SERVICES SUBSCRIPTION AGREEMENT
This services subscription agreement (this "Agreement"), is entered into by Localyyz Inc., a corporation organized under the laws of the Province of Ontario having a place of business at [ADDRESS] ("Provider") and [NAME OF CUSTOMER], a [JURISDICTION OF INCORPORATION/FORMATION] [TYPE OF ENTITY] having a place of business at [ADDRESS] ("Customer", and together with Provider, the "Parties", and each, a "Party").
Background: Customer wishes to procure from Provider the software services described herein, and Provider wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.
The parties therefore agree as follows:
- 1.1Definitions. Capitalized terms used in this Agreement will have the meaning provided to them in Schedule 1.1.
- 1.2Extended Meanings. For purposes of this Agreement: (a) the words "include", "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein", "hereof", "hereby", "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders.
- 1.3References. Unless the context otherwise requires, references in this Agreement: (a) to sections and schedules mean the sections of, and schedules attached to, this Agreement; (b) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (c) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder.
- 1.4Contra Proferentem Rule. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
- 1.5Headings & Summary. The headings in this Agreement and summary appearing in the right hand margin of this Agreement are for reference only and will not affect the interpretation of this Agreement.
- 1.6Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- 1.7Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the province of Ontario and the federal laws of Canada applicable in that province, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than those of the province of Ontario.
Section 1 explains how this agreement is to be interpreted.
1.1 use of capitalized terms which have defined meanings set forth in Schedule 1.1.
1.2 & 1.3 explanation of how certain expressions and references are to be interpreted.
1.4 Confirmation that ambiguities in the agreement will not be interpreted against Localyyz’ interests.
1.5 The Section headings and this Summary are not to be considered when interpreting this Agreement.
1.6 This Agreement and the Schedules are the only materials that will be considered when determining the scope of our arrangement. Any other document or oral statement made before or after signature of this Agreement will be ignored. This Agreement replaces any prior agreement between us relating to our services.
1.7 This Agreement will be interpreted according to the laws of the province of Ontario.
- 2.2Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
- Provider has and will retain sole control over the hosting, operation, provision, management and maintenance of the Services and Provider Materials, including the: (i) Provider Systems; (ii) selection, deployment, modification and replacement of the Platform; and (iii) performance of Service maintenance, upgrades, corrections and repairs; and
- Customer has and will retain sole control over the operation, management and maintenance of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Hosted Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; (iii) conclusions, decisions or actions based on such use; and (iv) any transactions initiated, completed or otherwise fulfilled through use of the Customer Systems.
- 2.3Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider's services to its customers, (ii) the competitive strength of or market for Provider's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.
Section 2 describes the services to be provided.
2.1 The services we will provide are described in Schedule 2.1. Such services will be provided through the Localyyz platform. We will endeavour to keep the platform operational but there may be situations where the platform may go down or otherwise not be fully functional or where we may suspend or terminate your access to the service.
2.2 We are responsible for the operation of the Localyyz platform. You are solely responsible for the operation of your own systems used to access the Localyyz platform or which are accessed by to the Localyyz platform to provide services.
2.3 We may change the services provided on the Localyyz platform in certain circumstances.
2.4 We may suspend or terminate your access to the Localyyz services if compelled to do so by any governmental or court order or if this agreement is not being complied with or if the services are being used for any improper purpose.
3. AUTHORIZATION AND CUSTOMER RESTRICTIONS.
- 3.1Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, solely in the Territory and solely for its internal business operations, the Hosted Services and such Provider Materials as Provider may supply or make available to Customer solely for its internal business operations by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement and Provider's terms and conditions of use, a current copy of which is available at www.localyyz.com/ (or a successor website address). This authorization is non-exclusive and is non-transferable.
- 3.3Subscription Levels and Pricing Plans. Schedule 2.1 sets forth Fees for designated categories of Hosted Service (each a "Subscription Category") and usage levels (each, a “Pricing Plan”), beginning with the Fees payable by Customer for the Subscription Category and Pricing Plan initially selected by Customer as of the Effective Date, as indicated in Schedule 2.1. A selected Subscription Category and Pricing Plan can be upgraded by Customer by way of written notice to Provider, or by purchasing the desired plan directly from www.localyyz.com/. For instances in which written notice is received, upgrades will be implemented by Provider within three Business Days of receiving any such notice. Upgrading a Subscription Category and/or Pricing Plan does not extend the Initial Term or then current Renewal Term. The increase in terms of the Fees listed in Section IV above will be prorated for the remaining period of time during the Initial Term or the then current Renewal Term and shall be paid by Customer prior to the upgrade taking place. Full Fees will apply for any subsequent subscription year (subject to any Fee increase permitted pursuant to the Agreement).
Section 3 describes your authorization to use the Localyyz platform as well as restrictions that apply to such use.
3.2 You may not allow anyone outside your organization to use your accounts or your subscription to the Localyyz services. You may not try to recreate the Localyyz service. You must not try to gain unauthorized access to private areas of the Localyyz platform or try to circumvent security measures or try to hinder operation of the localyyz platform. You must respect our intellectual property rights and those of third parties. You must not engage in other forms of improper conduct.
3.3 We may offer more than one subscription package. The subscription package that you have chosen is set out in Schedule 2.1 which also includes pricing for such package.
4. CUSTOMER OBLIGATIONS.
- 4.1Customer Systems and Cooperation. Customer shall at all times during the Term: (i) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; and (ii) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
- 4.2Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement or attributable in whole or in part to Customer Systems or Customer Goods (each, a "Customer Failure").
- 4.3Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.2, Customer shall, and shall cause its Authorized Users to, immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (ii) notify Provider of any such actual or threatened activity.
- 4.4Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA
Section 4 describes your obligations in regard to your use of the Localyyz platform and services.
4.1 You must ensure your own systems meet minimum system requirements. Where reasonably required, you must cooperate with us and provide reasonable assistance.
4.2 We are not responsible for any failures or shortcomings that are wholly or partially attributable to you, your computer systems or your products.
4.3 You must ensure that your employees and other representatives comply with all rules & requirements regarding the Localyyz platform. You must advise us of any improper use of the Localyyz platform or other violation that comes to your attention and take steps to stop violations and mitigate the effects thereof.
4.4 You are solely responsible for backing up any data that you may provide to us.
- 5.1Provider Systems and Security Obligations. Provider will employ security measures in accordance with Provider's data security policy as amended from time to time.
- 5.2Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Hosted Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
- 5.3Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
Section 5 describes security measures relating to our systems and yours as well as you safeguarding Localyyz account and password information.
6. FEES; PAYMENT TERMS.
- 6.1Fees. Customer shall pay Provider the annual fees set forth in Schedule 2.1 ("Fees") in accordance with this Section 6. Provider may increase Fees after the Initial Term by providing written notice to Customer at least 25 days prior to the commencement of the coming Renewal Term, and Schedule 2.1 will be deemed amended accordingly.
- 6.2Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of all applicable Taxes (including HST and provincial sales tax). Each Party will be responsible for the payment of and will pay any applicable taxes, duties and levies levied on that Party from time to time in relation to this Agreement.
- 6.3Payment. All Fees are payable in advance of commencement of delivery of the Services for the relevant subscription year. Customer shall pay all Fees prior to such date and shall make all such payments in USD by electronic payment made through the Authorized User’s eCommerce platform or through www.localyyz.com/. Customer shall make payments to the address or account specified in Schedule 2.1 or such other address or account as Provider may specify in writing from time to time.
- 6.4Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
- Provider may charge interest on the past due amount at the rate of rate of 4% per annum above the Bank of Canada’s base rate from time to time or, if lower, the highest rate permitted under applicable Law;
- Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including legal fees, court costs and collection agency fees; and
- if such failure continues for 15 days following written notice thereof or if there are two (2) or more failures to make timely payment during the course of any six (6) month period, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
- 6.5No Deductions or Set-offs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
Section 6 describes the fees that you must pay for your Localyyz subscription.
6.1 Your annual subscription fee is set forth in Schedule 2.1. We may increase such fee for any subsequent subscription year.
6.2 Fees shown in Schedule 2.1 do not include applicable taxes. You are responsible for paying these.
6.3 Annual subscription fees are payable in advance of the commencement of the subscription year.
6.4 Interest will be payable on late payments. You are also responsible for collection costs for late payments. We may suspend your access to the Localyyz platform for non-payment or recurring non-payment.
6.5 You must pay all amounts owed to us without deducting any amounts that we may owe you.
7. INTELLECTUAL PROPERTY RIGHTS.
- 7.1Reservation of Rights. All right, title and interest in and to the Services, Provider Materials and Third Party Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third Party Materials. Customer acknowledges and agrees that it has no right, license or authorization with respect to any of the Services, Provider Materials or Third Party Materials (including any Intellectual Property Rights therein) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.2 All other rights in and to the Services, Provider Materials and Third Party Materials are expressly reserved by Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
- 7.2Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 7.3.
- 7.3Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
Section 7 deals with our intellectual property rights in the Localyyz platform and its content.
7.1 We own all rights in and to the Localyyz platform. The only rights you obtain to the Localyyz platform is the limited right to use it as described in the agreement. We own all data generated through use of the Localyyz platform.
7.2 You own your own data that you provide to us (subject to our right to own data that arises from the use of such data through the Localyyz platform).
7.3 We are free to use your data in conjunction with the agreement.
- 8.1Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 8.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations (including, processes, methods, and methodologies), plans, strategies, customers, finances, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the financial terms of this Agreement are the Confidential Information of each of the parties.
- 8.2Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:
- was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement;
- was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement;
- was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
- the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without access or reference to, or use of any Confidential Information.
- 8.3Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
- not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
- except as may be permitted by and subject to its compliance with Section 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 8.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8.3;
- safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
- ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 8.
- 8.4Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3.
Section 8. Relates to your confidential information and ours.
8.1 The confidentiality obligations extend to any confidential and proprietary information.
8.2 Certain types of information are excluded from the application of confidentiality obligations.
8.3 We must each safeguard the confidential information of the other and may only use such confidential information in conjunction with the agreement.
8.4 A party may disclose confidential information of the other where legally compelled to do so. It must promptly advise the other of the foregoing, however.
9. TERM AND TERMINATION.
- 9.1Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of this Agreement's express provisions, will continue in effect for a period of one year from such date (the "Initial Term"). This Agreement will automatically renew for successive one year terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least two days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").
- 9.2Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
- Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than fifteen days after Provider's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.2 (Use Limitations and Restrictions), or Section 8 (Confidentiality);
- either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
- either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) fails to pay its debts generally as they become due or otherwise acknowledges its insolvency; (ii) ceases to carry on business in the ordinary course; (iii) makes a general assignment for the benefit of its creditors; (iv) commences or institutes any application, proceeding or other action under any Law relating to bankruptcy, insolvency, winding-up, reorganization, administration, plans of arrangement, relief or protection of debtors, compromise of debts or similar Laws, seeking: (A) to have an order for relief entered with respect to it; (B) to adjudicate it as bankrupt or insolvent; (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, compromise, arrangement, stay of proceedings of creditors generally, or other relief with respect to it or its assets or debts; or (D) appointment of a receiver, interim receiver, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets.
9.3Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
- all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
- Provider shall immediately cease all use of any Customer Data or Customer's Confidential Information and: (i) promptly return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from the Provider Systems, provided that, for clarity, Provider's obligations under this Section 9.3(b) do not apply to any Resultant Data;
- Customer shall immediately cease all use of any Services or Provider Materials and: (i) promptly return to Provider, or at Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider's Confidential Information; and (ii) permanently erase all Provider Materials and Provider's Confidential Information from all computer systems Customer directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 9.3(c);
- notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information; and (ii) Provider may retain Customer Data; (iii) Customer may retain Provider Materials, in the case of each of subclause (i), (ii) and (iii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 9.3(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
- Provider may disable all Customer and Authorized User access to the Hosted Services and Provider Materials;
- if Customer terminates this Agreement pursuant to Section 9.2(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination or any accrued Service Credits, whichever amount is higher; and
- if Provider terminates this Agreement pursuant to Section 9.2(a) or Section 9.2(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term (if any) will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Provider's invoice therefor.
- 9.4Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.2, Section 7, Section 8, Section 9.3, this Section 9.4, Section 10, Section 11, Section 12 and Section 14.
Section 9 relates to the duration of the agreement and its early termination.
9.1 The agreement initially covers a one year subscription. The subscription will automatically be renewed for successive one year subscriptions unless you or we notify the other of the contrary at least 2 days in advance.
9.2 We may terminate the agreement if you do not pay on time. Either party may terminate if the other breaches and fails to remedy such breach within 30 days of receiving notice. Either party may terminate if the other becomes insolvent or becomes the subject in bankruptcy or debt restructuring proceedings that are not dismissed.
9.3 Termination of the agreement or expiration of the subscription means that you can no longer access or use the Localyyz platform, services and any materials that we may have provided you. If you terminate because we breached our obligations, we will provide you a refund of the unused portion of the annual subscription fee that you paid for the current subscription year or any accrued service credits.
Termination also requires that each party returns the confidential information of the other except for certain limited purposes but subject to continued confidential treatment of such information.
Termination by us for any breach also allows to accelerate any payment obligation (assuming that there is one) regardless of the fact that such payment would only have been required at a later date during the current subscription period.
9.4 Certain obligations survive termination/expiration, including restrictions re improper conduct in regard to the Localyyz platform and content, Localyyz’s ownership of its intellectual property and all other IP rights, confidentiality obligations, warranties and related remedies and disclaimers, indemnification obligations, and limitations and exclusions of liability.
- Each party warrants that it shall comply with all Laws applicable to it related to data protection and privacy, international communications and the transmission of technical or personal data (including in regard to the personal information of Consumers).
- Provider warrants that (i) the Hosted Services shall perform materially in accordance with the Documentation; (ii) the functionality of the Hosted Services will not be materially decreased during the Term; and (iii) it will take reasonable measures to prevent the introduction of any Harmful Code into the Hosted Services.
- 10.2Warranty Remedies. In the event of a breach of the warranty set forth in subparagraphs 10.1(b)(i) and 10.1(b)(ii):
The remedies set forth in this Section 10.2 shall be Customer’s sole remedy and Provider’s sole liability for breach of these warranties unless the breach of warranty constitutes a material breach of the Agreement in which case the Customer may also elect to terminate this Agreement in accordance with Section 9.2.
- Provider shall use commercially reasonable efforts to correct the non-conforming Service at no additional charge to Customer, or
- in the event Provider is unable to correct such deficiencies after good-faith efforts, Provider shall refund Customer amounts paid that are attributable to the defective service from the date Provider received such notice. Customer shall use reasonable efforts to notify Provider in writing within thirty (30) days of identifying a deficiency, but Customer’s failure to notify Provider within such thirty (30) day period shall not affect Customer’s right to receive warranty remedies unless Provider is somehow unable, or impaired in its ability to, correct the deficiency due to Customer’s failure to notify Provider within the thirty (30) day period.
- Notice of breaches of the warranty in subparagraph 10.1(b)(i) shall be made through Provider’s then-current error reporting system; notices of breaches of any other warranty shall be made in writing to Provider in accordance with the Notice provisions of this Agreement.
- 10.3DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS, AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER THIS AGREEMENT, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR ERROR, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, LEGAL (INCLUDING, WITHOUT LIMITATION, WHETHER THE PROMOTION, MARKETING, OFFER OR SALE OF CUSTOMER GOODS THROUGH THE SERVICE IS LEGAL), FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS. PROVIDER IS NOT RESPONSIBLE FOR ANY TRANSACTION OR PROPOSED TRANSACTION WITH ANY THIRD PARTY CONDUCTED IN CONJUNCTION WITH THE SERVICE. LOCALYYZ DOES NOT ENDORSE, RECOMMEND, GUARANTEE OR PROVIDE ANY ASSURANCE WHATSOEVER WITH RESPECT TO ANY THIRD PARTY PURCHASER (OR PROPOSED PURCHASE) OF CUSTOMER GOODS, OR ANY STATEMENT OR COMMUNICATION FROM ANY THIRD PARTY.
Section 10 sets out the warranties, remedies for any breach of a warranty and a disclaimer regarding warranties not specifically included in Section 10.
10.1 Both of us must comply with applicable privacy laws. It also requires that the Localyyz generally conform to our documentation and that we take reasonable steps to prevent malware from affecting the Localyyz platform.
10.2 We will try to remedy any breach of warranty but if we fail to use reasonable efforts to do so, you may terminate.
10.3 There are no warranties or other promises / assurances other than those stated in s. 10.1. Anything else is excluded and cannot be expected from us.
- 11.1Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer and Customer's officers, directors, employees and agents, (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Customer Indemnitee) alleging that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a Canadian Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (i) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by Provider; (ii) modification of the Services or Provider Materials other than: (A) by or on behalf of Provider; or (B) with Provider's written approval in accordance with Provider's written specification; or (iii) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider.
- 11.2Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its subcontractors and Affiliates, and each of its and their respective officers, directors, employees, and agents (each, a "Provider Indemnitee") from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arises out of or relates to any: (i) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement; (ii) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider; (iii) Customer Goods or Customer Systems; or (iv) wrongful conduct of any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with the use of the Hosted Services including, any breach of the .
- 11.3Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- 11.4Mitigation. If any of the Services or Provider Materials are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement; (ii) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or (iii) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof.
THIS SECTION 11 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
Section 11 provides an obligation by each party to make the other whole in certain circumstances.
11.1 We will defend you against any third party claim that your use of the Localyyz platform infringes their IP rights (subject to a few exceptions and conditions).
11.2 You will defend us against any third party claim relating to our receipt and use of your own systems, relating to the data or materials that you provide us or relating to the sale of your goods through the Localyyz platform.
11.3 For a party to benefit from s. 11.1 or s. 11.2 it must follow the procedure outlined here. This includes providing prompt notice, handing over control of the defence and settlement of the lawsuit and cooperating.
11.4 We can try to avoid or mitigate the effect of an IP infringement claim regarding the Localyyz platform and materials. This may include obtaining required licenses, making modifications to the Localyyz platform and materials or terminating the agreement in regard to all or the affected portions of the Localyyz platform and materials.
Section 11 provides your exclusive rights and our sole responsibility in regard to any IP infringement claim.
12. LIMITATIONS OF LIABILITY.
- 12.1EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SCHEDULE 2.1, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- 12.2CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER TO PROVIDER FOR THE HOSTED SERVICES DURING THE IMMEDIATELY PRECEDING 12 MONTH PERIOD. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Section 12 prevents you from recovering certain types of losses as well as places a cap on those types of losses that can be recovered from us.
12.1 In the event we breach our obligations, you can only recover reasonable out-of-pocket losses that are directly tied to such breach up to an amount that does not exceed the subscription fees that you paid us over the course of the preceding 12 months.
13. FORCE MAJEURE.
- 13.1No Breach or Default. In no event will Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including: (i) acts of God; (ii) flood, fire, earthquake or explosion; (iii) war, terrorism, invasion, riot or other civil unrest; (iv) actions, embargoes or blockades in effect on or after the date of this Agreement; (v) national or regional emergency; (vi) strikes, labor stoppages or slowdowns or other industrial disturbances; (vii) passage of Law or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown; or (viii) national or regional shortage of adequate power or telecommunications or transportation facilities; or (ix) any other event which is beyond the reasonable control of such party (each of the foregoing, a "Force Majeure Event").
- 13.2Provider Obligations. If Supplier is affected by a Force Majeure Event it shall give notice to Customer, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- 13.3Right to Terminate. Customer may terminate this Agreement if such failure or delay continues for a period of 14 consecutive days or more. Unless this Agreement is terminated in accordance with this Section 17.4, the Term of this Agreement shall be automatically extended by a period equal to the period of suspension.
Section 13 provides that we are not responsible for breaches of the agreement that are attributable to causes beyond our reasonable control. We will let you know should this occur and try to resume performance and minimize the effect on you. In such circumstances, your subscription will be extended by any period of suspended services. If such a situation persists for 14 consecutive days, you may terminate the agreement.
- 14.1Further Assurances. Each party shall, upon the reasonable request, and at the sole cost and expense, of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
- 14.2Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- 14.3Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (in either case, with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated in the heading of this Agreement (or at such other address for a party as shall be specified in a notice given in accordance with this Section 14.3) and sent to the attention of Customer Support (e-mail: [email protected]) in regard to notices to Provider and sent to the attention of [Name/Title of Customer Authorized Recipient] (e-mail: [Customer Contact E-mail Address]) in regard to notices to Customer.
- 14.4Assignment; Delegation; Enurement. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider's prior written consent, which consent Provider may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider's prior written consent is required. No assignment or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 14.4 is void. Provider may from time to time in its discretion engage third parties to perform Services. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- 14.5No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- 14.6Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by an authorized representative of each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- 14.7Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- 14.8Submission to Jurisdiction; Waiver of Jury Trials. Any Action arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal and provincial courts located in Toronto, Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such Action. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any Action brought in any such court. Notwithstanding the foregoing, Provider may institute Actions in jurisdictions other than Ontario where in terms of violation of its Intellectual Property Rights and/or breach by Customer of any confidentiality obligation. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- 14.9Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Section 14 contains general provisions.
14.1 Each of us must try to assist the other where reasonable and consistent with the agreement.
14.2 This arrangement does not create anything other than a relationship between arm’s length contracting parties (us as service provider and you as customer).
14.3 Any formal notice under the agreement must be in writing and delivered in person, sent by courier, or registered mail or sent by e-mail to a designated contact person.
14.4 You may not transfer your rights or your obligations under this agreement. This includes indirect transfers by way of a change of control or merger.
14.5 This agreement does not provide any rights or remedies to any third party.
14.6 The agreement can only be modified by way of a written document signed by both of us. Rights under this agreement can only be waived by way of a written document signed by the party waiving its rights. Such a waiver only extends to the specific situation at hand and not similar situations that may later occur. Inaction does not waive any rights or remedies.
14.7 If any portion of the agreement is illegal or invalid in a particular territory, it will not apply in such jurisdiction but all other portions of the agreement will continue to apply.
14.8 Any dispute will be resolved before the courts located in Toronto, Ontario, Canada (subject to a few limited exceptions). Disputes will not be resolved by way of a jury trial.
14.9 We do not need to be in the same room to sign the agreement. You can sign a copy on your own and we can sign another copy on our own and we can simply exchange these by fax or e-mail.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
- "Access Credentials" means any user name, identification number, password, security key, security token, personal identification number (PIN) or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Hosted Services.
- "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, investigative, regulatory or other, whether at law, in equity or otherwise.
- "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.
- "Agreement" has the meaning set forth in the preamble/means this agreement and all schedules specifically referenced herein or therein.
- "Authorized User" means any employee of Customer or any of its Affiliates.
- "Business Day" means any day other than a Saturday, Sunday or any statutory holiday in the province of Ontario, Canada.
- "Confidential Information" has the meaning set forth in Section 8.1.
- “Consumer” means a user of the Platform and potential purchaser of Customer Products.
- "Control" (and the terms "Controlled by" and "under common Control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
- "Customer" has the meaning set forth in the preamble.
- "Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Hosted Services.
- "Customer Failure" has the meaning set forth in Section 4.2.
- "Customer Goods" means any goods promoted, marketed, offered for sale or sold by Customer through use of the Service.
- "Customer Indemnitee" has the meaning set forth in Section 11.1.
- "Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by Customer or through the use of third-party services.
- "Disclosing Party" means a party that discloses Confidential Information under this Agreement.
- "Documentation" means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials.
- "Effective Date" means the date on which both parties have executed this Agreement.
- "Fees" has the meaning set forth in Section 6.1.
- "Force Majeure Event" has the meaning set forth in Section 13.1.
- "Governmental Authority" means any federal, provincial, territorial, municipal or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
- "Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.
- "Harmful Code" means any software, hardware or other technology, device or means, including any virus, trojan horse, worm, backdoor, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Hosted Services or Provider Systems as intended by this Agreement.
- "Hosted Services" has the meaning set forth in Section 2.1.
- "HST" means harmonized sales tax, or goods and services tax, imposed under Part IX of the Excise Tax Act, R.C.S. 1985, c. E-15 (or any provincial or territorial legislation imposing sales tax, harmonized sales tax or goods and services tax).
- "Indemnitee" has the meaning set forth in Section 11.3.
- "Indemnitor" has the meaning set forth in Section 11.3.
- "Initial Term" has the meaning set forth in Section 9.1.
- "Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and industrial design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection under the Laws of any jurisdiction in any part of the world.
- "Law" means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.
- "Losses" mean all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- "Party" (and the term "Parties") has the meaning set forth in the preamble to this Agreement.
- "Person" means an individual, corporation, partnership, unlimited liability company, Governmental Authority, unincorporated organization, trust, association or any other entity.
- "Platform" means the Provider software platform titled Localyyz and any third-party or other software that Provider provides remote access to and use of as part of the Hosted Services and/or the Documentation, and all new versions, updates, revisions, improvements and modifications of the foregoing.
- "Process" means to take any action or perform any operation or set of operations that the Hosted Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings.
- "Provider" has the meaning set forth in the preamble.
- "Provider Indemnitee" has the meaning set forth in Section 11.2.
- "Provider Materials" means the Platform, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider's monitoring of Customer's access to or use of the Hosted Services, but do not include Customer Data.
- "Provider Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any subcontractor.
- "Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Hosted Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
- "Receiving Party" means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
- "Renewal Term" has the meaning set forth in Section 9.1.
- "Representatives" means, with respect to a party, that party, its Affiliates, and their respective employees, officers, directors, consultants, agents, independent contractors, subcontractors and legal advisors.
- "Resultant Data" means information, data and other content that is derived by or through the Hosted Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
- "Service Credit" means a credit payable under circumstances if certain service level requirements have not been met, as same are specified in Schedule 2.1.
- "Services" has the meaning set forth in Section 2.1.
- "Specifications" means the specifications for the Services set forth in the documentation published by Localyyz, as same may be changed by Localyyz from time to time.
- "Subscription Category" or "Subscription Categories" has the meaning set forth in Section 3.3.
- "Taxes" means any commodity tax, including sales, use, excise, value-added, services, HST, consumption or other similar tax, including penalties and interest, imposed, levied or assessed by any Governmental Authority.
- "Term" has the meaning set forth in Section 9.1.
- "Territory" means [Canada/United States/worldwide].
- "Third Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
SERVICES AND FEES
I. Summary of Software and Services:
The Platform provides general functionality that allows for the promotion of your products through use of various tools and solutions (“Promotion Services”). The Platform also provides access to consumer behaviour data collected in regards to consumers using the Platform (“Analytics Services”). Finally, the Platform provides sales facilitation services through seamless integration of your compatible online store (“Customer Online Store”) with the Platform (“Sales Services”).
II. Subscription Categories
Ability to publish an unlimited number of SKUs
Limited technical support
Performance marketing services (fee negotiated on projected ad spend)
Performance marketing ad spend (paid for and determined by merchant)
Ability to publish an unlimited number of SKUs
Limited technical support
Marketing campaign management, design and execution (maximum of four per year)
Managed push notification campaigns (maximum of six per year)
Performance marketing services (unlimited)
Performance marketing ad spend (paid for and determined by merchant)
Ability to publish an unlimited number of SKUs
Insights and analytics (on demand)
Marketing campaign management, design and execution (maximum of twelve per year)
Managed push notification campaigns (maximum of twelve per year)
Priority listing of products (distributed evenly with other priority subscription holders)
Performance marketing services (unlimited)
Performance marketing ad spend (paid for and determined by merchant)
All fees are expressed in USD.
All payments shall be in USD and made electronic payment made through the Customer’s eCommerce platform or through www.localyyz.com/.
V. Prohibited Goods
Use of the Platform in regard to any of the following types of products is strictly prohibited (“Prohibited Goods”):
- Services of any sort.
- Third party goods from any source.
- Items that are deemed as offensive or inappropriate by Localyyz.
- Any items that do not fit into any of the following categories: (i) fashion apparel; (ii) clothing; (iii) fashion accessories; (iv) beauty supplies; and (v) cosmetics.
- Items that infringe any third party intellectual property rights (including, without limitation, counterfeit goods or merchandise or grey market goods) or items that were designed or manufactured as a result of any misappropriation of trade secrets.
- Items having any association with any hate crime, hate group or religious, ideological or other forms of discrimination or intolerance, or any other item that promotes or supports violence, hatred towards others, or are derogatory towards others of different races, ethnicities, sexual orientation, gender, religious belief or gender identity.
- Sexually explicit items including sexual images and pornography.
- Items bearing any explicit content not suitable for minors.
- Dangerous goods or hazardous materials.
- Items that do not comply with the laws of the province of Ontario and the federal laws of Canada that apply in the province of Ontario, or the laws of where the Customer Goods are manufactured, stored, imported or delivered.
- Items that include any human or animal remains or body parts (excluding hair).
VI. Customer Online Store Service Levels
Localyyz strives to maintain the highest level of standards for its merchants to ensure that consumers are provided with a top tier mobile shopping experience. We want the Customer Online Store to be successful on Localyyz, our guidelines are put in place to help put your business in the best position possible to reach and appeal to customers shopping in the Localyyz marketplace.
- Listing or otherwise offering for sale any Prohibited Goods.
- Failure to promptly fulfill orders for Customer Goods within 10 business days.
- Failure to respond to Localyyz communications and/or customer communications and or inquiries within 36 hours of these being sent.
- Excessive negative product reviews in regard to any one or more Customer Goods.
- Excessive customer complaints regarding you or your Customer Online Store.
VII. Platform Service Levels and Remedies:
- Service Levels. Subject to the terms and conditions of the Agreement:
- Provider will use commercially reasonable efforts to make the Hosted Services Available at least 95% of the time as measured over the course of each quarter of the Term or Renewal Term (each such annual period, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below in this Section 1 (the "Availability Requirement"). For the purposes of this Schedule, "Available" means the Hosted Services are available for access and use by Customer and its Authorized Users over the internet and "Service Level Failure" means a material failure of the Hosted Services to meet the Availability Requirement.
- For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and neither the Hosted Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any:
- act or omission by Customer or any Authorized User/access to or use of the Hosted Services by Customer or any Authorized User, or using Customer's or an Authorized User's Access Credentials, that does not strictly comply with this Agreement and the Specifications;
- Customer Failure;
- Customer’s or its Authorized User's internet connectivity;
- Force Majeure Event;
- failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement;
- Scheduled Downtime; or
- disabling, suspension or termination of the Services pursuant to Section 2.4.
- Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of 20% of the Annual Fee for the Hosted Services due for the Service Period in which the Service Level Failure occurred (each a "Service Credit"), subject to the following:
Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section 2 sets forth Provider's sole obligation and liability and Customer's sole remedy for any Service Level Failure.
- Provider has no obligation to issue any Service Credit unless (i) Customer reports the Service Level Failure to Provider immediately on becoming aware of it; and (ii) requests such Service Credit in writing within three days of the Service Level Failure; and
- in no event will a Service Credit for any Service Period exceed 75 percent of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
- Scheduled Downtime. Provider will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Hosted Services between the hours of)12:30 a.m. and )7 a.m., Eastern Time; and (b) give Customer at least 48 hours’ prior notice of all scheduled outages of the Hosted Services ("Scheduled Downtime").