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Terms of Service

Cultivated Code Inc.
LabBoard™

 

Please read the following terms and conditions in these Terms of Service ("Agreement") carefully before clicking "I AGREE". This Agreement limits your rights and disclaims liability of Cultivated Code Inc. ("Licensor"). By clicking "I AGREE", you enter into this Agreement, which is a valid and binding legal contract between you ("Licensee", being you and/or the organization on behalf of which you, as an employee, contractor or agent of such organization enter into this Agreement), and Licensor. The Agreement includes the initial statements appearing before the numbered paragraphs below.

INITIAL AGREEMENT AND SETTING UP AN ACCOUNT: EXCEPT WHERE YOU PERSONALLY ARE LICENSEE, YOU CONFIRM, WARRANT AND REPRESENT THAT YOU HAVE ALL NECESSARY AUTHORITY AND ARE OF THE AGE OF MAJORITY IN YOUR JURISDICTION, IN ORDER TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND THAT LICENSEE SHALL BE BOUND BY THIS AGREEMENT. YOU AGREE TO CONTRACT ELECTRONICALLY AND, BY PROVIDING AN EMAIL ADDRESS TO LICENSOR, YOU AGREE TO RECEIVE NOTICES FROM LICENSOR AT SUCH EMAIL ADDRESS, TO MAINTAIN SUCH EMAIL ADDRESS AS VALID (OR ADVISE LICENSOR OF ANY CHANGE TO EMAIL ADDRESS) AND TO REGULARLY MONITOR SUCH EMAIL ADDRESS FOR NOTICES FROM LICENSOR.

IF YOU DO NOT ACCEPT AND/OR LICENSEE DOES NOT ACCEPT, AND YOU AND/OR LICENSEE ARE/IS NOT PREPARED TO BE LEGALLY BOUND BY ALL THE APPLICABLE TERMS AND CONDITIONS BELOW, YOU MAY NOT CLICK "I AGREE" AND YOU MAY NOT SET UP AN ACCOUNT TO USE OR ACCESS THE SERVICES. BY CLICKING ON "I AGREE", AND/OR BY ACCESSING OR USING THE SERVICES AND/OR THE SOFTWARE, YOU ARE ENTERING INTO A LEGAL CONTRACT AND AGREEMENT BETWEEN YOU AND/OR LICENSEE WITH LICENSOR WITH RESPECT TO THE SOFTWARE AND SERVICES IDENTIFIED AND DEFINED BELOW, SUBJECT ALWAYS AND IN ALL RESPECTS TO THE TERMS AND CONDITIONS SET FORTH BELOW AND IN ANY OTHER REFERENCED DOCUMENTATION, POLICIES OR SCHEDULES.

BETA VERSION: The Software is currently a beta version only, and is subject to ongoing testing, revision and development by Licensor. As a beta version, the Software contains defects and errors and Licensee agrees to backup all Licensee Data and not rely on the Services to reliably host, backup or be able to restore such Licensee Data. The provisions of this Agreement regarding payment of Fees are suspended while the Software is in beta status, and Licensee is not required to pay Fees during the beta phase. Upon beta testing being completed and the Software being released from beta status, the provisions of this Agreement related to payment of Fees shall apply.

THE SOFTWARE AND THE SERVICES ARE OFFERED BY LICENSOR FOR ACADEMIC STUDY AND RESEARCH USE ONLY, AND SHALL NOT BE USED BY LICENSEE FOR ANY OTHER PURPOSE. THE SOFTWARE AND THE SERVICES SHALL IN ANY EVENT NOT BE USED IN CLINICAL, MEDICAL, EMERGENCY, HEALTH-CRITICAL OR LIFE-CRITICAL SITUATIONS AND LICENSEE UNDERTAKES AND AGREES THAT IT WILL NOT DO SO. THE SOFTWARE AND THE SERVICES HAVE NOT BEEN APPROVED, INSPECTED, CERTIFIED, REGISTERED OR OTHERWISE QUALIFIED BY ANY REGULATORY AGENCY FOR USE IN DIAGNOSTIC OR THERAPEUTIC PROCEDURES, OR ANY OTHER USE WHATSOEVER REQUIRING COMPLIANCE WITH ANY FEDERAL, PROVINCIAL, STATE, COUNTY, MUNICIPAL OR LOCAL LAW OR REQUIREMENT. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR OBTAINING ANY APPROVALS OR COMPLIANCE CERTIFICATION REQUIRED FOR LICENSEE TO USE THE SOFTWARE OR THE SERVICES.

THIRD PARTY SERVICE PROVIDERS: Licensor uses Amazon Web Services in order to provide the Services. Nothing in this Agreement shall bind Licensor to any obligation greater than the obligations of Amazon to Licensor (and enforceable by Licensor against Amazon) under the terms of service of Amazon in effect at the time of any Claim against Licensor. Amazon's terms of service are, insofar as is known to Licensor, currently available at http://aws.amazon.com/terms/ or at such other location as Amazon may specify from time to time.

TRANSFER OF INFORMATION OUT OF CANADA: Licensor uses service providers, including without limitation Amazon, located in the United States of America or elsewhere. In the course of Licensee using the Services, Licensee Data will be transferred out of Canada and hosted in other jurisdictions, where it will be subject to the laws of such jurisdictions. Licensee warrants and represents that Licensee Data either does not contain Personal Information, or, if Licensee Data does include Personal Information, Licensee has notified all affected or subject individuals of the foregoing transfer and housing of their Personal Information outside of Canada, and Licensee has obtained and will retain all required consents. Licensor shall have no obligation to inspect Licensee Data for any content or to ensure Licensee compliance with the foregoing or this Agreement.

PAYMENT: Except where Licensor has agreed to other arrangements, all payments to Licensor by Licensee (whether for Fees or otherwise as provided in this Agreement), shall be made by way of Licensee's credit card. Licensee authorizes Licensor to process any and all Invoices by Licensee's credit card, and, without limitation, to process all monthly payments for the Services by Licensee's credit card. Payments due are calculated at a monthly rate and are paid in advance. The sign up screen preceding this Agreement states the current rates for the Services, which rate may be amended on notice as provided in this Agreement, and stated the billing arrangements related to your use of the Services.

This Agreement apply to all access to or use of the Services or the Software, regardless of application or version. This Agreement may not be varied or terminated other than as expressly stated below. Licensor may amend the terms and conditions of this Agreement by notice to Licensee as provided below.

  1. DEFINITIONS:
    Capitalized words and phrases in this Agreement shall have the following meanings, unless otherwise expressly defined elsewhere in
    "Business Hours" means the hours of 8:00 a.m. to 5:00 p.m. Mountain Time, Monday to Friday inclusive, except statutory or civic holidays observed in the Province of Alberta, or otherwise applicable, including Christmas Day, Boxing Day, New Years Day, Good Friday, July 1, the first Monday in August, Labour Day, Thanksgiving Day (both United States and Canada) and November 11. All other references to a day or days shall be treated as a standard calendar day, provided that "Business Days" shall be as stated in the foregoing.
    "Claim" means and includes any suits, demands, notices, proceedings, actions, liabilities, losses, damages, claims, arbitrations, lawsuits, government investigations, debts and costs.
    "Confidential Information" shall mean and include (a) any data or material provided by the Disclosing Party in printed, written, graphic, photographic or other tangible form, as well as stored, transmitted and received electronically, and marked as "Confidential", "Secret", "Proprietary", "Restricted" "Private" or words of similar import; (b) the Services, the Software, and the Documentation, and any information which can be obtained from examining, testing, utilizing or analyzing the Services and/or the Software, or any software, hardware or component thereof; (c) Licensee Data, Licensee and Licensee's User's user names, passwords and log in information; and (d) any other information related to the use and operation of the Services and the Software not published by Licensor.
    "Data" means any and all information, data, digital files, records, or other content, document or materials of any kind that a Party gathers, collects, compiles, processes, stores, accesses, archives, transmits, uploads, downloads, or otherwise uses.
    "Documentation" means and includes any manuals, help-files, guides, "FAQ" materials, training materials, documentation and other materials related to the Services or the Software, or the use thereof, provided with or made available through the Services or otherwise by Licensor.
    "Disclosing Party" means the Party that discloses Confidential Information to the Recipient, or the Party on behalf of which Confidential Information is disclosed to or received the Recipient.
    "Effective Date" means the date on which Licensee clicks Accept to this Agreement and Licensor accepts Licensee's agreement by providing access to the Services and/or the Software.
    “Fees” means and includes any and all charges and fees for the Services, including increases thereto. Fees do not include any applicable sales or value-added taxes, including but not limited to GST or HST, which shall be in addition and shall be paid by Licensee as provided in this Agreement.
    "Hosting Services" means hosting Licensee Data on a computer or server provided by Licensor, making Licensee Data available to Licensee via the Internet by Licensee using Licensee's own ISP, backing up Licensee's Data by way of making copies of Licensee's Data on a regular basis (as scheduled by Licensor, on a commercially reasonable basis), and related products and services if provided by Licensor.
    "ISP" means an Internet Service Provider, being a Third Party Person which supplies and provides connectivity to the Internet and related or ancillary products and services, including, without limitation, domain name registration, domain name hosting, domain name maintenance, co-location, co-hosting, web-hosting and Internet transit services.
    "Licensee Data" means any and all Data that Licensee (including Licensee's Users) gathers, collects, compiles, processes, stores, accesses, archives or otherwise uses by the use of the Services, but excludes the Services, the Documentation, the Software, and any Data created, authored, developed or made by Licensor, or licensed to Licensee by Licensor.
    "Party" means either Licensor or Licensee, and "Parties" means both Licensor and Licensee.
    "Person" means any individual, company, corporation, firm, partnership, joint venture, association, organization, trust, trade union, governmental body, public body or other legal entity in each case whether or not having a separate legal identity.
    "Personal Information" means any information about an identifiable individual, including health information, but does not include aggregate or anonymous information, or information used only to contact an individual in their capacity or position as an employee or official of an organization.
    "Privacy Law" means any statute, legislation, or regulation governing individual privacy or the collection, use or disclosure of Personal Information and access to Personal Information, including any finding, ruling, directive or order of any privacy commissioner or similar official or tribunal, to which either Party may be subject.
    "Recipient" means the Party that receives Confidential Information from or on behalf of the Disclosing Party.
    "Services" means and shall include access to the Software, supplied, provided or made available under License by Licensor as a service or hosted solution, any of Licensor's web-based services provided to Licensee, including Licensor's application services, Hosting Services, and other similar services accessible via the Internet or otherwise, access to the Documentation, and in any case shall include any derivatives, improvements, enhancements or extensions of any of the foregoing made, conceived, created, authored, discovered, written, invented, programmed, reduced to practice, or developed during the term of this Agreement by Licensor or on its behalf. References to the Services shall include the Software and/or the Documentation unless the context requires otherwise.
    "Software" means Licensor's software and application known as LabBoard™, as made accessible to Licensee by Licensor in the Services, together with any other software, application, script or program supplied by or licensed by Licensor, and shall include the Documentation, all supporting files and all other accompanying documentation, whether printed or in digital form, and shall further include any and all updates, modifications, upgrades, enhancements, new versions, new releases and derivative works to or from the foregoing, whether or not supplied by Licensor as a matter of course, or pursuant to another agreement between the Parties.
    “Suspend” or “Suspension” will mean the act of restricting access to or the Services, including Licensee Data, or the activities or availability of the Software or the Services by Licensor.
    "Term" means the term of this Agreement, which, unless otherwise agreed in writing by the Parties and subject to termination as provided herein, shall be on a month to month basis.
    "Third Party" means any Person, other than a Party to this Agreement.
    "User" means any Person authorized by Licensee to access and/or use the Services under Licensee's account and may include Licensee's employees, contractors and customers.
  2. INTERPRETATION
    The headings in this Agreement are inserted for convenience and do not affect the interpretation of any provision of this Agreement. Words importing the singular number will include the plural and vice-versa, and words importing the masculine gender will include the feminine gender and neuter gender and vice versa. If there is a conflict between this Agreement and any other documentation, agreement, policy, schedule, exhibit, addendum, appendix or any other referenced documents made or executed or entered into by the Parties, this Agreement shall prevail unless such other documentation expressly indicates that its particular terms and/or conditions prevail over this Agreement.
  3. GOVERNING LAW
    This Agreement shall be governed and interpreted according to the laws of Alberta, Canada, and the laws of Canada applicable therein. The Parties attorn to the non-exclusive jurisdiction of the courts of Alberta, sitting at Calgary, without regard to the conflicts of law rules or principles of such court.
  4. EQUITABLE REMEDIES
    Licensee acknowledges that a breach of its obligations under this Agreement may cause Licensor irreparable harm from which no adequate remedy exists at law, and for which damages will not be an adequate remedy, and that upon any such breach or threatened breach, and notwithstanding any other provision of this Agreement, Licensor shall be entitled to injunctive relief in any court of competent jurisdiction without prejudice to any other right in law or equity and without the necessity of prior demand or proof of damage.
  5. LICENSE
    Subject to the terms and conditions of this Agreement, and payment of all applicable Fees by Licensee, Licensor grants Licensee a limited, non-exclusive, non-transferable, conditional and revocable license. The license is personal to Licensee and may not be sub-licensed (other than enabling Licensee's authorized Users to access and use the Services), assigned or sold. Licensee agrees that its Users are subject to and will be bound by the terms and conditions of this Agreement and any other agreement Licensor implements with such Users, and such Users, subject to Licensee's obligations hereunder, may be authorized to use the Services from time to time. Licensee shall be fully liable to Licensor for any damages sustained by Licensor and caused, in whole or in part, by Licensee or its Users. All rights not expressly granted herein by Licensor are retained or reserved by Licensor.
  6. INTELLECTUAL PROPERTY RIGHTS
    The Services and the Software are owned by and shall remain the exclusive property of Licensor or its licensors, and are protected by copyright law and international treaties. Licensee does not own the Services or the Software. Nothing in this Agreement shall be construed as granting to Licensee any assignment, waiver, permission, license or other right except as expressly stated in this Agreement.
  7. TRADEMARKS
    LabBoard™, together with any associated logos, graphics or designs, is a trademark and the exclusive property of Licensor, all rights reserved. Nothing herein grants Licensee any right, title or interest in or to the foregoing trademarks, and no license to use such trademarks is granted by Licensor in this Agreement.
  8. COMPLIANCE AND PROHIBITIONS
    Licensee will comply with all applicable laws, regulations and industry standards. Licensee will not, and will not permit any other individual or person to:
    1. modify, translate, reverse engineer, decompile, disassemble, alter, copy, distribute or publish the Services or the Software, or create compilations or derivative works based on the Services or the Software, or assist or allow anyone to perform any one or more of those acts;
    2. except for use with data owned by, or licensed to, Licensee (or its Users) and uploaded into the Services by Licensee (or its Users) for processing and storage by Licensee, sell, resell, distribute, sub-license or make available the Services or the Software to any third party, or, subject to the license granted to Licensee under this Agreement to permit access to and use of the Services to Licensee's Users) use the Services or the Software as a service bureau;
    3. transfer or assign the license granted or this Agreement to any third party without the written consent of Licensor;
    4. remove, alter or obliterate any proprietary notices, labels, or marks on the Services;
    5. interfere with the Services, or develop or use applications, software or programs which adversely affect or impact the Services, or any information system linked to or available through the Services;
    6. undertake or carry out any activity which actually or potentially creates liability or damage to Licensor, Licensor's other customers or licensees, or Licensor's licensors or suppliers;
    7. use, transmit or store anything obscene, illegal, defamatory, harassing or offensive, or which breaches or violates any Privacy Law or other applicable law, legislation or regulation, or which appropriates rights of personality, or which violates the rights of any individual with respect to their personal information or rights of privacy, or that constitutes hate literature or pornography, or that constitutes a chain letter, multi-level marketing arrangement or pyramid scheme, or which in any way violates or infringes copyright, moral rights, trademark, patent, trade secret, confidential information, proprietary information or other intellectual property rights of any kind of any person or entity;
    8. use the Services for any purpose which is contrary to the laws of any government or authority having jurisdiction over Licensor or License, including using the Services for any purpose which constitutes a tort or breach of legal, fiduciary, equitable or other duty;
    9. knowingly use the Services to send, receive or transmit any material that contains viruses, Trojan horses, worms, "bots", malware, or any other harmful, malicious or deleterious programs, data or content;
    10. disclose, distribute or publish passwords, user names or log in information other than to Users or other individuals authorized by Licensee to access and use the Services on Licensee's account; or
    11. use the Services for any purpose not expressly permitted in this Agreement, and, without limitation, Licensee will not under any circumstances use the Services for any purpose other than academic study or research.
  9. AMENDMENT
    Licensor may change, vary or modify the nature and quality of the Services at any time, and from time to time, without notice to Licensee. If Licensee continues to use the Services following such changes, Licensee shall be deemed to have accepted such changes. All such changes will be subject to this Agreement. Licensor may further unilaterally amend or materially change any of the terms and conditions of this Agreement applicable to the Services, including without limitation the Fees payable for the Services or otherwise, at any time by posting the amended terms and conditions at http://www.labboard.com/ServiceTerms and Licensee agrees to regularly review the terms and conditions of this Agreement and be bound by any such changes. Changes in the amount of Fees payable will be subject to thirty (30) days notice from Licensor to Licensee, and such notice will be effectively delivered when Licensor sends such notice to Licensee at the email address provided by Licensee. It is Licensee's responsibility to maintain an active and valid email account and to regularly monitor such account for messages received from Licensor. If Licensee continues to use the Services, or makes payment for the Services, following Licensor posting an amended version of this Agreement at http://www.labboard.com/ServiceTerms or, in the case of changes to the amount of Fees payable by Licensee, after such thirty (30) day period following notice, Licensee shall be deemed to have accepted such changes to the terms and conditions or as set out in the notice of such change.
  10. END USER AGREEMENT
    Licensee acknowledges and agrees that Licensor shall have the right, but not the obligation, to require all Licensee's Users, as a condition to using the Services, to click-through and accept an agreement setting out the applicable terms and conditions of such Users' access to and use of the Services. Licensee shall continue to be bound by this Agreement regardless of other individuals subsequently logging in and accepting terms and conditions and/or this Agreement, or any part thereof. Licensor's logs and records of the actions and activities of Licensee and Licensee's Users shall be deemed conclusive and valid evidence of the occurrence of such actions and activities.
  11. LICENSEE DATA
    Licensee retains all right, title and interest in and to Licensee Data, including without limitation all copyrights therein. Licensee will grant, and hereby grants, a fully-paid, royalty free and non-exclusive license to Licensor permitting Licensor, without payment of consideration of any kind, to carry out any and all activities, actions and procedures contemplated or stated herein with respect to Licensee Data, or required to provide the Services as used or requested by Licensee, including, as required, the right to adapt, translate and create compilations of and derivations from Licensee Data. Where Licensee Data is intended for other Users or Persons, or is licensed to or otherwise provided to Licensee by a Third Party, Licensee warrants and represents that is has all required legal authority to grant, and has validly granted, the foregoing license in and to Licensee Data to Licensor. Licensor shall have no liability for any use or reliance by Licensee or any other Person or Third Party on Licensee Data and Licensee shall fully indemnify Licensor for any Claims by any Person or Third Party related to, or arising out of, or alleged to related to or arise out of, Licensor's receipt, possession, custody, control, use, processing, transmittal or modification, in whole or in part, of Licensee Data.
  12. HOSTING SERVICES
    Licensee is solely responsible for creating, inputting, processing, uploading, downloading and otherwise using its own Licensee Data. All Licensee Data shall be in compliance with this Agreement. The Services include Hosting Services related to Licensee Data on Licensor's systems up to a maximum amount of Licensee Data, as stated by Licensor in communications to Licensee. Additional volumes of Licensee Data may result in additional Fees. Licensor accepts no responsibility to review, screen, filter or otherwise approve Licensee Data, provided that Licensor shall have the right, but not the obligation, to remove from its systems any Licensee Data that Licensor, in its sole discretion, believes is in violation of any term or condition of this Agreement. Licensee shall back-up all Licensee Data separately from the Services and Licensor shall not in any event be liable to Licensee for any loss of Licensee Data in the Services, or otherwise, howsoever caused.
  13. DATA RETENTION
    Licensor will retain Licensee Data, subject to the limitations on data volume and otherwise herein, during the Term of this Agreement and for one (1) month following the expiry of the Term or termination of this Agreement, howsoever caused, following which Licensor shall have no obligation to retain Licensee Data and may delete or destroy such Licensee Data without notice to Licensee, and without any liability whatsoever to Licensee.
  14. DATA RECOVERY
    During the Term, Licensor will make commercially reasonable efforts to recover Licensee Data accidentally or inadvertently deleted or lost by Licensee, provided that such data recovery may result in Licensee being liable for additional Fees. Following the expiry of the Term, or the termination of this Agreement, howsoever caused, for a period of one (1) month thereafter, Licensor may, for additional Fees, agree to make commercially reasonable efforts to attempt to recover Licensee Data, provided that Licensee shall pay Licensor for such recovery services as an Additional Service. Licensor provides no warranty, condition or guarantee that any such efforts to recover Licensee Data will succeed.
  15. ADDITIONAL CHARGES
    In the event Licensor is requested to render services or incurs costs in relation to the matters excluded from this Agreement, or otherwise not specifically stated herein, Licensor may Invoice Licensee at Licensor's then standard time and materials rate for such service or services, provided Licensor is available to perform such service and Licensee's credit card is accepted for payment or, where acceptable to Licensor, Licensee otherwise agrees to pay for such services promptly as provided herein. Current rates are available from Licensor on request. Licensor expressly accepts no obligation to perform such services.
  16. LITIGATION HOLDS AND DEMANDS FOR PRESERVATION
    In the event Licensor receives a request or demand from Licensee or any third party to preserve and/or produce Licensee Data or other records or documents related to Licensee, Licensor will comply with all applicable laws and legal obligations related to such request or demand and may do so without liability to Licensee. Where permitted by law to do so, Licensor may inform Licensee of any such request or demand from a third party. Any costs or expenses incurred by Licensor in complying with any such request or demand, and any Fees where such compliance requires additional services, will be paid by Licensee immediately upon Licensor issuing an invoice for such services.
  17. FEES AND PAYMENT
    In consideration of the license and rights herein granted by Licensor, Licensee shall pay to Licensor the Fees, and such obligation to pay shall apply to Fees payable monthly or otherwise in advance, regardless of whether any invoice is issued. Unless otherwise agreed by Licensor, payments shall be in lawful currency of Canada. If Licensee fails to pay any Fees or other amount due to Licensor, Licensee shall pay Licensor interest on any and all outstanding balances at the rate of eighteen (18%) per annum, or such lesser rate as may be the maximum allowed by applicable law, for each and every day any sum, or unpaid balance of any sum, remains outstanding beyond thirty (30) days from the date of the invoice, both before and after judgment. Licensee will pay Licensor any and all costs of collection or enforcement of this Agreement, including without limitation legal costs, fees and disbursements on a solicitor and client basis.
  18. TAXES
    Fees do not include any applicable taxes, including Goods and Services Tax or other sales, excise, transaction, value added, export or import taxes. In addition to all Fees payable to Licensor, Licensee shall pay all applicable sales, excise, transaction, value added, export or import taxes, including but not limited to Goods and Services Tax.
  19. DISCLAIMER OF WARRANTIES, CONDITIONS AND REPRESENTATIONS
    "As Is"
    THE SERVICES, AND ANY ACCESS TO LICENSEE DATA, ARE PROVIDED STRICTLY "AS IS", "WHERE IS" AND "AS AVAILABLE".
    No Warranties Or Conditions
    LICENSEE ACKNOWLEDGES THAT IT HAS INDEPENDENTLY DETERMINED THAT THE SERVICES MEET ITS BUSINESS REQUIREMENTS AND THAT LICENSEE HAS NOT, AND DOES NOT, RELY ON ANY REPRESETATION MADE BY LICENSOR AS TO THE SUITABILITY OF THE SERVICES FOR ANY PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE AND SHALL BE NO REPRESENTATIONS, WARRANTIES, TERMS, CONDITIONS. GUARANTEES, OR COVENANTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, GIVEN BY LICENSOR OR AFFECTING ANYTHING TO BE DELIVERED BY LICENSOR UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE SOFTWARE, THE SERVICES (INCLUDING HOSTING SERVICES) AND ANY ADDITIONAL SERVICES OR OTHER GOODS OR SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE HEREBY WAIVES AND LICENSOR HEREBY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, COMPLIANCE WITH DESCRIPTION, NON-INFRINGEMENT OR NON-VIOLATION OF THIRD PARTY RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OR CONDITION ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. THE UNITED NATIONS INTERNATIONAL CONVENTION ON THE SALE OF GOODS IS EXPRESSLY DISCLAIMED BY THE PARTIES.
    No Liability for Loss or Damage to Licensee Data
    LICENSOR SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY LOSS OF LICENSEE DATA, OR DAMAGE OR CORRUPTION TO LICENSEE DATA, HOWSOEVER CAUSED.
    Services
    EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, LICENSOR DOES NOT WARRANT AND GIVES NO CONDITION THAT THE OPERATION, APPLICATION OR AVAILABILITY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
    Internet Connectivity
    EXCEPT AS EXPRESSLY PROVIDED HEREIN, LICENSEE SHALL BE SOLELY RESPONSIBLE FOR OBTAINING AND DEALING WITH ITS OWN ISP, FOR ITS OWN CONNECTIONS TO THE SERVICES, THE INTERNET AND THE WORLD WIDE WEB, AND FOR SUCH CONNECTIONS ON BEHALF OF ITS USERS. LICENSOR SHALL HAVE NO LIABILITY TO LICENSEE FOR FAILURE OF ANY ISP OR OTHER THIRD PARTY OF ANY KIND TO PROVIDE SUCH ISP'S OR THIRD PARTY'S SERVICES, INCLUDING ANY FAILURE BY LICENSEE'S OR ANY USER'S ISP'S, AND FAILURE BY LICENSOR'S ISP'S.
    Risk of Errors or Loss
    LICENSEE USES THE SERVICES SOLELY AT ITS OWN RISK. WITHOUT LIMITATION OF THE FOREGOING, LICENSEE ACKNOWLEDGES AND AGREES THAT EMAIL, ELECTRONIC COMMUNICATIONS, THE INTERNET AND THE WORLD WIDE WEB ARE NOT FULLY DEPENDABLE MEDIA OR MEANS OF COMMUNICATION AND LICENSEE USES THE FOREGOING SOLELY AT LICENSEE'S OWN RISK. LICENSOR SHALL HAVE NO LIABILITY FOR LOSS OF, DAMAGE TO, OR ALTERATION OF DATA OR INFORMATION IN TRANSIT OVER THE INTERNET, THE WORLD WIDE WEB, VIA ELECTRONIC MEANS OR VIA EMAIL.
  20. LIMITATION OF DAMAGES AND LIABILITY
    Monetary Cap
    WITHOUT DEROGATING FROM ANY OTHER DISCLAIMER OR LIMITATION OF LIABILITY CONTAINED IN THIS AGREEMENT, LICENSEE AGREES THAT THE AGGREGATE OF ALL LIABILITY ON THE PART OF LICENSOR FOR BREACH OF ANY WARRANTY, REPRESENTATION OR CONDITION CONTAINED IN THIS AGREEMENT OR OF ANY OTHER PROVISION OF THIS AGREEMENT OR OF ANY AGREEMENT CONTEMPLATED BY THIS AGREEMENT, OR ANY OTHER BREACH GIVING RISE TO LIABILITY, INCLUDING A BREACH OF A CONDITION OR FUNDAMENTAL TERM OR FUNDAMENTAL BREACH OR BREACHES OR IN ANY OTHER WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED BY THIS AGREEMENT, FOR ANY AND ALL CAUSES OF ACTION WHATSOEVER AND, REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT LIABILITY OR TORT, INCLUDING NEGLIGENCE, BREACH OF ANY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY), SHALL BE LIMITED TO THE LICENCEE'S ACTUAL DIRECT PROVABLE DAMAGES IN AN AMOUNT NOT TO EXCEED FIFTY (50%) PER CENT OF THE FEE OR FEES PAID BY LICENSEE TO LICENSOR DURING THE FIRST YEAR OF THE TERM OF THIS AGREEMENT OR, WHERE THIS AGREEMENT HAS NOT BEEN IN EFFECT FOR A FULL YEAR, SUCH LESSER PERIOD AS MAY BE IN EFFECT AT THE TIME OF THE CLAIM BY LICENSEE ARISING.
    Limited Direct Damages Only
    LICENSEE AGREES THAT, EVEN IF LICENSOR HAS BEEN ADVISED BY LICENSEE OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES IN THE NATURE OF PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST BUSINESS REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, ECONOMIC LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY CLAIM AGAINST LICENSEE BY ANY THIRD PARTY. LICENSEE FURTHER AGREES THAT IN NO EVENT WILL THE DIRECTORS, OFFICERS, SERVANTS, AGENTS, EMPLOYEES, OR SHAREHOLDERS OF LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES.
    Enurement
    THE LIMITATIONS HEREIN PROVIDED SHALL APPLY TO, BE FOR AND ENURE TO THE BENEFIT OF LICENSOR AND ITS DIRECTORS, OFFICERS, SERVANTS, AGENTS, EMPLOYEES, CONTRACTORS, SUB-CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES. THESE LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
    Reasonableness
    LICENSEE AGREES AND ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS AND DISCLAIMERS ARE VALID AND REASONABLE, ARE REFLECTED IN THE PRICING FOR THE FEES FOR THE SERVICES, ARE KNOWN TO LICENSEE AND ARE ACCEPTED BY LICENSEE.
    Flow-Through of Third Party Obligations
    Licensee acknowledges and agrees that certain aspects, components or portions of the Services may be provided to Licensor by Third Parties, including but not limited to Amazon Web Services as provided above, and in no event will the rights of Licensee to pursue any Claim against Licensor exceed the obligations of any applicable Third Party to indemnify Licensor for any such Claim by Licensee. Licensor accepts no responsibility or liability to remain with Amazon Web Services and Licensor may change its service providers at any time without notice or liability of any kind to Licensee.
  21. CONFIDENTIALITY
    Confidentiality
    Recipient and its directors, officers, employees, agents, consultants, representatives and any other entity to whom the Recipient reveals the Confidential Information (collectively the "Representatives") agree to abide by the terms of this Agreement which include without limitation the agreement to:
    1. treat as confidential and preserve the confidentiality of all Confidential Information disclosed to Recipient by Disclosing Party;
    2. not use the Confidential Information for any purpose other than as allowed hereunder without first obtaining the written consent of Disclosing Party;
    3. make no disclosure directly or indirectly of any Confidential Information to any Third Party without the prior written consent of Disclosing Party except to those Representatives who need to know the Confidential Information for the purpose of Recipient carrying out its rights and obligations pursuant to this Agreement, it being understood that such Representatives will be advised by Recipient of the confidential nature of such information and that by receiving such information they will be bound by this Agreement. Recipient will be liable to Disclosing Party for any breach of this Agreement by Recipient's Representatives;
    4. ensure that any Third Party which may be given access to the Confidential Information by Recipient, that is not an officer or employee of Recipient, executes a non-disclosure agreement which provides for protection of Disclosing Party and is in a form substantially the same as provided in this Agreement.
    Disclosure
    In the event that Recipient is required by judicial or administrative process to disclose Confidential Information, Recipient shall promptly notify Disclosing Party, which may oppose such process, provided the Recipient is not prohibited by applicable law to do so. If Recipient is legally obliged, in the reasonable written opinion of its counsel, to disclose Confidential Information or become liable for contempt or suffer some other penalty, it may disclose such information, but only to the extent that it is so obliged, without liability to Disclosing Party under this Agreement.
    Exceptions
    The confidentiality obligations herein shall not apply to the extent that any of the Confidential Information is:
    1. lawfully known to Recipient prior to its disclosure by Disclosing Party, and such knowledge is not a direct or indirect result of a breach of any obligation by any Third Party;
    2. now is or later becomes in the public domain other than as a result of a breach by Recipient or any of its Representatives of their obligations hereunder;
    3. received subsequently by Recipient from a Third Party which has the lawful right to disclose same; or,
    4. independently developed by Recipient without reference to the Confidential Information received hereunder, as evidenced by Recipient's records.
    Delivery
    Subject to the provisions of this Agreement, upon being requested to do so, Recipient and its Representatives will promptly deliver to Disclosing Party all Disclosing Party's Confidential Information and all copies thereof including without limitation all memoranda, notebooks, records, and other documents which they may have generated or may have obtained from Disclosing Party whether such Confidential Information is in written or any other form. In the event Licensee requests such delivery of Licensee Data, and Licensor delivers same, Licensor shall have no further obligation with respect to such Licensee Data. Nothing in the foregoing prevents Recipient or its Representatives from retaining copies of Confidential Information where required to do so by law.
    Disclaimer
    Except as stated in this Agreement, Disclosing Party makes no representations, conditions or warranties of any kind whatsoever, express or implied, including without limitation any warranty or condition of merchantability, fitness for a particular purpose, non-infringement of any third party right, completeness or accuracy in regards to any of the Confidential Information disclosed to Recipient or its Representatives or any statement, written or oral, made to Recipient or its Representatives regarding Disclosing Party.
  22. TERM AND TERMINATION
    Commencement of Term
    The Term shall commence on the Effective Date or as otherwise stated in written documentation executed by both Parties and, subject to the terms and conditions of this Agreement, shall continue until terminated.
    Termination by Licensor for Cause
    This Agreement may be terminated immediately and without notice by Licensor for cause, upon the occurrence of any one or more of the following events:
    1. upon Licensee becoming insolvent, or being adjudged a bankrupt, or making a general assignment for the benefit of its creditors or taking the benefit of any statute relating to insolvency or if a receiver or trustee shall be appointed for all or any portion of its property;
    2. upon the commission by Licensee of any material breach of its obligations and restrictions under this Agreement; or,
    3. in the event of any default or failure by Licensee to observe the provisions of this Agreement other than a material breach, immediately by Licensor if such other default or failure is not fully remedied by Licensee within ten (10) days of Licensor providing Licensee with notice demanding that Licensee remedy such other default or failure.
    Termination for Convenience
    This Agreement may be terminated by either Party at any time for convenience upon thirty (30) days notice to the other Party.
    Suspension
    Licensor may, at any time, without further notice, and without termination of this Agreement or being in any way in default hereunder, and without liability of any kind to Licensee, Suspend the operation of the Services or the ability of Licensee to access or use the Services (including access to and use of Licensee Data) in circumstances including:
    1. where the Services are experiencing technical difficulties, are under attack, are subject to failure to provide services by any Third Party, including but not limited to any ISP, are subject to technical or infrastructure difficulties, or are not available for any reason;
    2. where Licensee is in default of payment of Fees or any other sums owing under this Agreement until such payment or payments have been made and Licensee's account is current; or
    3. where Licensee is in material breach of this Agreement and either such breach has not been cured by Licensee notwithstanding notice from Licensor and demand for such cure, or Licensee's breach or other conduct places Licensor's systems, servers, computers, the Software or the Services, or the systems of Third Parties, in the opinion of Licensor, in risk of damage, loss or failure, or in risk of being unable to meet the requirements of other licensees, users, clients or customers of Licensor or Third Parties.
    Consequences of Termination or Expiry
    Subject to any provisions of this Agreement stated to survive termination, expiry of this Agreement, or termination pursuant to the foregoing or otherwise shall terminate the license to use the Services, and any other permissions and licenses granted pursuant to this Agreement, and further shall terminate all obligations of Licensor to provide the Services. No refund of any License Fees or other pre-paid sums, in whole, or pro rata, or in part will be paid or payable.
    Other Rights of Licensor
    Licensee acknowledges and agrees that certain aspects of the Services are, or may be, supplied by, provided by or made available by Third Parties, including but not limited to Amazon Web Services, and Licensor has no control over the actions of such Third Parties. Licensor shall have the right to terminate, without liability to Licensee, all or any portion of the Services where the actions, errors or omissions of any one or more Third Parties make the Services or such portion thereof no longer available or otherwise commercially unreasonable to provide. Licensor will make commercially reasonable efforts to provide Licensee with notice of any termination or change pursuant to the foregoing but Licensee acknowledges and agrees that Licensor may not receive notice from such Third Parties and therefore may not be able to provide such notice to Licensee.
  23. THIRD PARTY CLAIMS
    In the event of any Claim by a Third Party that the Software or the Services infringes, violates or misappropriates any intellectual property right or proprietary right of such Third Party recognized and enforceable, or, in the opinion of Licensor, potentially enforceable, against Licensee, being made against Licensee, Licensee shall, immediately upon becoming aware of such Claim, give Licensor immediate written notice with full particulars of any such Claim. Licensor, in its sole discretion, may:
    1. modify the Software or Services so that the Software or such Services no longer infringes, violates or misappropriates such Third Party rights;
    2. procure a license from such Third Party permitting continued use of the Software or Services; or
    3. in the event that Licensor is of the opinion, in its sole discretion, that neither of the foregoing options are possible or available, terminate this Agreement.
    The foregoing constitutes Licensor's entire obligations with respect to such Third Party Claims, and constitutes Licensee's exclusive and limited remedy with respect to such Claims.
  24. DISPUTE RESOLUTION
    Resolution by Negotiation
    Any dispute between the Parties with respect to: (a) the interpretation of any provision of this Agreement; (b) the performance by either Party hereunder; or (c) any other matter which arises in connection with this Agreement, including failure to agree, will be referred for resolution as specified in this paragraph.
    1. Upon written request of either Party, the Parties' designates (the "Party Representatives") will meet (provided that such meeting may be by telephone, video conference, web conferencing or other electronic means accepted by Licensor) for the purpose of endeavoring to resolve such dispute.
    2. Subject to the time periods hereinafter set forth, the Party Representatives will meet to gather and furnish to the other all information with respect to the matter in issue which is appropriate and relevant in connection with its resolution. The Party Representatives will discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding related thereto. During the course of such negotiation, all reasonable requests made by one Party to the other for information specifically related to the issue in dispute will be honoured in order that each of the Parties may be fully advised of the other's position. The specific format for such discussions will be left to the discretion of the Party Representatives but may include the preparation and exchange of agreed upon statements of fact or written statements of position.
    3. If the Party Representatives cannot resolve the dispute within ten (10) Business Days of it being referred to them (or three (3) Business Days if either Party has notified the other that the matter must be dealt with on an urgent basis), then subject to any contrary agreement being made between the Parties, the dispute will be escalated to each Parties' designated Executive Officers (together the "Executive Committee") for their review and resolution. Members of the Executive Committee will communicate with each other promptly following the escalation by the Party Representatives for the purpose of endeavoring to resolve such dispute. The Executive Committee will discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding relating thereto.
    4. If the dispute has not been resolved by the Executive Committee or if either Party refuses to designate a representative within ten (10) Business Days of the dispute being referred to them by the Party Representatives (or three (3) Business Days if either Party has notified the other that the matter must be dealt with on an urgent basis), and the Parties have not agreed in good faith to extend the time period for negotiations, either Party may initiate arbitration as provided below.
  25. ARBITRATION
    Subject to paragraph 25 above, any dispute which has proceeded through the Executive Committee pursuant to the foregoing without resolution may be submitted for arbitration by either Party in accordance with the following:
    1. The Party desiring arbitration will notify the other Party of such desire and the Parties will attempt to agree, within three (3) Business Days, on a single arbitrator who will be named to resolve the dispute. If the Parties are unable to agree, either Party may apply to the Court of Queen's Bench of Alberta to appoint a single arbitrator who is suitably qualified by education and professional experience to deal with the matters that are the subject of the arbitration.
    2. The arbitration will take place in Calgary, Alberta and, except as modified herein, will be conducted in accordance with the Arbitration Act (Alberta) in effect at the date of commencement of such arbitration. The decision of the arbitrator will be final and binding on the Parties to the arbitration and no appeal will be taken from any determination unless the determination contains an error of law that results in a determination which is patently unreasonable.
    3. Each of the Parties will co-operate with the arbitrator and provide the arbitrator with all information in its possession or under its control necessary or relevant to the matter being determined. The Parties will use commercially reasonable efforts to cause any arbitration hearing that may be held hereunder to be completed as soon as practicable. The arbitrator will be required to make an award as soon as possible, and if at all practicable, within five (5) Business Days after the conclusion of the arbitration hearing. The arbitrator may determine all questions of law and jurisdiction including questions as to whether the dispute is arbitrable, and has the right to grant permanent and interim relief or injunctive relief or other forms of equitable relief, will have the right to order production of documents and examinations for discovery or upon affidavit, and will have the discretion to award costs including reasonable legal fees (including on a solicitor and client basis), interest and costs of the arbitration. Judgment upon an award, including any interim award, rendered by the arbitrator may be entered in any Court having competent jurisdiction.
    Exclusions
    Notwithstanding the foregoing, the following matters will not be subject to arbitration proceedings and will be dealt with through litigation in the courts of competent jurisdiction:
    1. disputes regarding the ownership or infringement of intellectual property rights; and
    2. breaches and alleged breaches of the provisions of this Agreement respecting Confidential Information or intellectual property rights.
    Performance Notwithstanding Dispute
    Notwithstanding any other provision herein, except where clearly prevented by the nature of the matter in dispute, both Parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved or arbitrated (except in the case of termination of this Agreement) unless and until such obligations are terminated or expire in accordance with the provisions hereof.
    Injunctive or Other Relief
    Nothing in the foregoing will prevent either Party from applying for or obtaining any interim, interlocutory or preliminary injunctive or declaratory relief or from bringing any claim for contribution or indemnity in the same Court in which a suit against the Party is brought by any Third Party.
  26. COVENANTS OF LICENSEE
    Compliance
    Licensee will comply in all respects with all provisions of this Agreement, as amended, including all obligations to pay Fees and other sums of money owing Licensor.
    Warranties and Representations
    Licensee warrants and represents to Licensor that:
    1. Licensee has all requisite corporate capacity, legal authority and approvals permitting Licensee to enter into and be bound by this Agreement;
    2. By entering into this Agreement, Licensee will not be in breach of any obligation or duty, whether legal, equitable, fiduciary or otherwise;
    3. Licensee will comply with all terms and conditions of this Agreement; and
    4. Licensee owns or has sufficient rights to all Licensee Data in order to enter into this Agreement and permit Licensor to use and deal with Licensee Data as provided herein.
    Indemnity
    Licensee will indemnify and save harmless Licensor from any Claims by any User, Person or Third Party arising out of any breach by Licensee of this Agreement, Licensee's use of and access to the Services or the Software, Licensor's possession, use or processing of Licensee Data, the receipt by Licensee of any services or products, including without limitation the Services, from Licensor, and any Claims by Third Parties for infringement, violation or misappropriation of any propriety right, title or interest, including intellectual property rights, arising out of Licensor providing the Services to Licensee.
  27. GENERAL PROVISIONS
    Assignment
    Licensee will not assign all or any part of this Agreement without the prior written consent of Licensor, in its sole discretion.
    Enurement
    This Agreement will enure to the benefit of and will be binding on and enforceable by the Parties and their respective successors and permitted assigns.
    Relationship
    This Agreement does not create or imply any agency, partnership, joint venture, or other joint relationship between the Parties, and does not authorize either Party to bind or obligate the other in any way.
    Force Majeure
    Licensor is not responsible for performance of, or in default of, any obligation or provision of this Agreement where delayed, hindered or prevented by Force Majeure, being defined as labour disruptions, failure of the networks of other companies, casualties, civil disturbances, legislation, regulation, judicial order, acts of military authorities, accidents, fires, natural disasters or other catastrophes or events beyond the Parties' reasonable control or commercially viable means of mitigation.
    Severability
    If any part of this Agreement is void, prohibited or unenforceable, the rest of this Agreement will continue in force and effect and will be construed as if such part had never been part of this Agreement.
    No Waiver
    The failure of a Party to exercise any right under this Agreement, or their failure to insist upon strict or full performance of the obligations under this Agreement will not constitute a waiver of that Party's rights hereunder or a relinquishment of any provision of this Agreement. In order to be binding upon a Party, any such waiver must be express and in writing signed by that Party. The rights of the Parties under this Agreement are cumulative and not alternative.
    Survival
    Any provision of this Agreement that, expressly or by its nature, extends beyond the termination of this Agreement will survive any termination of this Agreement. Without limitation, paragraphs 3, 4, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, and 27shall survive any termination or expiry of this Agreement, howsoever caused, and shall continue in full force and effect.
    Notices
    All Notices necessary under this Agreement will be given in accordance with this Agreement and will be given to the Party receiving such notice as provided herein. Notices to Licensor may be delivered as provided at the time in the Services, or by email, provided that Licensor shall not be deemed to have received any email message unless and until Licensor acknowledges receipt in writing, whether by return email or otherwise.
    Entire Agreement
    This Agreement forms the entire agreement between the Parties and supersedes all prior written and oral communications and agreements, including without limitation any non-disclosure or confidentiality agreement, between the Parties concerning the Services and the Software. Licensor shall have the right to amend this Agreement as provided herein. Any amendments to this Agreement other than those made by Licensor pursuant to this Agreement shall be of no force or effect unless expressly accepted in writing by Licensor.
    Further Assurances
    Each Party hereto will promptly and duly execute and deliver to each remaining Party such further documents and assurances and take such further action as such remaining Party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby.
    Use of Licensee Name
    Licensor shall be entitled to publicly disclose Licensee's name as a licensee of the Software and user of the Services in the course of Licensor's marketing and promotional efforts.


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