Provider Terms

Last updated: March 3, 2024

These Provider Terms (“Provider Terms”) are between Faspo Software, Inc. d/b/a Superpanel (“Provider”) and Customer and set out the terms on which Provider will make the Service (defined below) available to Customer and authorized Users. Provider operates a software as a service platform (“Service”) more fully described on the Order Form and the Provider’s website, www.superpanel.io (“Site”). The Service is provided on a subscription basis as further described in this Agreement and on the Site under specific subscription plans offered by Provider from time to time. The Service is provided through the Site. By accepting these Provider Terms, either by clicking a box indicating acceptance or executing an Order Form that references these Provider Terms, Customer agrees to and accepts these Provider Terms.

THESE PROVIDER TERMS (WHICH TOGETHER WITH THE ORDER FORM ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS,WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICE SO YOU SHOULD READ THEM CAREFULLY BEFORE USING THE SERVICE. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE PROVIDER TERMS, YOU AGREE TO AND ACCEPT THE TERMS HERE OF. IF YOU ARE AN AGENT OR EMPLOYEE ACCEPTING THIS AGREEMENT ON BEHALF 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 HERE UNDER.

  1. DEFINITIONS.

For the purposes of this Agreement, in addition to the capitalized terms defined else where in this Agreement, the following terms shall have the meanings ascribed to them as follows:

“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;

“Customer” 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 behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

‍“Customer Data” means all electronic data or information submitted to the Service by Customer or Users and any data or information received by the Service as a result of Interactions;

“Effective Date” means the date of last signature or acceptance of that Order Form.

“Fee” means the fees (as specified in the applicable Order Form) payable by Customer to Provider for the right to receive access to the Service;

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;

“Order Form” means a written document executed or otherwise accepted by each of the parties under which Customer agrees to subscribe for the Service under these Provider Terms, which may specify the Service, Subscription Period, Fees and any other additional commercial terms agreed by the parties;

“Pilot Period” means the period set out in the Order Form during which the Customer shall have access to the Service for evaluation purposes.

‍“Subscription Period” means the subscription period for the Service as specified in the applicable Order Form(s) executed by the parties;

“Term” has the meaning ascribed to that term in Section 11.1; and

‍“User” means an individual or entity who is authorized by Customer to use the Service, and who has been supplied a user account and password by Customer (or by Provider at Customer’s request) for the Service.

  1. GRANT OF LICENSE.

2.1           Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, Provider shall make the Service available to Customer for Customer’s internal business use during the Subscription Period. Customer’s right to use the Service during the Subscription Period shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Order Form(s).

2.2            User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service. Customer shall cause each User to comply with the terms and conditions of this Agreement to the full extent as if such User were a party here to, and any act or omission relating to this Agreement by such User shall be deemed an act or omission of Customer.

2.3            Customer Affiliates. Customer Affiliates may use the Service subject to the terms of this Agreement. Customer shall cause each Customer Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party here to, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. 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 here under and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.

‍2.4        Deployment and Custom Services. To deploy the Service for Customer, Provider may perform implementation, customization, or other support related to the Service (“Custom Services”),which may require Provider to access Customer’s internal systems and configurations. Depending on the Custom Services, the parties may be required to enter a statement of work setting out applicable commercial terms for the Custom Services (“Statement of Work”). Upon execution of a Statement of Work, Provider will perform the Custom Services for Customer all as described in the Statement of Work. Customer agrees to promptly grant Provider the necessary information and access as may be required by Provider to enable Service deployment and perform Custom Services. Customer agrees that Provider shall not be responsible for any delayed Service access attributable to Customer not meeting the Platform deployment conditions in this Agreement.  

  1. PILOT TERMS AND CONDITIONS

In case of conflict between this Section 3 and the rest of the Agreement, this Section 3 shall govern to the extent of the conflict.

‍3.1        Access. During the Pilot Period, subject to the terms of this Agreement, Customer may access and use the Service solely for internal evaluation purposes. If Customer does not wish to continue using the Service following the Pilot Period, Customer must notify Provider in writing within ten (10) days of the date the Pilot Period expires, in which case the Agreement shall be deemed terminated as of the Pilot Period expiry date. If Customer wishes to continue using the Service following the Pilot Period, on the date the Pilot Period expires, the Agreement shall continue to remain in effect for the remainder of the Term and Customer shall be obligated to pay applicable Fees and perform its other responsibilities here under.  

‍3.2        Loss of Features; Refunds. At the end of the Pilot Period, any Customer Data or Service customizations made during the Pilot Period may be permanently lost unless the Customer continues to use the Service in accordance with Section 3.1 or exports such data before the end of the Trial period. Unless expressly provided in the Order Form, Fees for the Pilot Period are non-refundable. 

‍3.3        Disclaimer. During the Pilot Period, the Service shall be provided to Customer on an “as-is” and “as-available” basis without any representation or warranty. Provider shall have no indemnification obligations nor liability of any type for the Service during the Pilot Period unless such exclusion of liability is not enforceable under applicable law, in which case Provider’s liability with respect to the Service during the Pilot Period shall not exceed the greater of USD $100.00 or the Fees paid and owing for the Service during the Pilot Period. Customer shall be fully liable to Provider for any damages arising out of the Customer’s use of the Service during the Pilot Period, including without limitation, any breach by the Customer of this Agreement during the Pilot Period.

  1. USE OF THE SERVICE.

4.1           Third-Party Platforms. The Service may integrate with or rely on artificial intelligence (“AI”) technologies powered by machine learning and third-party platforms (including, without limitation, third-party AI technologies (“AI Platforms”)) that are not owned or controlled by Provider (collectively, “Third-Party Platforms”). The use and enabling (as applicable) of any such Third-Party Platforms will be subject to any terms which govern and/or apply to such Third-Party Platforms. The Customer acknowledges that the Provider is not the owner of any Third-Party Platforms and makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance, or suitability of Third-Party Platforms.

‍4.2            Provider Responsibilities. Provider shall: (i) in addition to its confidentiality obligations here under, not use or modify the Customer Data (except for the purposes of performing its obligations or exercising its rights under this Agreement) or disclose the Customer Data to anyone other than Customer and the applicable Users(s); (ii) maintain the security and integrity of the Service and the Customer Data; (iii) provide basic support to Customer at no additional charge; and (iv) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which Provider shall give at least eight (8) hours’ notice via the Service and which Provider shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. Pacific Time Friday to 3:00 a.m. Pacific Time Monday); or (b) any unavailability caused by circumstances beyond Provider's 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 Provider employees), computer, telecommunications, Internet service Provider or hosting facility failures or delays involving hardware, software or power systems not within Provider’s possession or reasonable control, and denial of service attacks.

4.3            Customer Responsibilities. Customers responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Provider promptly of any such unauthorized access or use; (iii) have sole responsibility for obtaining all necessary consents, and providing all necessary notices in accordance with applicable laws to ensure Customer Data can be shared with and used by Provider as contemplated here in; and (iv) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.

‍4.4            Use Guidelines. Customer 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; (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; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.

4.5            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 standard guidelines.

‍4.6            Customer’s Use of the Service. Customer acknowledges that it is their responsibility, and not that of the Provider, for: (a) ensuring that use of the Service complies with any regulatory restrictions applicable to Customer; (b) executing and otherwise implementing agreements governing Customer’s relationship with Prospects (as the term is defined in the Order Form) and/or Clients (as the term is defined in the Order Form) in such detail as may be required by law; (c) including within Customer’s documentation with Prospects and/or Clients provisions stating that Customer, not Provider, is responsible for any Prospect and/or Client claims relating to Interactions or the Service (“End User Claims”); and (d) ensuring no End User Claims are brought against Provider for any matter arising in connection with this Agreement.

  1. FEES AND PAYMENT.

5.1            Fees. In consideration for the receipt of the Service, Customer shall pay Provider the Fees specified in the applicable Order Form. Provider reserves the right to amend Fees on not less than 30 days’ advance notice in writing to Customer. Except as expressly provided in this Agreement, all Fees are non-refundable.

‍5.2            Invoicing and Payment. Fees for the Service will be invoiced upon the Effective Date unless otherwise specified in the applicable Order Form executed by the parties. Unless otherwise stated in an invoice or the Order Form, invoiced Fees are due net thirty (30) days from the invoice date.

‍5.3            Overdue Payments. Any Fees owing not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Provider's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

‍5.4            Taxes. Unless otherwise stated, Provider's fees do not include any taxes, levies, duties or similar governmental assessments of any nature (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases here under, excluding taxes based on Provider's net income or property. If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.

‍5.5             Suspension of Service. If Customer's account is fifteen (15) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Provider reserves the right to suspend the Customer’s access to the Service, without liability to Customer, until such amounts are paid in full.

  1. PROPRIETARY RIGHTS.

6.1           Reservation of Rights. Subject to the limited rights expressly granted here under, Provider reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer here under other than as expressly set forth in this Agreement. All developments, configurations, enhancements, or other changes to the Service made by the Provider while performing Custom Services (“Developments”) shall be and remain the sole and exclusive property of the Provider. Upon completion of the Developments, the Developments will constitute an element of the Platform and will there after be subject to the Agreement’s terms and restrictions applicable to the Service.

‍6.2        Restrictions. Customer shall not (and shall not allow any third party to):  (a) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering; (b) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) use the Service to store or transmit malicious code, files, scripts, agents or programs intended to do harm; (d) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (e) attempt to gain unauthorized access to the Service or its related systems or networks; (f) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or use the Service to access, copy or use any of Provider’s intellectual property except as permitted under this Agreement; (g) modify, copy, or create derivative works of the Service or any part, feature, function or user interface there of; (h) frame or mirror any part of the Service, except as expressly permitted here in or on the Site; or (i) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Service or access the Service in order to: (1) build a competitive product or service or support a third party in doing so, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service,or (4) determine whether the Service is within the scope of any patent.

‍6.3         Customer Data. As between Provider and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under this Agreement. Provider shall not access Customer's or User’s Service accounts, including Customer Data, except to respond to service or technical problems or at Customer's request or as necessary for the operation of the Service or billing. The Provider shall only store and process Customer Data to the extent reasonably required to provide the Service. Customer here by grants Provider a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for sixty (60) days there after) to process the Customer Data as reasonably required to provide the Service.

‍6.4          Usage Analytics. Provider shall have the right to create aggregated and anonymized statistical analytics in respect to Service use by Customer and/or Users (“Aggregated Statistics”), provided any Customer Data underlying Aggregated Statistics shall be in aggregated and anonymized form and not capable of referencing back to an identifiable individual. Provider shall own all Aggregated Statistics.

‍6.5          Suggestions. Provider shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Service.

  1. CONFIDENTIALITY.

7.1          Definition of Confidential Information. As used here in, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Form here under), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. 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. Customer Data in anonymized and aggregated form and Aggregated Statistics shall not constitute Customer’s Confidential Information.

‍7.2         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. The Disclosing Party retains all rights in and to its Confidential Information. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any third party other than its affiliates, employees, contractors, or advisors who are bound by confidentiality obligations no less protective than those set out in this Agreement. The Receiving Party shall remain responsible for compliance with this “Confidentiality” section by such third parties.

‍7.3           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).

7.4        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.

‍7.5           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 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 maybe inadequate.

  1. WARRANTIES AND DISCLAIMERS.

8.1          Warranties. Each party warrants that it has the legal power to enter into this Agreement. Provider warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision there of, and otherwise in accordance with applicable law; and (ii) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in Customer Data or otherwise originating from Customer or User). Customer warrants that it has the required consent of Prospects and/or Clients to use and share their information, including but not limited to personal information, with Provider via the Service.

‍8.2        Regulatory Obligations; AI Solutions. Use of or reliance on the Service will not guarantee any result or compliance with any regulatory requirements. Customer is prohibited from using AI Solution in certain prohibited manners, which include, but are not limited to, by passing filters or otherwise making an AI Service perform unanticipated actions, exposing any information used in an AI Solution’ training data, overriding the privacy or security controls in an AI Service, creating or exacerbating biases in an AI Service, or otherwise negatively impacting an AI Solution’ safeguards. Given the probabilistic nature of machine learning, Customer should evaluate the accuracy of any Interaction as appropriate for their use case, including by manually reviewing the Prospect’s eligibility for services. Customer shall be solely responsible for all decisions made, advice given, actions taken, and failures to act based on use of or reliance on the Service.

‍8.3          Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 AND 8.2, PROVIDER 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/ORCONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  1. INDEMNIFICATION.

9.1         Indemnification by Provider. Subject to this Agreement, Provider shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Provider and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against Customer by a court or tribunal of competent jurisdictionin such IP Claim. As conditions for such defense and indemnification by Provider, (i) Customer shall notify Provider promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Provider sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperatefully with Provider in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Provider’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect there to.

‍9.2           Mitigation. If (a) Provider becomes aware of an actual or potential IP Claim, or (b) Customer provides Provider with notice of an actual or potential IP Claim, Provider may(or in the case of an injunction against Customer, shall), at Provider’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III)if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Fees for any periods after the termination of the Service, less any outstanding Fees owed by Customer to Provider.

‍9.3           Exclusions. The obligations in Sections 9.1 and 9.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by Provider with other products, software or services not provided by Provider; (2) any IP Claim related to any Customer Data or Third-Party Platform, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.

‍9.4           Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Provider harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with: (i) Customer and/or User’s use of the Service; (ii) violation of this Agreement by Customer and/or User; (iii) Customer’s and/or User’s gross negligence or willful misconduct; and (iv) any End User Claims (“Customer Claims”); provided, that Provider gives Customer sole control of the defense and settlement of each Customer Claim (provided that Customer may not settle or defend any Customer Claim unless it unconditionally released Provider of all liability); and provides to Customer, at Customer’s cost, all reasonable assistance in respect to each Customer Claim.

  1. LIMITATION OF LIABILITY.

10.1           Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER TO PROVIDER HERE UNDER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

‍10.2           Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

‍10.3           Certain Damages Not Excluded. NOT WITH STANDING SECTIONS 10.1 AND 10.2, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR(IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.

‍10.4           Beneficiaries. Every right, exemption from liability, release, defence, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.

  1. TERM AND TERMINATION.

11.1           Term of Agreement.  This Agreement shall commence as of the date set out in the Order Form and shall continue in effect for the Subscription Period specified in the Order Form or, if not so specified, an initial term of one (1) year (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the Initial Term maybe extended by mutual written agreement for additional renewal terms of equal length (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term here of.  Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”. If this Agreement expires and there are any outstanding Order Forms that have Subscription Periods that extend beyond the effective date of expiration of this Agreement, then this Agreement shall remain in effect in respect to such Order Forms until such Subscription Periods have completed, where upon this Agreement shall expire (subject to Section 12.4 (Surviving Provisions)).  If this Agreement is terminated for cause by either of the parties then all Order Forms shall terminate at the same time as this Agreement terminates.

11.2           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 Customer (but not otherwise), Provider shall refund Customer any prepaid fees for any periods after the termination of the Agreement.

‍11.3           Outstanding Fees.  Termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any Fees accrued or payable to Provider prior to the effective date of termination or expiration of this Agreement.

‍11.4           Surviving Provisions.  The following provisions shall survive any termination or expiration of this Agreement: Sections 2, 3, 4.1, 4.3-4.6, 5-10, 11.3, 11.4, 

  1. GENERAL PROVISIONS.

12.1           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.

‍12.2           No Third-Party Beneficiaries.  Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.

‍12.3           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 Provider shall be addressed to the attention of the Legal Department.  Notices to Customer shall be addressed to Customer’s signatory on the Order Form unless otherwise designated below.

‍12.4           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 here in are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

‍12.5           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.

‍12.6           Assignment.  Neither party may assign any of its rights or obligations here under, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Not with standing the foregoing, each party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, 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.

‍12.7           Governing Law.  This Agreement shall be governed by the laws of the Province of British Columbia, 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 provincial and federal courts located in Vancouver, British Columbia, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.

‍12.8           Dispute Resolution.  Before initiating arbitration or other legal action against the other relating to a dispute here in, the parties agree to work in good faith to resolve disputes and claims arising out of this Agreement. If the dispute is not resolved within thirty (30) days of the commencement of informal efforts here under, the parties will attempt to settle it in good faith by mediation. To initiate the mediation a party must give notice in writing to the other party requesting mediation. A copy of the request should be sent to ADR Chambers. The mediation will take place in Vancouver, British Columbia and the language of the mediation will be English. The mediation shall be governed by and construed and take effect in accordance with the substantive law of the Province of British Columbia. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the parties may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (British Columbia), and arbitration proceedings shall take place in Vancouver, British Columbia before one (1) arbitrator. In the event the parties are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. Each party shall bear its own legal costs in connection with mediation and/or arbitration under this provision.

‍12.9           Force Majeure.  Neither party shall be responsible for its failure to perform its non-monetary obligations 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.

12.10         Export.  Customer 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 Customer shall comply with all export and import control regulations of such countries.  Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.

‍12.11         Entire Agreement.  This Agreement, including Order Forms constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.  To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and Order Form, the terms of the Order Form shall govern to the extent of inconsistency or conflict. Not with standing any language to the contrary there in, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.