These terms of service (“Terms”),together with the Order Form (as defined below, and together with these terms the “Agreement”) form a contract on the terms set out below by and between 10KC Technology Inc. (“10KC Technology Inc.”), a Canadian corporation, and Subscriber (as defined below) regarding the use of 10KCTechnology Inc. software platform.
THESE TERMS CONTAIN IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ THESE CAREFULLY BEFORE USING THE SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS HEREOF. IFYOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I)THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE SERVICE OR ANY OF ITS CONTENT OR FUNCTIONALITY.
1. DEFINITIONS.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”,for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Business Day” means any day, other than Saturday, Sunday or any statutory or civic holiday observed in the Province of Ontario, Canada;
“Documentation” means any and all written or electronic documentation, including user manuals and/or reference materials that 10KC Technology Inc. generally makes available to Service subscribers;
“Effective Date” means the start date set out in the applicable Order Form;
“TenThousandCoffees Platform” means the 10KC Technology Inc software as a service platform as described at tenthousandcoffees.com and otherwise within the Documentation;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; “Order Form” means any order form accepted by 10KC Technology Inc. incorporating these terms;
“Privacy Policy” means 10KCTechnology Inc. privacy policy as set out at https://www.TenThousandCoffees.com/privacy;
“Service” means the products and services that are ordered by Subscriber under an Order Form, including associated TenThousandCoffees offline or mobile components, as described in the Documentation.;
“Service Fee(s)” means the monthly or annual fees (as specified in the Order Form) payable by Subscriber to 10KC TechnologyInc. for the right to receive access to the Service;
“Site” means any of 10KC Technology Inc. websites, and include without limitation TenThousandCoffees.com, dashboard.TenThousandCoffees.com, help.TenThousandCoffees.com and status.TenThousandCoffees.com;
“Subscriber” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on be half of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms;
“Subscriber Data” means all electronic data or information submitted by Subscriber and/or its Users to the Service;
“Subscriber Site” means any website or URL that Subscriber redirects to or from using the Service;
“Term” shall mean the initial term of set out in the Order Form (“InitialTerm”) and all subsequent Renewal Terms (as defined in section 10.1);
“User” means (i) an employee, contractor or agent of Subscriber who is authorized by Subscriber to use the Service who has been supplied a user account or invited to use the Service by Subscriber (or by 10KC Technology Inc.at Subscriber’s request) for the Service as the case may be.
2. GRANT OF LICENSE.
2.1 Provision of Service. On the entering into of an Order Form and conditioned on the provisions in this Section 2 and the other terms and conditions of thisAgreement, the limitations set out in the Order Form and payment of the applicable fees, 10KC Technology Inc. shall make the Service available toSubscriber during the Term for the purpose of allowing Subscriber and its Users to use those Services set out in the Order Form in the internal operation ofSubscriber’s business, Subscriber shall not use the Service for any purposes other than the internal operation of Subscriber’s business, all as further described in this Agreement.
2.2 User Accounts. User accounts are for use by Subscriber’s employees, contractors and agents only, and cannot be shared or used by more than one person. User accounts may be reassigned to new employees, contractors or agents replacing former employees, contractors or agents who are no longer accessing the Service.
2.3 Subscriber Affiliates.Subscriber and Subscriber Affiliates may use the Service subject to the terms and conditions of this Agreement. Subscriber shall cause each Subscriber Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by suchSubscriber Affiliate shall be deemed an act or omission of Subscriber. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.
2.4 Reservation of Rights. The rights and licenses granted under this Agreement are only as expressly set forth herein. No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either party under this Agreement.
3. USE OF THE SERVICE.
3.1 10KC Technology Inc. Responsibilities. 10KC Technology Inc. shall:(i) in addition to its confidentiality obligations hereunder, not use or modify the Subscriber Data (except for the purposes of performing its obligations or exercising its rights under this Agreement) or disclose theSubscriber Data to anyone other than Subscriber and its applicable Users; (ii)use commercially reasonable efforts to maintain the security and integrity of the Service and the Subscriber Data; and (iii) use commercially reasonable efforts to make the Service available 99.9% of the time, except for: (a)planned downtime; or (b) any unavailability caused by circumstances beyond 10KCTechnology Inc. reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving 10KC TechnologyInc. employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within 10KC Technology Inc. possession or reasonable control, and denial of service attacks.
3.2 Subscriber Responsibilities. Subscriber is responsible for all activities that occur in User accounts and for its employees’,contractors’, customers’ and agents’ compliance with this Agreement. Subscriber shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data, including ensuring that Subscriber has obtained and necessary consents (including without limitation consent for the processing of personal information), and made any necessary disclosures to enable 10KC Technology Inc. to perform its obligations under this Agreement;(ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify 10KC Technology Inc. promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
3.3 Use Guidelines. Subscriber shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as required to provide the Service to Users as contemplated by this Agreement; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service or its related systems or networks; or (vii)use the Service in violation of any laws, including any laws related to privacy and the protection of personal information.
3.4 Publicity. Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's trademark standard guidelines.
4. FEES & PAYMENT.
4.1 Fees. In consideration for the receipt of theService, Subscriber shall pay 10KC Technology Inc. the Fees as specified in theOrder Form. All amounts are payable in US dollars unless otherwise specified in the applicable Order Form. In the event that Subscriber upgrades its subscription part-way through any Term, any fee change shall be prorated forthe remainder of that Term.
In the event travel is required and previously agreed to by both parties in writing, Subscriber will reimburse 10KC Technology Inc for its reasonable and actual out-of-pocket travel expenses directly incurred in providing training, consulting and implementation services, subject to confirmation in advance by Subscriber. 10KC Technology Inc will use reasonable efforts to leverage Subscriber’s preferred travel providers and respect Subscriber’s travel & expense policies.
4.2 Invoicing & Payment. Fees for the Service will be invoiced in advance on the basis set out in the Order Form. Unless otherwise stated in an invoice or in the Order Form “Payment Terms”, charges are due net thirty (30)days from the invoice date. Subscriber is responsible for maintaining complete and accurate billing and contact information with 10KC Technology Inc.
4.3 Taxes. Unless otherwise stated, the Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). Subscriber is responsible for paying allTaxes associated with its purchases pursuant to this Agreement, excluding taxes based on 10KC Technology Inc. net income or property. If 10KC Technology Inc. has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this section, the appropriate amount shall be invoiced to and paid bySubscriber, unless Subscriber provides 10KC Technology Inc. with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Audit Rights. 10KCTechnology Inc. shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Subscriber’s compliance with this Agreement.
4.5 Suspension of Service. IfSubscriber's account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, 10KC Technology Inc. shall have the right to suspend the Service provided to Subscriber, without liability to Subscriber, until such amounts are paid in full.
4.6 Fee Changes. At the end of the Initial Term or any RenewalTerm, 10KC Technology Inc. may change, in its sole discretion, any fees, upon sixty (60) days prior written notice to Subscriber and such revised prices shall become applicable to Subscriber at the start of the next Renewal Term.
5. PROPRIETARY RIGHTS.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, 10KC Technology Inc. reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Subscriber hereunder other than as expressly set forth herein.
5.2 Restrictions. Subscriber shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service; (d) frame or mirror any content forming part of the Service; (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service; or (f) use all or any portion of the Service for hazardous purposes requiring fail-safe performance, such as aircraft navigation, air traffic control, or weapons systems, in which the failure of the Service could lead directly to death, personal injury, or severe physical or environmental damage.5.3 Subscriber Data. As between 10KC Technology Inc. and Subscriber, Subscriber exclusively owns all rights, title and interest in and to all Subscriber Data. Subscriber Data is deemed Confidential Information under this Agreement. Subscriber hereby grants 10KC Technology Inc. a non-exclusive license for the Term (and for thirty (30) days thereafter) to use the Subscriber Data as reasonably required to provide the Service. 10KC Technology Inc. will have the right to create analytics, compile and freely use any data derived from Subscriber Data and/or data derived through use of the Service (“Derived Data”). For the avoidance of doubt, Derived Data does not include any raw Subscriber Data or Confidential Information of Subscriber, will not be used to identify Subscriber, and will be anonymized data which does not contain personal information. All right, title and interest in and to Derived Data will be owned by 10KC Technology Inc. The parties hereto acknowledge and agree that 10KC Technology Inc. will destroy all files and data left on the 10KC Technology Inc. platform as a result of the usage 30 days following the end of this Agreement.
5.4 Suggestions. 10KC Technology Inc. shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or its Users relating to the operation of the Service. For greater certainty, 10KC Technology Inc. shall have no obligation to modify the Service to implement any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or its Users.
6. CONFIDENTIALITY AND PRIVACY.
6.1 Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) that is marked as confidential at the time of disclosure or which if disclosed orally is identified as confidential at the time of disclosure and for which a written summary, which is marked as confidential, is provided to the receiving party within thirty (30) days thereafter. Notwithstanding the foregoing, the Service and all pricing information shall be deemed to be the Confidential Information of 10KC Technology Inc. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.6.6 Personal information. 10KC Technology Inc. will process any personal information of Users solely in accordance with the terms of its Privacy Policy. Subscriber acknowledges and agrees that 10KC Technology Inc.: (i) in the course of providing the Services, will process the IP address of any device that Is directed at any Subscriber Site; and (ii) personal information may be transferred to jurisdictions outside of the jurisdiction in which it was provided to us.
7. WARRANTIES & DISCLAIMERS.
7.1 General Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, 10KC Technology Inc. MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. INDEMNIFICATION.
8.1 Indemnification by 10KC Technology Inc. 10KC Technology Inc. shall, at its own expense, defend Subscriber, its Affiliates and its and their respective officers, directors, employees, consultants and agents (collectively, the “Subscriber Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Subscriber Indemnitees alleging that the Service (excluding the Subscriber Data) infringes any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold the Subscriber Indemnitees harmless from and against any settlement amounts agreed by 10KC Technology Inc. in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Subscriber Indemnitees by a court of competent jurisdiction in any IP Claim. As conditions for the defense and indemnification to be provided by 10KC Technology Inc. pursuant to this Section 8, Subscriber shall: (i) provide 10KC Technology Inc. with prompt written notice of any IP Claims and copies of relevant documentation regarding any IP Claims for which indemnification may be sought; (ii) give 10KC Technology Inc. sole control of the defense and settlement of such IP Claims; (iii) cooperate fully with 10KC Technology Inc., at 10KC Technology Inc. expense, in the defense or settlement of such IP Claims; and (iv) not settle any IP Claims or admit liability in respect to any IP Claims. This Section 8 sets forth the entire liability of 10KC Technology Inc. and the exclusive remedy of Subscriber for patent, copyright or other proprietary or intellectual property right infringement or misappropriation.
8.2 Mitigation. If an IP Claim has occurred, or in 10KC Technology Inc. opinion is likely to occur, 10KC Technology Inc. may, at its election and expense, either obtain for Subscriber the right to continue using the applicable Service or replace it with a comparable Service or modify the Service so that it become non-infringing. If neither of the foregoing alternatives is reasonably available, Subscriber agrees to discontinue use of the applicable portion of the Service, and may in its sole discretion terminate the Agreement upon written notice to 10KC Technology Inc. and receive a pro-rata refund of 10KC Technology Inc. Service Fees that were paid in advance, if any, in respect to time periods after the date of any such termination.
8.3 Exclusions. 10KC Technology Inc. shall have no obligations or liabilities to any of the Subscriber Indemnitees for any IP Claim that arises from or relates to (i) any unauthorized use of the Service by Subscriber; (ii) any combination of the Service with any technology, service or data provided by anyone other than 10KC Technology Inc., provided that such IP Claim would not have arisen but for such combination; or (iii) any modification of the Service by anyone other than 10KC Technology Inc., provided that such IP Claim would not have arisen but for such combination.
9. LIMITATION OF LIABILITY.
9.1 Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, ANY BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS, ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING THOSE OF ITS LICENSORS AND/OR SUPPLIERS), CLAIMS FOR NON-PAYMENT OR DEATH OR BODILY INJURY, IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAYABLE BY SUBSCRIBER TO 10KC Technology Inc. UNDER THE AGREEMENT DURING THE PRECEDING TWELVE- (12-) MONTH PERIOD.9.2 Exclusion of Consequential and Related Damages. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, ANY BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS, ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING THOSE OF ITS LICENSORS AND/OR SUPPLIERS), OR DEATH OR BODILY INJURY, NEITHER PARTY SHALL BE LIABLE TO ANY OTHER ENTITY OR PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST DATA, LOST SAVINGS, LOST OPPORTUNITY COSTS, LOST TIME OR GOODWILL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
10. TERM & TERMINATION.
10.1 Term of Agreement. This Agreement shall commence as of the Effective Date set forth in the Order Form and run for the Initial Term. The Term will automatically renew at the Contract Term end date for additional successive terms (each a “Renewal Term”), unless either party provides written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Each Renewal Term will last as long as the Initial Term
10.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Subscriber, 10KC Technology Inc. shall refund Subscriber any prepaid fees for any periods after the termination of the Agreement.
10.3 Outstanding Fees. Termination or expiration shall not relieve Subscriber of the obligation to pay any fees accrued or payable to 10KC Technology Inc. prior to the effective date of termination or expiration. This shall not apply in respect of any Trial Period.
10.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 3 through 11.
11. GENERAL PROVISIONS.
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to 10KC Technology Inc. shall be addressed to the attention of the Legal Department. Notices to Subscriber shall be addressed to Subscriber’s signatory of this Agreement unless otherwise designated below.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. Les parties aux présentes confirment que c’est leur volonté que la présente convention de même que tous les documents, y compris les avis, s’y rattachant, soient rédigés en Anglais seulement.
11.8 Venue; Waiver of Jury Trial. The provincial and federal courts located in Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
11.10. Export. Subscriber acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Subscriber shall comply with all export and import control regulations of such countries. Subscriber shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Subscriber shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.
11.11 Entire Agreement. This Agreement, including any Order Form, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
Last updated: June 16th, 2023
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