13.3  Limitation of Liability

  1. Neither party, its suppliers, affiliates, directors, officers, employees or agents shall be liable for any loss, injury, cause of action (whether in contract, tort (including negligence) or otherwise), liability or damage of any kind for any cause related to or arising out of this agreement, whether in contract, negligence or tort, in excess of the total fees and charges paid by You for the Platform Services during the twelve (12) month period immediately prior to the date the cause of action arose.
  2. In no event shall either party or its suppliers, affiliates, directors, officers, employees or agents be liable for any special, incidental, consequential, punitive or exemplary damages of any kind whatsoever, whether or not foreseeable (including, without limitation, legal fees) in any way due to, resulting from, or arising in connection with this Agreement, regardless of either party’s negligence or for any cause of action whatsoever and regardless of the form of the action including, without limiting the generality of the foregoing, loss of business, lost profits or revenue, failure to realize expected savings, lost data or any failure of security resulting in any way from You or Named User’s use of the platform services arising out of, or resulting from,
    1. the use of or inability to use the Platform Services or Systems or
    2. the provision of or failure to provide Support, or
    3. messages received or transactions entered into through or by reason of the platform services,  even if We have been advised of the possibility of such damages. Because some States and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this Section 11 may not apply to You.
  3. The Limitation of Liability provisions (Subsections 13.3 (a) and (b)) shall not apply to any indemnification given by one party to the other party pursuant to Section 12 or an Illegal Act.
  4. No action against either party or any of its directors, officers, employees or agents, regardless of form (including negligence), arising out of or in any way related to this Agreement may be brought by the other party more than one year after the cause of action has arisen.
  5. The essential purpose of this Section 13 is to limit the potential liability of the parties arising under this Agreement. The parties acknowledge that the limitations set forth in this Section 13 are intricate to the amount of consideration levied in connection with the license of the Platform Services and Support and that, were We to assume any further liability, such consideration would out of necessity, been set much higher.

14.0  Mutual Indemnification

14.1  Your Indemnification

You agree to indemnify and hold Us harmless and our officers, directors, shareholders, employees and agents from and against all third party Claims (as hereafter defined) arising from

  1. any Illegal Acts committed by You, or
  2. that the Customer Data infringes, misappropriates or violates any copyrights, trademarks, trade secrets or other proprietary rights of, or has otherwise caused harm to, a third party. “Claim” shall mean all losses, liabilities, damages, claims, taxes, and all related costs and expenses incurred by a party hereto only as the direct result of third party claims against such party, including, without limitation, reasonable attorney’s fees and costs of investigation, litigation, settlement, judgment, interest and penalties.

14.2  Our Indemnification

We shall indemnify and hold You and Your officers, directors, shareholders, employees and agents harmless (including the Named Users) arising from and against all third party Claims or allegations

  1. for infringement, misappropriation or violation of copyrights, trademarks or trade secrets of a third party within the United States or Canada in connection with Your use of the Platform Services or Support in accordance with this Agreement, or
  2. arising from any Illegal Acts committed by Us.

Notwithstanding the foregoing (but subject to Section 13.1), if We reasonably believe that the Named Users’ use of the Platform Services and/or Support is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s copyrights, trademarks or trade secrets, then We may, at Our option and expense:

  1. procure for You the right to continue using the such Platform Services or Support, as the case may be, or any portion thereof;
  2. replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action described in this section; or
  3. modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the Platform Services and/or Support as set out herein.

We shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Platform Services or Support with other equipment, software, apparatus, devices or things not supplied by Us or in a manner not substantially consistent with Our specifications and instructions. This section states Our entire liability for any type of infringement or breach whatsoever of intellectual property rights of third parties resulting from or relating to the provision by Us of the Platform Services and Support.

14.3  Mutual Provisions

Each party’s indemnity obligations in this Section 14 are subject to the following:

  1. the aggrieved party shall promptly notify the indemnifier in writing of the Claim, but in any event within 20 days of a party’s first knowledge of the existence of a potential Claim;
  2. the indemnifier shall have sole control of the defence and all related settlement negotiations with respect to the Claim; and
  3. the aggrieved party shall cooperate fully to the extent necessary, and executes all documents necessary for the defence of such Claim.

15.0  General Provisions

15.1 Entire Agreement

This Agreement, inclusive of the Order Forms and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, covenants, arrangements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and any Order Forms, the terms of the Order Form shall govern to the extent necessary to remedy such inconsistency.

15.2  Marketing

We shall not, without Your prior written consent in each instance, use in advertising, publicity or otherwise Your name, or that of any of Your partners or employees, nor any trade name, trademark, trade device or simulation thereof owned by You, or represent, directly or indirectly, that any product or any service provided by Us has been approved, recommended, certified, or endorsed by You. Such consent may be withheld by You for any or no reason.

15.3  Our Relationship

Nothing contained in this Agreement or any Order Form shall be deemed or construed as creating a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other party.

15.4  Non-exclusivity

Nothing in this Agreement or any Order Form will be construed to prevent Us from marketing, licensing, selling or otherwise providing the Platform Services or Support or Systems or any aspects of Our technology or services to any third party.

15.5  Modifications and Waiver

No modification, amendment or waiver to this Agreement or a Order Form is valid or binding unless set forth in writing and signed by both parties hereto. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.

15.6  No Assignment

This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or transferred by You. We may not assign, delegate, or otherwise transfer this Agreement or any of our rights or obligations under this Agreement without Your prior written consent.  This Agreement shall be binding upon and shall inure to the benefit of both parties and each of their successors and permitted assigns.

15.7  Governing Law

Unless otherwise specified in the Order Form, this Agreement and any Order Form shall be governed by the laws of the Province of Ontario, Canada, without regard to conflicts of laws, and the parties irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts therein. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement.

15.8  Notices

Any notices, demands and other communications hereunder shall be in writing and shall be delivered, sent by electronic transmission, or by mail, registered or certified, return receipt requested, postage prepaid, and addressed to the address specified in the most recent Order Form. All notices shall be effective and deemed to be delivered

  1. if mailed, on the fifth business day following such mailing, unless there is an interruption in the mail, in which case it shall be deemed to have been given when received; or
  2. if delivered or sent by facsimile, on the business day following the date of dispatch or the date of transmission, as the case may be.

Either party may change the address for notice by giving written notice of such change to the other party in the manner provided in this Section.

15.9  Severability

If any provision of this Agreement or an Order Form is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.

15.10  Force Majeure

Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances


Last Updated: May 25, 2018