Last update: November 16, 2020

GENERAL TERMS AND CONDITIONS FOR CLIENT SERVICES 

You (Client“, “you“,  or “your) have agreed to receive the Services (as defined below) from UntappedLab Inc. (“UntappedLab“, “Company“, “we“, “us” or “our“) pursuant to the client services application order that you have completed, executed and delivered to us (the “Application Order Form”). These general terms and conditions for the client services pursuant to the Application Order Form (collectively, the “General Terms and Conditions”) set out the representations, warranties, conditions, covenants and agreements related to the Services received by you from us pursuant to the Application Order Form (whereby collectively, the Application Order Form and the General Terms and Conditions are the “Agreement”) applicable to the Services. This Agreement is a binding contract between you and UntappedLab and it explains your rights and obligations when we provide you with the Services.  

    1. Services.
      1. General. We grant to you a non-exclusive, non-transferable and world-wide right to use the Thrive product services and/or the Spectrum product services as reflected in your Application (including its implementation and configuration), (collectively, the “Services“).
      2. Commencement and Term. The commencement date of the Services (the “Commencement Date“) is in effect as of the effective date set out in the Application Order Form. The Commencement Date may be rescheduled to a new date that is mutually agreed upon in writing by both Parties.
      3. Client Responsibilities. During the term of this Agreement, you shall use the Services and any user manuals and related documentation and information (the “Documentation”) solely for your internal purposes as contemplated therein and you shall not, and shall not allow any users or other Persons to: (i) possess, download or copy the Services or any part of the Services, including any component which is part of the Services, but not including any output from the Services; (ii) knowingly interfere with service to any of Company’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (iii) modify, translate or reverse translate, reverse engineer, decompile, decode, disassemble, or create derivative works based on the Services and/or documentation related thereto; (iv) circumvent any user limits or other timing or use restrictions or limits that are built into the Services; (v) sell, resell,  transfer, assign, distribute, rent, lease, lend, license, sublicense, or grant any rights in the Services or Documentation in any form to any Person without the written consent of the Company or otherwise commercially exploit or make the Services or Documentation available to any third party, other than as expressly contemplated by this Agreement; (vi) remove any proprietary notices, labels, or marks from the Documentation; (vii) create any “links” to or “frame” or “mirror” of the Services or any portion thereof; (viii) build a product or service that is competitive with the Service; (ix) copy any ideas, features, functions or graphics of the Services; (x) use the Services or Documentation in violation of applicable laws; or (xi) except as expressly permitted in the Documentation, remove any trademarks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the Documentation or through the use of the Services. You will comply with all laws and regulations applicable to your business and your use of the Services. Client shall be solely responsible and liable for including any disclaimers or other notices with any Client Data (as defined below) that it may deem necessary thereto.
      4. Company Responsibilities. UntappedLab will (i) comply with all laws and regulations applicable to its business and provision of the Services, and (ii) provide the Services in accordance with the Documentation.
      5. Confirmation. Client acknowledges and agrees that the investor leads thresholds will be in accordance with the limits set out in the Application Order Form.
      6. We may make changes to the Services and will inform you of any such changes. We may suspend your use of the Services if continued use may result in material harm or be adverse to us or our clients and business partners, and we will inform you of any such suspension. We will limit the suspension in time and scope as reasonably possible under the circumstances.
    2. Client Data.  As between Company and Client, Client exclusively owns all rights, title and interest in and to all of its data (the “Client Data”). Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use the Client Data. Except as provided for herein, Company does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Client Data. Client hereby grants a non-exclusive license and right in or relating to Client Data: (a) to Company, its subcontractors and personnel as are necessary or useful to provide and perform the Services; and (b) to Company as is necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder. Client acknowledges and agrees that the Company may compile, store and use aggregated data and system usage, analytics and diagnostic information to monitor and improve the Services, for the development of new products and services and for any of its other business purposes. Client hereby grants to Company a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to collect, process and aggregate Client Data and other such above-mentioned learning information and data and create anonymized, aggregated data records and use such anonymized and aggregated data, and all modifications thereto and derivatives thereof (“Derivative Data”) to monitor and improve the Services, develop new products and services, to understand usage, and for any other business purpose. This Derivative Data is no longer associated with Client and as such is not Client Data. 
    3. Fees
      1. Client will pay Company the fees for the Services as set out in the Application Order Form (collectively, “Fees“). All Application Order Forms are non-cancellable and fees non-refundable.
      2. Fees and other charges imposed in respect of the Services will not include taxes, all of which will be for Client’s account. Client is responsible for all taxes, other than our income and payroll taxes. If we are required to pay taxes (other than our income and payroll taxes) in respect of the Services, you will reimburse us for those amounts and indemnify us for any taxes and related costs paid or payable by us attributable to those taxes.
    4. Intellectual Property. Except as expressly provided herein, this Agreement does not grant either Party any right, title, interest, or license (express or implied) to any property, right or interest of the other Party. All rights not expressly granted by one Party (the “Former Party”) to the other Party are reserved to the Former Party and its licensors.
    5. Confidentiality.
      1. Confidential Information. For the purposes of this Agreement, “Confidential Information” means all data or information that is competitively sensitive material and/or not generally known to the public; including, but not limited to, information which is marked confidential or proprietary, customer lists (but excluding payment data), technology, inventions, systems, operations, facilities, products, services, discoveries, ideas, concepts, research and development, processes, operating procedures, marketing, business and development plans, pricing, policies and financial information. 
      2. Disclosure and Use Restrictions. Neither Party will disclose, reproduce, transfer or use the other party’s Confidential Information; provided, however, that (i) Partner’s employees, affiliates, agents, advisors or subcontractors may access and use Company’s Confidential Information in connection with providing the Services provided such persons will comply with the confidentiality provisions of the Agreement, and (ii) either Party may disclose Confidential Information to the extent it must be communicated in response to a valid law, regulation or court order, provided the disclosing Party uses reasonable efforts to notify the other Party prior to disclosure (unless such notification is prohibited by law, regulation or court order) so such Party may seek a protective order, at that Party’s sole cost, or otherwise prevent or limit such disclosure. Any Confidential Information of either Party disclosed prior to execution of the Application Order Form will be subject to Section 5. In the event of legal proceedings relating to the Confidential Information, the receiving Party will cooperate with the disclosing Party and comply with applicable law (all at disclosing Party’s expense) with respect to handling of the Confidential Information, including without limitation in seeking means to limit the disclosure thereof.
      3. Exceptions. The restrictions on use or disclosure of Confidential Information will not apply to any information which: (i) is or becomes part of the public domain through no fault of the receiving Party; (ii) was already known to the receiving Party prior to its disclosure; (iii) is lawfully obtained from a third party without obligations of confidentiality; (iv) is independently developed by the receiving Party without reference to any Confidential Information of the other Party; or (v) the disclosing Party agrees in writing that it is free of confidentiality restrictions.
    6. Equitable Relief. In the event of a breach of any of the covenants contained herein, including the provisions of Section 4 or Section 5, by a Party (the “Breaching Party“), it is understood and agreed by the Parties that damages may be impossible to assess and there may be an insufficient remedy for the non-breaching Party, and the non-breaching Party may petition a court of law or equity for injunctive relief, in addition to any other relief or damages which the non-breaching Party may have under the applicable law, including payment of the non-breaching Party’s legal fees on a solicitor and client basis. The breaching Party agrees that, in the event of any breach of the covenants contained herein, including the provisions of Section 4 or Section 5, the non-breaching Party shall have the right to seek injunctive relief against the continuing or further breach by the breaching Party. A breach by any affiliates of the breaching Party shall be deemed to be a breach of the breaching Party of any such terms of this Agreement.
    7. Representations and Warranties. As of the date the Parties have entered into this Agreement, each Party represents and warrants to the other Party as follows and acknowledges that the other Party is relying on such representations and warranties in connection with it entering into the Agreement: (a) it is a corporation, partnership or, as applicable, other entity validly existing and in good standing, in all material respects, under the laws it operates under; (b) it has all necessary corporate power, authority, and capacity to enter into this Agreement and to perform its obligations hereunder; (c) the execution and delivery of this Agreement has been duly authorized by all necessary corporate action on its part; (d) this Agreement has been duly executed and delivered by it and constitutes a valid and binding obligation upon the Party, enforceable against it in accordance with the terms hereof, subject however, to applicable bankruptcy, insolvency, and other laws of general application limiting the enforcement of creditor’s rights generally; (e) it is not a party to, bound or affected by or subject to any indenture, mortgage, lease, agreement, option, instrument, charter or by-law provision, judgment, decree, order, regulation or rule of any governmental authorities, domestic or foreign, which would be violated, contravened or breached by the performance of its obligations herein or the consummation of the transaction contemplated herein; and (f) neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated to be consummated by the Party hereby, nor the compliance by the Party with any of the provisions hereof will result in a material violation or conflict with any applicable law to which the Party is subject.
    8. Indemnification
      1. Mutual Indemnity. Subject to Section 9, each Party (referred to as the “Indemnifying Party” below) will defend, indemnify, save and hold harmless the other Party (the “Related Indemnified Party“) and its affiliates (collectively, Related Indemnified Party and its affiliates are the “Indemnified Parties” and each is an “Indemnified Party“) from and against any and all losses, liabilities, actions, claims, judgments, settlements, damages, costs and expenses, including reasonable fees, expenses and costs of outside and in-house legal counsel (collectively, “Losses“) incurred or suffered by any Indemnified Party relating to: (a) any material breach by the Indemnifying Party of its representations, warranties, covenants, or agreements under this Agreement; (b) any negligence, fraud or willful misconduct, by the Indemnifying Party relating to this Agreement; or (c) any material nonfulfillment of any obligation or agreement on the part of the Indemnifying Party of this Agreement. 
      2. Intellectual Property and Client Data Claims. Without duplication with Section 8(a) and subject to Section 8(c) and Section 9:
        1. We will defend, indemnify, save and hold harmless Client and its affiliates (collectively, Client and its affiliates are the “Client Indemnified Parties” and each is a “Client Indemnified Party“) from and against any Losses incurred or suffered by any Client Indemnified Party relating to the Services, including any third party claim that the Services infringe, misappropriate or violate such third party’s intellectual property or other contractual rights; and
        2. You will defend, indemnify, save and hold harmless Company and its affiliates (collectively, Company and its affiliates are the “Company Indemnified Parties” and each is a “Company Indemnified Party“) from and against any Losses incurred or suffered by any Company Indemnified Party relating to our use of Client Data, including any third party claim that use of the Client Data as contemplated hereunder infringe, misappropriate or violate such third party’s intellectual property or other contractual rights
      3. Cooperation. The obligation to indemnify under this Section 8 is contingent upon: (i) the Indemnified Party notifying, in a timely manner, the Indemnifying Party, in writing, of any claim, reasonably cooperating in the defense and appearing (if it so chooses and at its own expense) through counsel reasonably acceptable to the Indemnifying Party providing the defense; (ii) the Party that is obligated to defend a claim having the right to fully control the defense; (iii) the Indemnified Party reasonably cooperating, at the expense of the Indemnifying Party, during defense and settlement efforts; (iv) the claim(s) not arising, in whole or in part, out of the action or inaction of the Indemnified Party; and (v) any settlement of a claim not including a financial or specific performance obligation on, or admission of liability by, the indemnified Party against whom the claim is brought.
    9. Disclaimer and Limitation of Liability.
      1. Disclaimer. Except for the express warranties contained in this Agreement, none of the Parties make any representations or warranties, express or implied, in fact or in law, including, without limitation, any warranties of title, non-infringement, merchantability or fitness for a particular purpose in respect of the services such Party renders, and all such representations or warranties are hereby disclaimed.
      2. Limitation of Liability. Except for breaches in respect of the provisions of Section 4 (Intellectual Property) and Section 5  (Confidentiality) and claims under Section 8(b), and to the maximum extent permitted by any applicable law: (i) in no event shall any Party (the “Former Party“) be liable to any other Party in any manner whatsoever for any damages or losses of any nature, including, without limitation, any direct, indirect, incidental, special, consequential, exemplary, punitive or aggravated damages or losses, howsoever caused, or liability whatsoever arising out of the services or obligations thereunder or otherwise relating to or in connection with this Agreement or the Services, whether in contract, tort (including negligence) or any other statutory or common law basis, notwithstanding that the Former Party has, or its agents, employees or other personnel have, been advised of the possibility of any such damages, losses, or liabilities; and (ii) the maximum aggregate liability of either Party to the other Party in respect of any claim shall not exceed the Fees paid for the applicable Services within the 12-month period immediately preceding the date upon which the claim arose.  
    10. Term and Termination.
      1. Term. The term of the Agreement will commence as of the Commencement Date and continue as stated in the Application Order Form subject to earlier termination as set out in this Agreement.
      2. Termination by Either Party. In addition to any other remedies, either Party may terminate the Agreement if the other Party: (i) is dissolved, becomes insolvent, generally fails to pay or admits in writing its general inability to pay its debts as they become due; (ii) makes a general assignment, arrangement, or composition agreement with or for the benefit of its creditors; (iii) files a petition in bankruptcy or institutes any action under federal or provincial law for the relief of debtors; (iv) seeks or consents to the appointment of an administrator, receiver, custodian, or similar official for the wind up of its business; (v) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding related to insolvency, receivership, liquidation or composition for the benefit of creditors, and such proceeding is not dismissed or stayed within thirty (30) days; (vi) fails to make any undisputed payment of any obligation when due; (vii) violates any applicable law in connection with the Services; or (viii) breaches a material representation, warranty, term, condition or obligation under the Agreement, and fails to cure such breach within thirty (30) days after receiving written notice of such breach.
  • Effects of Termination. Upon the effective date of expiration or termination of the Agreement: (i) the expiration or termination of this Agreement shall not affect any rights accruing to any of the Parties as of the expiration or termination nor shall it release the Parties from any obligation that may have been incurred as a result of operations conducted under this Agreement;  (ii) unless otherwise agreed to by the Parties in writing, all rights and privileges granted to each Party hereunder shall terminate and cease to be valid and each Party shall release the other Party, subject to the completion of ongoing obligations or matters as set forth under this Agreement; (iii) each Party shall immediately return to the other Party all Confidential Information of the other Party or to which the Party had obtained pursuant to this Agreement or, at the sole option of the other Party (as it may direct in writing), destroy all such materials; and (iv) the Company shall pay all outstanding undisputed Fees due and payable to the Client within the prescribed period.
    1. General Terms.
      1. Status. The Parties are independent businesses and/or business Persons, and deal with each other on a totally independent basis in respect of this Agreement and the Services and the Parties shall have no agency, joint venture, employer-employee, partnership, fiduciary, or other special relationship. The Parties acknowledge that they are responsible for their own employees, and that each of its employees shall be its own and shall not be employees of the other Party. Each Party hereby acknowledges and agrees that it will not, and has no authority to, enter into any agreement on behalf of or otherwise obligate or bind the other Party.
      2. Entire Agreement. The entire agreement with respect to the subject matter of this Agreement is contained herein, including the Application Order Form and any agreement and document referenced herein or delivered hereto or pursuant to the Services, and in all amendments to any of the foregoing as agreed to by the Parties. This Agreement supersedes all other agreements, undertakings, negotiations, and discussions, whether oral or written, between the Parties with respect to the subject matter of this Agreement. There are no other promises, representations, warranties or collateral terms or conditions or collateral agreements affecting this Agreement.
      3. Time of the Essence. Time shall be of the essence in all respects of this Agreement and every part thereof.
      4. Amendment and Waiver. No supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the Party to be bound. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision (regardless of whether similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. No investigations made by or on behalf of a Party at any time shall have the effect of waiving or diminishing the scope of or otherwise affecting any representation, warranty, or indemnity made by, or imposed upon the other Party in this Agreement or any document delivered pursuant to this Agreement.
      5. Binding Effect. This Agreement shall enure to the benefit of and be binding upon the Parties hereto and each Party’s respective successors and permitted assigns, as applicable.
      6. Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
      7. Remedies. All remedies provided in accordance with this Agreement are cumulative and are in addition to any and all legal rights of the Parties herein.
      8. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to any principles of conflicts of law, and shall be treated in all respects as an Ontario contract. The Parties consent to the exclusive jurisdiction of the Courts of the Province of Ontario for the purpose of any action or proceeding brought by either of them in connection with or arising out of this Agreement and consent to the venue of such Courts in the City of Toronto in the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement to the extent that such laws may apply herein or to any agreement or document hereto and the Uniform Computer Information Act does not apply to this Agreement.
      9. Assignment. Neither this Agreement nor any of the rights or obligations under this Agreement are assignable or transferable by Client without the prior written consent of Company. Any attempt by Client to assign any of the rights or obligations of this Agreement except as permitted by this Agreement is void.
      10. Notices. All notices between the Parties will be in writing, including in electronic form, and given when delivered to the address or as otherwise set forth in an Application Order Form. 
      11. Force Majeure. No Party hereto shall be held liable to the other Party to perform its services or obligations for the other Party where such performance is prevented, delayed, or interfered with by riots, war or hostilities between any nation, acts of terrorism, acts of God, fire, storm, flood, earthquake, strikes, labor disputes, shortage or delay of carriers, power or other utility services, any governmental restrictions, and/or any other conditions or contingencies beyond the reasonable control of the affected Party. In case of the occurrence of an event of force majeure, the affected Party shall immediately notify the other Party, and the Parties shall discuss appropriate measures to take, including the possibility of termination of this Agreement. Any cessation of obligations under this Agreement shall last only so long as the event of force majeure persists.
      12. Further Assurances. The Parties shall from time to time execute and deliver all such further documents and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement, including any collection, disposition, realization or enforcement of any assignment and waiver of rights contemplated hereunder.
      13. Currency. All dollar amounts referred to in this Agreement, including any Schedules, are in the currency set out in the Application Order Form.
      14. Extended Meaning. In this Agreement: (i) words denoting the singular include the plural and vice versa; (ii) the word “including” shall mean “including without limitation” and the word “includes” shall mean “includes without limitation”; (iii) terms such as “hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions means this Agreement as the foregoing may be amended from time to time in accordance with the provisions hereof; and (iv) the division of this Agreement into separate articles, sections, subsections, paragraphs, subparagraphs, schedules, and appendices, the Agreement’s title, and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
      15. Survival. All terms and provisions of this Agreement, which by their nature are intended to extend beyond the expiration or termination of this Agreement, shall remain in full force and effect until fulfilled and/or performed, including and without limiting the generality of any of the foregoing, the provisions contained in Sections 4, 5, 6, 8, 9, Section 10(a), Section 11(a) and all consecutive Sections thereafter through to and including this Section 11(o).

     

    GENERAL TERMS AND CONDITIONS FOR DISTRIBUTION PARTNER PROGRAM SERVICES 

    You (“Partner“, “you“,  or “your“) have subscribed to provided Services (as defined below) pursuant to the distribution partner program services application order from that you have completed, executed and delivered to us (the “Application Order Form”). These general terms and conditions for the distribution partner program services pursuant to the Application Order Form (collectively, the “General Terms and Conditions”) set out the representations, warranties, conditions, covenants and agreements related to the Services received by UntappedLab Inc. (“UntappedLab“, “Company“, “we“, “us” or “our“) from you pursuant to the Application Order Form (whereby collectively, the Application Order Form and the General Terms and Conditions are the “Agreement”) applicable to the Services. This Agreement is a binding contract between you and UntappedLab and it explains your rights and obligations when you provide the Services.  

      1. Services.
        1. General. You have agreed to provide UntappedLab with services comprising of posting of UntappedLab’s clients’ (each a “Client” and collectively, the “Clients“) press releases, media coverage and other online content (the “Postings“) on your bona fide and verifiable social media accounts, including, without limitation, on your Twitter, Facebook, Instagram, LinkedIn, YouTube and blog accounts and such other media accounts that you may use (each a “Channel” and collectively the “Channels“) from time to time (each individually a “Service” and collectively, the “Services“). UntappedLab grants to you a non-exclusive, non-transferable and limited right to provide the Services.
        2. Commencement. The commencement date of the Services (the “Commencement Date“) is in effect as of the effective date set out in the Application Order Form. The Commencement Date may be rescheduled to a new date that is mutually agreed upon in writing by both Parties.
        3. Partner Responsibilities. During the term of this Agreement, unless otherwise set out in the Application Order Form, you will: (i) provide us with Services in your personal capacity and shall not subcontract the Services in any manner; (ii) provide us with standard reporting, if any, associated with use of the Services, including providing us with all applicable analytics regarding any Service you provide no later than 72 hours following the provision of the Service; (iii) perform the Service in compliance with all laws applicable to you; (iv) maintain the Postings on your social media site during the duration that such site remains an active site; (v) provide all relevant information, including as may be requested by us, confirming that the Channels are legitimate social media channels; (vi) ensure that no content or data that is unlawful or infringes any intellectual property or other rights of any Client or other person, entity, organization or individual is transmitted; and (vii) comply with all laws and regulations applicable to your business and the Service provided by you. You will be solely responsible for the Services. You will not at any time: (i) alter or modify any Posting; or (ii) provide any commentary or link any commentary to any Posting. 
        4. Company Responsibilities. UntappedLabs will comply with all laws and regulations applicable to our business and our use of a Service.
        5. Changes to Services. You shall not change any attributes of a Service without the prior written consent of Company. We may make changes to the Services and will inform you of any such changes. We may suspend use of the Services if continued use may result in material harm or be adverse to us or our Clients. We will inform you of any suspension.
      2. Data. Each Posting is provided on an “as is” and “where is” basis. We will not be responsible nor shall we assume any liability regarding the validity, accuracy and completeness of all information in any Postings. 
      3. Fees. We will pay you the fees for the Services as set out in the Application Order Form (collectively, “Fees“). You shall not be entitled to any other payment or charges for the Services other than the Fees. 
      4. Intellectual Property. Except as expressly provided herein, this Agreement does not grant either Party any right, title, interest, or license (express or implied) to any property, right or interest of the other Party. All rights not expressly granted by one Party (the “Former Party”) to the other Party are reserved to the Former Party and its licensors.
      5. Confidentiality.
        1. Confidential Information. For the purposes of this Agreement, “Confidential Information” means all data or information that is competitively sensitive material and/or not generally known to the public; including, but not limited to, information which is marked confidential or proprietary, customer lists (but excluding payment data), technology, inventions, systems, operations, facilities, products, services, discoveries, ideas, concepts, research and development, processes, operating procedures, marketing, business and development plans, pricing, policies and financial information. 
        2. Disclosure and Use Restrictions. Neither Party will disclose, reproduce, transfer or use the other party’s Confidential Information; provided, however, that (i) Partner’s employees, affiliates, agents, advisors or subcontractors may access and use Company’s Confidential Information in connection with providing the Services provided such persons will comply with the confidentiality provisions of the Agreement, and (ii) either Party may disclose Confidential Information to the extent it must be communicated in response to a valid law, regulation or court order, provided the disclosing Party uses reasonable efforts to notify the other Party prior to disclosure (unless such notification is prohibited by law, regulation or court order) so such Party may seek a protective order, at that Party’s sole cost, or otherwise prevent or limit such disclosure. Any Confidential Information of either Party disclosed prior to execution of the Application Order Form will be subject to Section 5. In the event of legal proceedings relating to the Confidential Information, the receiving Party will cooperate with the disclosing Party and comply with applicable law (all at disclosing Party’s expense) with respect to handling of the Confidential Information, including without limitation in seeking means to limit the disclosure thereof.
        3. Exceptions. The restrictions on use or disclosure of Confidential Information will not apply to any information which: (i) is or becomes part of the public domain through no fault of the receiving Party; (ii) was already known to the receiving Party prior to its disclosure; (iii) is lawfully obtained from a third party without obligations of confidentiality; (iv) is independently developed by the receiving Party without reference to any Confidential Information of the other Party; or (v) the disclosing Party agrees in writing that it is free of confidentiality restrictions.
      6. Equitable Relief. In the event of a breach of any of the covenants contained herein, including the provisions of Section 4 or Section 5, by a Party (the “Breaching Party“), it is understood and agreed by the Parties that damages may be impossible to assess and there may be an insufficient remedy for the non-breaching Party, and the non-breaching Party may petition a court of law or equity for injunctive relief, in addition to any other relief or damages which the non-breaching Party may have under the applicable law, including payment of the non-breaching Party’s legal fees on a solicitor and client basis. The breaching Party agrees that, in the event of any breach of the covenants contained herein, including the provisions of Section 4 or Section 5, the non-breaching Party shall have the right to seek injunctive relief against the continuing or further breach by the breaching Party. A breach by any affiliates of the breaching Party shall be deemed to be a breach of the breaching Party of any such terms of this Agreement.
      7. Representations and Warranties
        1. Representations and Warranties. As of the date the Parties have entered into this Agreement, each Party represents and warrants to the other Party as follows and acknowledges that the other Party is relying on such representations and warranties in connection with it entering into the Agreement: (a) it is a corporation, partnership or, as applicable, other entity validly existing and in good standing, in all material respects, under the laws it operates under; (b) it has all necessary corporate power, authority, and capacity to enter into this Agreement and to perform its obligations hereunder; (c) the execution and delivery of this Agreement has been duly authorized by all necessary corporate action on its part; (d) this Agreement has been duly executed and delivered by it and constitutes a valid and binding obligation upon the Party, enforceable against it in accordance with the terms hereof, subject however, to applicable bankruptcy, insolvency, and other laws of general application limiting the enforcement of creditor’s rights generally; (e) it is not a party to, bound or affected by or subject to any indenture, mortgage, lease, agreement, option, instrument, charter or by-law provision, judgment, decree, order, regulation or rule of any governmental authorities, domestic or foreign, which would be violated, contravened or breached by the performance of its obligations herein or the consummation of the transaction contemplated herein; and (f) neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated to be consummated by the Party hereby, nor the compliance by the Party with any of the provisions hereof will result in a material violation or conflict with any applicable law to which the Party is subject.
        2. Good Industry Practice. You warrant that you will provide the Services: 
          1. in substantial conformance with the Application Order Form and this Agreement; and
          2. with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Services.
        3. No Conflict. You warrant that you are not a party to, bound or affected by or subject to any indenture, mortgage, lease, agreement, option, instrument, charter or bylaw provision, judgment, decree, order, regulation or rule of any governmental authorities, domestic or foreign, which would be violated, contravened or breached by the performance of the Services. 
        4. Consents. Partner further represents, warrants and covenants that it owns, and/or has obtained all necessary licenses, releases and consents for, any and all intellectual property that Partner may use in the provision of the Services.
      8. Indemnification
        1. Mutual Indemnities. Without duplication with Section 8(b) and subject to Section 8(c) and Section 9, each Party (referred to as the “Indemnifying Party” below) will defend, indemnify, save and hold harmless the other Party (the “Related Indemnified Party“) and its affiliates (collectively, Related Indemnified Party and its affiliates are the “Indemnified Parties” and each is an “Indemnified Party“) from and against any and all losses, liabilities, actions, claims, judgments, settlements, damages, costs and expenses, including reasonable fees, expenses and costs of outside and in-house legal counsel (collectively, “Losses“) incurred or suffered by any Indemnified Party relating to: (a) any material breach by the Indemnifying Party of its representations, warranties, covenants, or agreements under this Agreement or the Application Order Form; (b) any negligence, fraud or willful misconduct, by the Indemnifying Party relating to this Agreement or the Application Order Form; or (c) any material nonfulfillment of any obligation or agreement on the part of the Indemnifying Party of this Agreement or the Application Order Form. 
        2. Intellectual Property Claims. Without duplication with Section 8(a) and subject to Section  8(c) and Section 9, Partner shall defend, indemnify, save and hold harmless Company and its affiliates (collectively, Company and its affiliates are the “Company Indemnified Parties” and each is a “Company Indemnified Party“) from and against any Losses incurred or suffered by any Company Indemnified Party relating to the Services, including any third party claim that the Services infringe, misappropriate or violate such third party’s intellectual property or other contractual rights. 
        3. Cooperation. The obligation to indemnify under this Section 8 is contingent upon: (i) the Indemnified Party notifying, in a timely manner, the Indemnifying Party, in writing, of any claim, reasonably cooperating in the defense and appearing (if it so chooses and at its own expense) through counsel reasonably acceptable to the Indemnifying Party providing the defense; (ii) the Party that is obligated to defend a claim having the right to fully control the defense; (iii) the Indemnified Party reasonably cooperating, at the expense of the Indemnifying Party, during defense and settlement efforts; (iv) the claim(s) not arising, in whole or in part, out of the action or inaction of the indemnified Party; and (v) any settlement of a claim not including a financial or specific performance obligation on, or admission of liability by, the indemnified Party against whom the claim is brought.
      9. Disclaimer and Limitation of Liability.
        1. Disclaimer. Except for the express warranties contained in this Agreement, none of the Parties make any representations or warranties, express or implied, in fact or in law, including, without limitation, any warranties of title, non-infringement, merchantability or fitness for a particular purpose in respect of the services such Party renders, and all such representations or warranties are hereby disclaimed.
        2. Limitation of Liability. Except for breaches in respect of the provisions of Section 4 (Intellectual Property) and Section 5 (Confidentiality) and claims under Section 8(b), and to the maximum extent permitted by any applicable law: 
          1. in no event shall any Party (the “Former Party“) be liable to any other Party in any manner whatsoever for any damages or losses of any nature, including, without limitation, any direct, indirect, incidental, special, consequential, exemplary, punitive or aggravated damages or losses, howsoever caused, or liability whatsoever arising out of the services or obligations thereunder or otherwise relating to or in connection with this Agreement or the Services, whether in contract, tort (including negligence) or any other statutory or common law basis, notwithstanding that the Former Party has, or its agents, employees or other personnel have, been advised of the possibility of any such damages, losses, or liabilities; and
          2. the maximum aggregate liability of either Party to the other Party in respect of any claim shall not exceed the Fees paid for the applicable Services within the 12-month period immediately preceding the date upon which the claim arose. 
      10. Insurance. You will take out and maintain in full force and effect all insurance required by law, together with sufficient insurance to cover such liabilities as it may incur by virtue of this Agreement or by reason of providing the Services (including professional indemnity insurance). You will, at our request, produce for our inspection a valid certificate of insurance in respect of such insurance coverage and the receipt for the then current premium.
      11. Term and Termination.
        1. Term. The term of the Agreement will commence as of the Commencement Date and continue as stated in the Application Order Form subject to earlier termination as set out in this Agreement.
        2. Termination by Either Party. In addition to any other remedies, either Party may terminate the Agreement if the other Party: (i) is dissolved, becomes insolvent, generally fails to pay or admits in writing its general inability to pay its debts as they become due; (ii) makes a general assignment, arrangement, or composition agreement with or for the benefit of its creditors; (iii) files a petition in bankruptcy or institutes any action under federal or provincial law for the relief of debtors; (iv) seeks or consents to the appointment of an administrator, receiver, custodian, or similar official for the wind up of its business; (v) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding related to insolvency, receivership, liquidation or composition for the benefit of creditors, and such proceeding is not dismissed or stayed within thirty (30) days; (vi) fails to make any undisputed payment of any obligation when due; (vii) violates any applicable law in connection with the Services; or (viii) breaches a material representation, warranty, term, condition or obligation under the Agreement, and fails to cure such breach within thirty (30) days after receiving written notice of such breach.
    • Effects of Termination. Upon the effective date of expiration or termination of the Agreement: (i)  the expiration or termination of this Agreement shall not affect any rights accruing to any of the Parties as of the expiration or termination nor shall it release the Parties from any obligation that may have been incurred as a result of operations conducted under this Agreement;  (ii) unless otherwise agreed to by the Parties in writing, all rights and privileges granted to each Party hereunder shall terminate and cease to be valid and each Party shall release the other Party, subject to the completion of ongoing obligations or matters as set forth under this Agreement; (iii) each Party shall immediately return to the other Party all Confidential Information of the other Party or to which the Party had obtained pursuant to this Agreement or, at the sole option of the other Party (as it may direct in writing), destroy all such materials; and (iv) the Company shall pay all outstanding undisputed Fees due and payable to the Partner within the prescribed period.
      1. General Terms.
        1. Status. The Parties are independent businesses and/or business Persons, and deal with each other on a totally independent basis in respect of this Agreement and the Services and the Parties shall have no agency, joint venture, employer-employee, partnership, fiduciary, or other special relationship. The Parties acknowledge that they are responsible for their own employees, and that each of its employees shall be its own and shall not be employees of the other Party. Each Party hereby acknowledges and agrees that it will not, and has no authority to, enter into any agreement on behalf of or otherwise obligate or bind the other Party.
        2. Entire Agreement. The entire agreement with respect to the subject matter of this Agreement is contained herein, including the Application Order Form and any agreement and document referenced herein or delivered hereto or pursuant to the Services, and in all amendments to any of the foregoing as agreed to by the Parties. This Agreement supersedes all other agreements, undertakings, negotiations, and discussions, whether oral or written, between the Parties with respect to the subject matter of this Agreement. There are no other promises, representations, warranties or collateral terms or conditions or collateral agreements affecting this Agreement.
        3. Time of the Essence. Time shall be of the essence in all respects of this Agreement and every part thereof.
        4. Amendment and Waiver. No supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the Party to be bound. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision (regardless of whether similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. No investigations made by or on behalf of a Party at any time shall have the effect of waiving or diminishing the scope of or otherwise affecting any representation, warranty, or indemnity made by, or imposed upon the other Party in this Agreement or any document delivered pursuant to this Agreement.
        5. Binding Effect. This Agreement shall enure to the benefit of and be binding upon the Parties hereto and each Party’s respective successors and permitted assigns, as applicable.
        6. Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
        7. Remedies. All remedies provided in accordance with this Agreement are cumulative and are in addition to any and all legal rights of the Parties herein.
        8. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to any principles of conflicts of law, and shall be treated in all respects as an Ontario contract. The Parties consent to the exclusive jurisdiction of the Courts of the Province of Ontario for the purpose of any action or proceeding brought by either of them in connection with or arising out of this Agreement and consent to the venue of such Courts in the City of Toronto in the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement to the extent that such laws may apply herein or to any agreement or document hereto and the Uniform Computer Information Act does not apply to this Agreement.
        9. Assignment. Neither this Agreement nor any of the rights or obligations under this Agreement are assignable or transferable by Partner without the prior written consent of Company. Any attempt by Partner to assign any of the rights or obligations of this Agreement except as permitted by this Agreement is void.
        10. Notices. All notices between the Parties will be in writing, including in electronic form, and given when delivered to the address or as otherwise set forth in an Application Order Form. 
        11. Force Majeure. No Party hereto shall be held liable to the other Party to perform its services or obligations for the other Party where such performance is prevented, delayed, or interfered with by riots, war or hostilities between any nation, acts of terrorism, acts of God, fire, storm, flood, earthquake, strikes, labor disputes, shortage or delay of carriers, power or other utility services, any governmental restrictions, and/or any other conditions or contingencies beyond the reasonable control of the affected Party. In case of the occurrence of an event of force majeure, the affected Party shall immediately notify the other Party, and the Parties shall discuss appropriate measures to take, including the possibility of termination of this Agreement. Any cessation of obligations under this Agreement shall last only so long as the event of force majeure persists.
        12. Further Assurances. The Parties shall from time to time execute and deliver all such further documents and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement, including any collection, disposition, realization or enforcement of any assignment and waiver of rights contemplated hereunder
        13. Currency. All dollar amounts referred to in this Agreement, including any Schedules, are in the currency set out in the Application Order Form.
        14. Extended Meaning. In this Agreement: (i) words denoting the singular include the plural and vice versa; (ii) the word “including” shall mean “including without limitation” and the word “includes” shall mean “includes without limitation”; (iii) terms such as “hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions means this Agreement as the foregoing may be amended from time to time in accordance with the provisions hereof; and (iv) the division of this Agreement into separate articles, sections, subsections, paragraphs, subparagraphs, schedules, and appendices, the Agreement’s title, and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
        15. Survival. All terms and provisions of this Agreement, which by their nature are intended to extend beyond the expiration or termination of this Agreement, shall remain in full force and effect until fulfilled and/or performed, including and without limiting the generality of any of the foregoing, the provisions contained in Sections 4, 5, 6, 8, 9, Section 11(c), and Section 12(a) and all consecutive Sections thereafter through to and including this Section 12(o) shall survive the expiration or termination of this Agreement.
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