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1.1 Subject to the terms and conditions of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“App”); (b) copy, modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels; (d) bypass or breach any disabling device, security device or protection used by the Services or any Software or access or use the Services other than by authorized Customer users; (e) input, upload, transmit or otherwise provide to or through the Services or any Software any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or any Software; (g) access or use the Services or any Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Company customer), or that violates any applicable law; (h) access or use the Services or any Software for purposes of reselling or performing any competitive analysis of or on the Services; or (i) otherwise access or use, or permit any access or use of, the Services or any Software except as expressly permitted under this Agreement.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s Acceptable Use Policies then in effect, which Company reserves the right to amend from time to time, in its sole discretion (the “Policies”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the Policies or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the Policies.
2.3 Customer shall be and remain solely responsible for: (a) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”); (b) maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords, user names, identification numbers, license or security keys, security tokens, personal identification numbers (PIN) or other security codes, methods, technologies or devices used, alone or in combination, to verify an individual’s identity and authorization to access and use the Software) and files, and for all access and uses of Customer account or the Equipment 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; (c) all Customer Data (as defined below), including its content and use; and (d) all information, instructions and materials provided by or on behalf of Customer in connection with the Services; (e) providing all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under and in connection with this Agreement.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial 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 business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes: (a) non-public information regarding technology, trade secrets, know-how, features, functionality and performance in and of the Services; (b) business operations, plans, strategies and customers of the Company; and (c) pricing terms of this Agreement. Proprietary Information of Customer includes, other than Resultant Data, non-public information, data and other content in any form or medium, that Company collects, downloads or otherwise receives, directly or indirectly from Customer (including any Customer user) by or through Customer’s use of the Services or otherwise to enable the provision of the Services (“Customer Data”).
3.2 The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after ten (10) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) is required to be disclosed by law. Customer represents, warrants and covenants to Company that Customer owns or otherwise has, and will have, the necessary rights and consents in and relating to the Customer Data so that, as received by Company and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.
3.3 Customer shall own (a) all right, title and interest in and to the Customer Data, and, (b) subject to copyright laws, any data, other than Resultant Data, or report that is based on the Customer Data and provided to Customer as part of the Services. Customer may reproduce, distribute, or display any text, information, data, image, in whatever medium or form provided by Company to Customer (“Services Content”) into a product or service delivered by Customer to a third party provided that (i) the form of expression of such Services Content is original and materially distinct, or (ii) Customer otherwise acknowledges Company as being the author of such work. Company may request, based on reasonable objections, the removal of, or editorial revisions to, any Services Content published by Customer. Within 72 hours of receipt, Customer shall take appropriate remedial action with respect to any such request.
3.4 Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.5 Notwithstanding anything to the contrary, Company shall have the right collect, process, monitor and analyze data, content and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom whether by or through the Services) (collectively, “Resultant Data”), and Company will be free (during and after the term hereof) to (a) use Resultant Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (b) disclose Resultant Data solely in aggregate or other de-identified form in connection with its business. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an assignment of all right, title and interest in and to the Resultant Data, including all intellectual property rights relating thereto.
4. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Company 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. Company does not warrant that the Services will be uninterrupted or error free; EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES OR ANY RESULTS OF THE USE THEREOF, WILL (a) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) ACHIEVE ANY INTENDED RESULT; (c) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT; OR (d) BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE.
5. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement, including the Order Form, these Terms and Conditions and Exhibit “A”, which is hereby incorporated by reference, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of any conflict between the terms and provisions of this Agreement and those of any exhibit, schedule or attachment, the following order of precedence shall govern: (a) first, this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the Order Form; (c) third, Exhibit “A”; and (d) third, any other documents incorporated herein by reference. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the Province of New Brunswick without regard to its conflict of laws provisions. 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. The parties shall work together in good faith to issue at least one mutually agreed upon press release within ninety (90) days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.