8868体育

8868体育 Inc. (鈥�8868体育鈥�) owns certain software that it has developed and makes available to its customers in English as a service offering (the 鈥�8868体育 Platform鈥� or 鈥�Platform鈥�).

In connection with the use of the 8868体育 Platform (as defined below), you and/or your organization or corporation, including affiliates (collectively, the 鈥�Customer鈥�) hereby agree to the terms of service and conditions contained herein (collectively, the 鈥�Terms of Service鈥�).

BY ACCEPTING THESE TERMS OF SERVICE (THE 鈥淭ERMS OF SERVICE鈥�) BY SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE TERMS OF SERVICE, OR USING, OR ACCESSING THE SERVICE AFTER BEING MADE AWARE OF THESE TERMS OF BRIDGIT PLATFORM, CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ORDER FORM AND INCLUDING BRIDGIT鈥橲 PRIVACY POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN BRIDGIT AND THE CUSTOMER.

IF, AFTER READING THESE TERMS OF SERVICE, CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, CUSTOMER SHALL NOT USE, OR ACCESS THE BRIDGIT PLATFORM.

IF YOU ARE AN AGENT OR EMPLOYEE OF CUSTOMER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON CUSTOMER鈥橲 BEHALF AND TO BIND CUSTOMER, AND (II) CUSTOMER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.

INTERPRETATION

1.1 Definitions.  For the purposes of this Agreement, the following capitalized terms have the meanings set out below:

(a) 鈥�Agreement鈥� means the Order Form and these Terms of Service.

(b) 鈥�8868体育 Platform鈥� or 鈥�Platform鈥� means, collectively, 8868体育鈥檚 proprietary online, web-based platforms, including without limitation 8868体育 Bench鈩�, as may be amended or developed from time to time, and including any and all Enhancements and New Features.

(c) 鈥�Claim鈥� has the meaning ascribed in Section 11.1.

(d) 鈥�Confidential Information鈥� means the information of a Party, or of third parties to which such Party has a duty of confidentiality, of a confidential and proprietary nature (whether in written, electronic or oral form), whether such information is or is not marked or identified as confidential or proprietary, including without limitation all Intellectual Property, financial, business or technical information, marketing and financial plans and data. Confidential Information does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully; (ii) becomes publicly known without fault of the receiving party; (iii) is independently developed by the receiving party; (iv) is approved for release in writing by the disclosing party; or (v) is disclosed without restriction by the disclosing party to a third party.

(e) 鈥�Customer Data鈥� means data submitted by or for Customer or Customer Users or collected and processed by or for Customer using the 8868体育 Platform, including the data of and Personal Information belonging to Customer and Customer鈥檚 Users .

(f) 鈥�Customer User(s)鈥� means any employee or contractor of Customer using the 8868体育 Platform as a result of his, her or its affiliation with or connection to the Customer.

(g) 鈥�Documentation鈥� means the written or electronic program documentation, including user manuals, handbooks and other materials  that 8868体育 generally makes available describing the use, design, installation, operation and maintenance of the 8868体育 Platform  or in the delivery of the Services.

(h) 鈥�Enhancements鈥� means improvements and other changes intended to improve the performance of the 8868体育 Platform.

(i) 鈥�Fee鈥� means the Initial Term Fee and the Renewal Term Fee, as applicable.

(j) 鈥�Implementation Services鈥� has the meaning ascribed to it in Section 6.1.

(k) 鈥�Initial Term鈥� has the meaning ascribed to it in Section 12.1.

(l) 鈥�Initial Term Fee鈥� has the meaning ascribed in Section 4.1.

(m) 鈥�Intellectual Property鈥� includes without limitation any and all software (in object and source code form), inventions (whether or not patentable), trade secrets, ideas, techniques, processes, formulas, algorithms, schematics, research, development, software design and architecture, testing procedures, design and functional specifications, problem reports and performance information media content, distribution content, instructions, specifications, engineering designs, concepts, models, technology, patents, trademarks, trade secrets, and know-how.

(n) 鈥�Intellectual Property Rights鈥� means all rights in Intellectual Property, whether protectable by copyright, trademark, patent, industrial design or trade secret laws and other intellectual property rights under laws, including common law.

(o) 鈥�New Features鈥� means the addition of new functionality in the 8868体育 Platform upon the payment of additional fees by Customer.

(p) 鈥�Order Form鈥� means a document executed between 8868体育 and Customer, in respect of Customer鈥檚 purchase of a subscription to use the 8868体育 Platform and Services from 8868体育.

(q) 鈥�Personal Information鈥� means any information relating to or about an identifiable individual as defined under Privacy Laws.

(r) 鈥�Privacy Laws鈥� means laws relating to the collection, use, storage and disclosure of information about an identifiable individual, including but not limited to the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation, each as amended or superseded from time to time) applicable to the processing of Personal Information, and any other local, state, provincial, federal, or international laws relating to such activities.

(s) 鈥�Profile(s)鈥漨eans the profile(s) of Customer employees and contractors, excluding Customer Users, that are tracked in an Account.

(t) 鈥�Renewal Term鈥� has the meaning ascribed to it in Section 12.1.

(u) 鈥�Renewal Term Fee鈥� has the meaning ascribed to it in Section 4.6.

(v) 鈥�Services鈥� means the 8868体育 Platform as provided by 8868体育 to the Customer and Customer Users hereunder, including ancillary services available in connection with the 8868体育 Platform, such as Implementation Services, and Support Services.

(w) 鈥�Support Services鈥� has the meaning ascribed in Section 6.2.

(x) 鈥�Term鈥� means the Initial Term and all Renewal Terms, as applicable.

1.2 General Interpretation

(a) Number and Gender. In this Agreement, words importing the singular include the plural and vice versa, and words importing gender include all genders.

(b) Section Headings. The insertion of headings and the division of this Agreement into Sections are for convenience of reference only and will not affect the interpretation hereof.  The words 鈥渉ereof鈥�, 鈥渉ereunder鈥�, 鈥渉ereto鈥� and similar expressions refer to this Agreement and not to any particular Section or other portion of this Agreement.

(c) Extended Meaning. The use of (i) the terms 鈥渋ncluding鈥� or 鈥渋nclude鈥� mean 鈥渋ncluding, without limitation鈥� or 鈥渋nclude, without limitation鈥� respectively; (ii) the term 鈥淪ervices鈥� or 鈥渢he Services鈥� means 鈥淪ervices, or any part thereof鈥� or 鈥渢he Services, or any part thereof鈥�, as applicable; and (iii) a definition applies to other forms of the word.

(d) Currency. All references to money amounts herein, unless otherwise specified on the Order Form, will be in United States Dollars ($USD).

(e) Generality. No specific representation, warranty or covenant contained herein will limit the generality or applicability of a more general representation, warranty or covenant contained herein.  A breach of, or inaccuracy in, any representation, warranty or covenant will not be affected by the fact that any more general or less general representation, warranty or covenant was not also breached or inaccurate.

(f) Technical Terms. Technical terms used in this Agreement that are not defined in this Agreement may be defined in the Documentation or will have the generally accepted industry or technical meaning given to such terms.

ARTICLE 2

BRIDGIT PLATFORM

2.1 Rights of Access and Use. 8868体育 hereby grants to Customer a non-exclusive, non-sublicensable and non-transferable right in the territories of Canada, the United States, Australia and New Zealand (collectively, the 鈥�Territories鈥�): (i) access and use (and to permit Customer Users to access and use) the 8868体育 Platform; and (ii) access and use, and permit Customer Users to access and use the Documentation made available by 8868体育, all in accordance with the terms of this Agreement.

2.2 Restrictions. The Customer shall not, and shall ensure the Customer Users do not: (i) use 8868体育 Software for purposes other than in relation to the Order Form; (ii) reverse engineer or decompile, modify, translate, disassemble or revise the 8868体育 Platform or any part thereof, or create adaption, combinations or derivative works thereof; (iii) make accessible, sub-license or transfer 8868体育 Software to any third party; (iv) remove any proprietary notices, labels, or marks from the Platform or Documentation; (v) create any 鈥渓inks鈥� to or 鈥渇rame鈥� or 鈥渕irror鈥� of the Platform or any portion thereof; or (vi) use the Platform to create, collect, transmit, store, use or process any Customer Data that: (a) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (b) violates any applicable laws (including Privacy Laws) or infringes, violates or otherwise misappropriates the Intellection Property Rights or other rights of any third party; and (vii) engage, directly or indirectly, in the research, development, manufacturing, marketing, distribution, sale, lease or licensing of any product, using in any way whatsoever any 8868体育鈥檚 Confidential Information or Intellectual Property Rights in the 8868体育 Software or Services.

2.4 Reservation of Rights. 8868体育 and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other Intellectual Property Rights), in and to the Platform and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Platform and subject to all of the provisions of this Agreement.  Customer shall keep the Platform and Documentation free and clear of all liens, encumbrances and/or security interests.  Subject to the limited rights expressly granted in this Agreement, 8868体育 reserves all rights, title and interest in and to the Platform and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement, provided that Customer and its Customer Users shall retain all ownership, right, title and interest to the Customer Data.

2.5 Aggregated Data. Customer acknowledges and agrees that the Platform compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the Platform and for the creation of new products. All data collected, used, and disclosed by 8868体育 will be in aggregate, anonymized and/or de-identified form only and will not identify Customer, Customer Users, Customer Data, Personal Information, or any third parties utilizing the Platform.

ARTICLE 3

ACCOUNT ACTIVATION

3.1 Account. Customer is required to open an account with 8868体育 (an 鈥�Account鈥�) in order to use the Platform and track Profiles. During registration, a Customer User will be asked to provide Personal Information in order to create an Account on behalf of Customer. Customer shall ensure that such Account activation information is accurate and complete and that such information remains current throughout the Term. Customer is fully responsible for all activity that occurs in Customer鈥檚 Account, including for any actions taken by Customer Users.

3.2 Passwords. Customer is responsible for keeping all Account passwords secure. 8868体育 will not be liable for any loss or damage caused by or arising from a failure by Customer or Customer Users to maintain the security of the Customer鈥檚 Account and password.

3.3 Customer and Customer Users. Customer is also responsible for all activity in the Account and for Customer Data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with Customer鈥檚 Account by its Customer Users. Customer is responsible for its Customer Users鈥� compliance with this Agreement.  Customer shall:  (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform, and notify 8868体育 promptly of any such unauthorized access or use; and (b) use the Platform only in accordance with the Documentation and applicable laws and government regulations.

ARTICLE 4

FEES

4.1 Initial Term Fees. Customer shall pay 8868体育 the fees stipulated in the Order Form for the Services during the Initial Term (the 鈥�Initial Term Fee鈥�).

4.2 Invoicing and Payment. 8868体育 shall invoice the Customer in advance for the Fees and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with 8868体育.

4.3 Overdue Payments. Any payment not within thirty (30) days of receipt of invoice from 8868体育 may accrue, at 8868体育鈥檚 discretion, late charges at the rate of one and a half percent (1.5%) per month on any past due amount (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Customer will also be responsible for any costs incurred by 8868体育 in collecting any past due amount.

4.4 Taxes. The Fee does not include applicable taxes, levies, duties or similar governmental assessments of any nature, including sales, use, excise, goods and services, value added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, 鈥�Taxes鈥�). Customer is responsible for paying all Taxes associated with its purchases hereunder. For greater certainty, 8868体育 is solely responsible for taxes assessable based against its income, property and employees.

4.5 Profile Usage. If, during the Term, the number of Profiles in an Account exceeds more than fifteen percent (15%) of the actual Profiles paid for by Customer in the Order Form, 8868体育 reserves the right to immediately charge Customer the pro-rated subscription fees applicable for such additional Profiles.

4.6 Fee Increase. 8868体育 reserves the right to increase the Fees, to be effective on the next Renewal Term (the 鈥�Renewal Term Fee鈥�) and shall provide written notice to Customer at least thirty (30) days鈥� in advance of any such Fee increase. 

 ARTICLE 5

CUSTOMER RESPONSIBILITIES

5.1 Equipment. Customer is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Customer to access and use the Platform and for all expenses relating thereto. Customer agrees to access and use, and shall ensure that all Customer Users access and use, the Platform in accordance with any and all operating instructions or procedures that may be issued by 8868体育 from time to time.

5.2 Cooperation. Customer will provide 8868体育 all reasonable information, assistance, documentation, cooperation and updates as requested or required by 8868体育 to perform the Services.  8868体育 will not be liable for any failure to perform hereunder caused by the Customer鈥檚 failure to provide adequate, appropriate or correct information, assistance, documentation, cooperation or updates. Customer agrees to press mentions and authorizes 8868体育 to include the Customer鈥檚 name and logo on 8868体育鈥檚 website and/or other marketing collateral.

5.3 Users.  Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform, and notify 8868体育 promptly of any such unauthorized access or use; and (b) use the Service only in accordance with these Terms of Service, the Documentation and applicable laws and government regulations.

5.4 Feedback. Customer may provide reasonable feedback to 8868体育 including, but not limited to, suitability, problem reports, suggestions and other information with respect to the Platform (鈥淔eedback鈥�). Customer hereby grants to 8868体育 a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Platform, Documentation and any other 8868体育 products or services, or for any other purposes, any Feedback provided by Customer or its Customer Users.

ARTICLE 6

SERVICES AND SERVICE LEVELS

6.1 Implementation Services. 8868体育 will provide implementation assistance with respect to the 8868体育 Platform as further outlined in the Order Form (the 鈥�Implementation Services鈥�) which shall be provided on a one-time basis prior to any training provided by 8868体育 to Customer. Any additional implementation assistance or set-up, and any customization requested by Customer may be provided by 8868体育 to Customer in its sole discretion, the terms and costs of which shall be mutually agreed upon by the parties and incorporated into the Order Form.

6.2 Support Services. 8868体育 will provide support and maintenance services with respect to the 8868体育 Platform (the 鈥�Support Services鈥�) in accordance with the terms and service levels set out in the attached Schedule A. Support Services are included in the Fees payable by the Customer to 8868体育.

6.3 Enhancements and New Features. From time to time, 8868体育 may make Enhancements to the 8868体育 Platform at its sole discretion or add New Features to the 8868体育 Platform upon the payment of additional fees by Customer. Customer will be given the option to upgrade and pay an additional fee for New Features.

ARTICLE 7

CONFIDENTIALITY

7.1 Obligation of Confidentiality. Each party agrees: (i) to take all measures necessary to keep the Confidential Information of the other party confidential; and (ii) to not release, disclose, divulge or otherwise make available, directly or indirectly, any of the Confidential Information of the other party to any third person except:

(a) employees of the receiving party who need to use the Confidential Information for the purposes of this Agreement;

(b) necessary subcontractors, representatives or legal and professional advisors of the receiving party; or

(c) to the extent required pursuant to an order of a court of competent jurisdiction or as otherwise required by law, provided that the disclosing party is notified forthwith of any such requirement, and provided that reasonable efforts are made by the receiving party to maintain the confidentiality of the Confidential Information in any required disclosure, and provided that the receiving party shall, if possible, provide the disclosing party an opportunity to object to the disclosure.

7.2 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).

7.3 Right to Injunctive Relief. Each Party acknowledges that monetary damages may not be a sufficient remedy for a breach of its obligations and that the other Party will be entitled, without waiving any of its other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. 

ARTICLE 8

CUSTOMER DATA AND PERSONAL INFORMATION

8.1 Customer Data. As between 8868体育 and Customer, Customer exclusively owns and shall at all times retain all ownership, right, title and interest in and to the Customer Data. 8868体育 does not acquire any rights, title or interest whatsoever, express or implied, in any of the Customer Data. Customer hereby authorizes 8868体育 to use Customer Data as required to provide the Services in accordance with the terms hereof and in accordance with the applicable Privacy Laws.

8.2 Technical and Organizational Safeguards. In connection with the provision of the Services, 8868体育 will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Platform and Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by 8868体育 personnel except (a) to provide the Platform and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, (c) as expressly permitted in writing by Customer, or (d) as allowed under applicable Privacy Laws. 8868体育 shall, in connection with the provision of the Platform, comply with Privacy Laws, as well as 8868体育鈥檚 Privacy Policy.

8.3 Customer Data Portability and Deletion. Upon request by Customer made during the Term or within thirty (30) days after the effective date of termination of this Agreement, 8868体育 will delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited.

8.4 Customer鈥檚 Obligations Regarding Personal Information. Customer鈥檚 instructions to 8868体育 for the processing of Personal Information shall comply with Privacy Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired the Personal Information. Customer hereby represents and warrants to, and covenants with 8868体育 that Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable Privacy Laws, to enable 8868体育 to provide the Platform, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to 8868体育 and to or from all applicable third parties.

8.5 8868体育鈥檚 Processing of Personal Information. 8868体育 shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. 8868体育 shall only process Personal Information on behalf of and in accordance with applicable Privacy Laws for the following purposes: (a) processing in accordance with the Agreement; (b) processing initiated by Customer鈥檚 Users or customers in their use of the Platform; and (c) processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement and applicable Privacy Laws. 8868体育 shall ensure that its personnel engaged in the processing of Personal Information: (x) are informed of the confidential nature of the Personal Information, (y) have received appropriate training on their responsibilities, and (z) are under contractual or statutory obligations to maintain the confidentiality of Customer Data.  8868体育 shall take commercially reasonable steps to ensure the reliability of any 8868体育 personnel engaged in the Processing of Personal Information.

8.6 Messaging. If using the messaging functionality, Customer represents and warrants that it has and will continue to comply with all Privacy Laws applicable to email, SMS, or text campaigns, that Customer has obtained all appropriate and required consents to send such messages, and that Customer鈥檚 deployment of any such email, SMS or campaigns comply with all applicable Privacy Laws. 8868体育 shall have no responsibility or liability to Customer relating to Customer鈥檚 compliance with Privacy Laws applicable to any such messaging, nor will Bridit be responsible for any type of record creation or maintenance of records in relation to information sent by Customer to its Customer鈥檚 Users through use of the messaging functionality. 8868体育 will provide opt-out functionality and link our privacy policy in all messages sent to Customer鈥檚 Users.

ARTICLE 9

LIMITED WARRANTIES AND DISCLAIMERS

9.1 8868体育鈥檚 Platform Warranty. 8868体育 hereby represents and warrants to Customer that: (i) During the Term, the Platform will perform materially in accordance with the Documentation; and (iii) the Platform will not contain any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

9.2 Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE PLATFORM IS PROVIDED 鈥淎S IS鈥� AND 鈥淎S AVAILABLE鈥� AND BRIDGIT MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE PLATFORM; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM BRIDGIT VIA THE PLATFORM. BRIDGIT DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL MEET ANY OR ALL OF CUSTOMER鈥橲 PARTICULAR REQUIREMENTS, THAT THE PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE PLATFORM CAN BE FOUND IN ORDER TO BE CORRECTED.

ARTICLE 10

LIMITATION OF LIABILITY

10.1 Exclusion of Indirect and Consequential Damages.  SUBJECT TO SECTION 10.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY 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).

10.2   Limitation of Liability. SUBJECT TO SECTION 10.3 HEREOF, IN NO EVENT SHALL EITHER PARTY鈥橲 MAXIMUM, CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.

10.3   Certain Damages Not Excluded or Limited.  NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY鈥橲 LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY鈥橲 BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS , (III) DAMAGES ARISING FROM INFRINGEMENT CLAIMS (AS DEFINED HEREIN); (IV) ANY CLAIMS FOR NON-PAYMENT, (V) GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.

ARTICLE 11

INDEMNIFICATION

11.1 Indemnification by 8868体育. 8868体育 agrees to defend, indemnify and hold harmless the Customer against any claim, suit, demand or action (a 鈥�Claim鈥�) demands, suits or proceedings made or brought against Customer by a third party alleging that Customer鈥檚 use or the Customer Users鈥� use of the Platform as contemplated hereunder infringes the intellectual property rights of, or has otherwise harmed, a third party (each, an 鈥淚nfringement Claim鈥�) ; provided, however, that: Customer will (i) provide 8868体育 with prompt written notice of such Claim; (ii) give 8868体育 sole control of the defense and settlement of the Infringement Claim (provided that 8868体育 may not settle or defend any Infringement Claim unless it conditionally releases Customer of all liability); and (ii) provide to 8868体育, at 8868体育鈥檚 cost, all reasonable assistance and information. The foregoing will not apply to the extent that the Infringement Claim arises from Customer鈥檚 use of the Platform in a manner that was not intended or not in accordance with this Agreement.

11.2 Other Remedies. If (a) 8868体育 becomes aware of an actual or potential Infringement Claim, or (b) Customer provides 8868体育 with notice of an actual or potential Infringement Claim, 8868体育 may (or in the case of an injunction against Customer, shall), at 8868体育鈥檚 sole option and determination: (i) procure for the Customer the right to continue using the Platform; (ii) replace or modify the infringing component so that it no longer infringes upon such Intellectual Property Rights; or (iii) where (i) or (ii) are not practical in the sole discretion of 8868体育, terminate the rights granted to Customer herein to access and use the Platform.  If Customer is prevented from using the Platform or terminated pursuant to this Section 11.2, then 8868体育 shall provide Customer with a pro rata refund of any Fees already paid by Customer for those periods during which it does not have access to Platform.

11.3 Exclusive Remedy. Sections 10.3, 11.1 and 11.2 set forth the exclusive and entire remedy of Customer against 8868体育 with respect to the indemnification of any third-party Claims.

11.4 Indemnification by Customer. Customer agrees to defend, indemnify and hold harmless 8868体育, its employees, officers, directors, shareholders, agents and affiliates from and against any Claims, demands, suits or proceedings made or brought against 8868体育 by a third party (a) alleging that Customer鈥檚 or the Customer Users鈥� use of the Platform as contemplated hereunder infringes the intellectual property rights of, or has otherwise harmed, a third party, but only to the extent the Claim, demand, suit, or proceeding arises from Customer鈥檚 use of the Platform in a manner that was not intended or not in accordance with this Agreement; (b) based on a breach of any Privacy Laws or a breach of this Agreement by Customer or its employees, contractors, or agents; or (c) caused by any negligent act or omission of Customer or its employees, contractors, or agents (each a 鈥淐ustomer Indemnified Claim鈥�); provided, however, that 8868体育 will (i) provide Customer with prompt written notice of the Customer Indemnified Claim; (ii) give Customer sole control of the defense and settlement of the Customer Indemnified Claim (provided that Customer may not settle or defend any Customer Indemnified Claim unless it conditionally releases 8868体育 of all liability); and (iii) provides to Customer, at Customer鈥檚 cost, all reasonable assistance and information.

ARTICLE 12

TERM AND TERMINATION

12.1 Term, Renewal. This Agreement will be effective on the date of the initial Order Form and will continue for the period outlined in the Order Form (the 鈥�Initial Term鈥�), or until otherwise terminated by either part as provided below. Unless otherwise agreed upon in the applicable Order Form, an Order Form shall automatically renew for additional periods of one (1) year (each, a 鈥�Renewal Term鈥�) at the Renewal Term Fee, unless Customer gives Company written notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term.

12.2 Termination for Cause. Either party may terminate this Agreement for cause as follows: (i) upon fifteen (15) days鈥� written notice to the other party of a material breach if such breach remains uncured or the breaching party has failed to take diligent steps to commence cure of the breach within five (5) days following written notice from the non-breaching party, 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.

12.3 Payment on Termination. Customer shall be responsible to pay the Fee up to the effective date of termination. If this Agreement is terminated mid-month, the Fee shall be prorated. . In no event will termination relieve Customer of its obligation to pay any Fees payable to 8868体育 for the period prior to the effective date of termination. Customer shall pay any and all other amounts that may be owing to 8868体育 under this Agreement forthwith on receipt of final invoice from 8868体育.

12.4 Effects of Termination or Expiration. In the event of termination or expiration of this Agreement, on the termination date or expiration date, as applicable, (i) the rights  granted to Customer and the provision of the Services will terminate and expire immediately; (ii) Customer will immediately cease to access the Platform and shall notify Customer Users to cease to access the Platform under the terms of this Agreement; and (iii) Customer will immediately return or destroy, at 8868体育鈥檚 sole discretion, all Documentation and any other materials containing 8868体育鈥檚 Confidential Information and, at the request of 8868体育, confirm in writing that such information has been returned or destroyed.

12.5 Survival. Any provision of this Agreement which by its nature would survive the termination or expiration of this Agreement, shall survive termination or expiry of this Agreement and will remain in full force and effect thereafter.

ARTICLE 13

MISCELLANEOUS

13.1 Force Majeure. Neither party will be deemed to be in default of any provision of this Agreement (other than Customer鈥檚 obligation to pay amounts due to 8868体育 hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including, but not limited to, fire, flood, other natural disasters, war, labour difficulties, interruption of transit and power telecommunication outages, accident, explosion, civil commotion and acts of any governmental authority; provided, however, that the party so affected will give prompt notice thereof to the other party.

13.2 Governing Law. This Agreement and the rights and obligations of the Parties under this Agreement, for Canadian based Customers are governed by, and are to be construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario, without regard to its conflict of law principles. For USA based Customers it shall be governed by, and are to be construed and interpreted in accordance with the laws of the State of Delaware and the federal laws of USA applicable in the State of Delaware, without regard to its conflict of law principles. The Parties agree that the courts of such jurisdiction constitute a convenient forum for any litigation and both parties attorn and submit to the non-exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded and does not apply to this Agreement

13.3 Dispute Resolution.

(a) Negotiation. The parties will negotiate in good faith and use reasonable efforts to settle any dispute, controversy or claim arising from or related to this Agreement.  If the Parties fail to reach a mutually satisfactory resolution within thirty (30) days from the date of notice given of such dispute, then the dispute shall be subject to arbitration in accordance with the Arbitration Act (Ontario) for Canadian based Customers and the arbitration laws of Delaware for US based Customers..

(b) Interim Relief. Notwithstanding anything herein to the contrary, nothing in this Section 13.3 will preclude either party from seeking interim or provisional relief in the courts in the jurisdiction designated in Section 13.2, including a temporary restraining order, preliminary injunction or other interim equitable relief.  This Section 13.3(b) will be specifically enforceable.

13.4 Non-Assignment. The Customer may not assign this Agreement or any rights or obligations hereunder, in whole or in part, without the prior written consent of 8868体育 and any attempt to assign this Agreement without such consent will be deemed null and void. This Agreement will enure to the benefit of and be enforceable by and against the parties and their successors and permitted assigns, and if applicable, Customer鈥檚 personal representative or estate trustee.

13.5 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between 8868体育 and Customer with respect to the subject matter hereof, superseding any other agreements or discussions, oral or written.  In the event of a contradiction between the body of this Agreement and the Order Form, the provisions contained in the Order Form will prevail.  No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party.

13.6 Independent Contractors.  The parties hereto are and will remain independent contractors. Nothing herein will be deemed to establish a partnership, joint venture or agency relationship between the parties.  Neither party will have the right to obligate or bind the other party in any manner to any third party.

13.7 Severability. The invalidity or unenforceability of any provision hereof will in no way affect the validity or enforceability of any other provision. Any provision declared invalid or unenforceable by a court of competent jurisdiction will be deemed to be automatically amended and replaced by a valid and enforceable provision that accomplishes as far as possible the purpose and intent of such original provision, and the remaining terms and conditions of this Agreement will remain in full force and effect.

13.8 Waiver. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof solely with respect to such party, but no such waiver will be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. The waiver by either party of any right hereunder or of the failure to perform or of a breach by the other party will not be deemed a waiver of any other right hereunder or of any other breach or failure by such other party whether of a similar nature or otherwise.

13.9 Notice. Any notice or other communication required or permitted hereunder will be in writing and shall be sufficiently given if delivered by hand or sent by registered mail, courier, email or facsimile addressed to the other party to such other person as designated by a party or address as the parties may from time-to-time designate in writing delivered pursuant to this notice provision.  Any such notices, requests, demands or other communications shall be deemed received and effective:  (i) upon delivery, if delivered personally; (ii) on the date of receipt of facsimile, mail, email or courier, where a confirmation of receipt is provided for such facsimile, mail, email or  courier; or (iii) on the 5th Business Day after demonstrable proof of sending by facsimile, mail, email or  courier, where confirmation of receipt is not provided for such facsimile, mail, email or  courier. Legal notices or other communication required hereunder sent by email to 8868体育 shall be sent to: [email protected].

SCHEDULE A

SERVICE LEVELS

UPTIME

8868体育 will use commercially reasonable efforts to achieve a Service Availability (as defined below) of at least 99% during each calendar month. If 8868体育 fails to meet such service commitment it will report the remedial steps taken to address such service commitment failure. . 鈥淪ervice Availability鈥� means the number of minutes in a month that the key components of the Platform are operational as a percentage of the total number of minutes in such month, excluding downtime resulting from (a) scheduled maintenance, (b) events of force majeure, (c) malicious attacks on the Platform, (d) issues associated with Customer鈥檚 network or equipment, or (e) inability to deliver the Platform because of acts or omissions of Customer. 8868体育 reserves the right to take the Platform offline for scheduled maintenance for which Customer has been provided reasonable notice and 8868体育 reserves the right to change its maintenance window upon prior notice to Customer. Notwithstanding the foregoing, full functionality of the Platform is only guaranteed in Canada, the United States, the United Kingdom, Australia and New Zealand (collectively, the 鈥�Territories鈥�). Any use of the Platform outside of the Territories is subject to availability.

SEVERITY DEFINITIONS

8868体育 will address reported incidents in accordance with the following provisions:

鈼�  Level 1 Severity is any issue that directly affects the Customer鈥檚 ability (or a Customer User) to use the 8868体育 Platform.

鈼�  Level 2 Severity is any issue that interrupts the normal course of business of a Customer (or a Customer User) but does not directly impact the ability to use the 8868体育 Platform.

鈼�  Level 3 Severity is any issue that does not impact business processes or the ability to use the 8868体育 Platform.

RESOLUTION TIMES

* Resolution refers to the ability to circumvent the problem. This may be done by fixing a defect and releasing new code or by online/offline workarounds until the problem is fixed.

COMMUNICATION

All issues will be reported via 8868体育鈥檚 Support Centre.  Account login credentials will be provided to Customer upon execution of an Order Form.