Terms and Conditions
Please read this services agreement (“Agreement”) carefully before using any of the services provided by Swift Business Books (“Contractor”). By clicking on “I accept Contractor’s terms of service” on the sign-up page, or using any of Contractor’s services, Client (as defined below) is agreeing to be bound by and comply with the terms and conditions of this Agreement. If Client does not agree to this Agreement, Client is not permitted to use Contractor’s services.
Contractor recommends that you print a copy of this Agreement for your records.
“Client” means the person, entity, partnership or organization utilizing Contractor’s services.
“Party” means either Client or Contractor and “Parties” means both Client and Contractor
“Recipient” means a Client who is an accountant, accounting firm, or other third party whose clients include Contractor Clients. Recipients access the Services in accordance with this Agreement for the purposes of obtaining, with their clients’ authorization, Client Data about such clients to provide them services.
“Services” means the services described on Contractor’s website and selected by Client during Sign-Up. Contractor reserves the right to update its description of the Services from time to time during the Term.
“Sign-up” means the on-line sign-up process on Contractor’s website.
“Term” has the meaning set out in Section 6.
Subscribing to the Service.
Client subscribes for the Services by selecting them from the options available during Sign-up. In the event of any conflict between this Agreement and the information provided during Sign-up, this Agreement shall control.
License Grant. Subject to the terms and conditions of this Agreement, Contractor grants to Client a non-exclusive, non-transferable license during the Term, to permit Client Personnel to access the Services through Contractor’s currently available interfaces.
User IDs. Upon Client’s request, Contractor will issue a Client ID to Client. Client may share this Client ID with each of its partners, shareholders, employees and contractors who are bound by confidentiality restrictions at least as restrictive as this Agreement (“Client Personnel”). Client Personnel may only access and use the Service through the Client ID. Client will not allow Client Personnel to share the Client ID with third parties. Client is responsible for all activity occurring under its Client ID. Client is responsible for all use of the Services by Client Personnel and for maintaining the confidentiality of the Client ID and will promptly notify Contractor of any actual or suspected unauthorized use of the Services. Contractor reserves the right to replace the Client ID if it determines it may have been used for an unauthorized purpose.
Internet Connectivity; Disclaimer. Contractor will make the Services available for access via the Internet. Client shall provide, at Client’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Services. Client acknowledges that the Internet is known to be unpredictable in performance, unsecure and may, from time to time, impede access to the Services or performance hereunder. Client agrees that Contractor is not in any way responsible for any interference with Client’s use of or access to the Services or security breaches arising from or attributable to the Internet and Client waives any and all claims against Contractor in connection therewith.
Limitations. Client agrees that it will not permit any Client Personnel or any other party to: (a) permit any party to access or use the Services other than the Client Personnel authorized under this Agreement; (b) modify, adapt, alter or translate any software underlying the Services, except as expressly allowed hereunder; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software underlying the Services; (e) use or copy the any software underlying the Services except as expressly allowed hereunder; (f) conduct or promote any illegal activities while using the Services; (g) use the Services to generate unsolicited email advertisements or spam; (h) use the Services to stalk, harass or harm another individual; (i) use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including without limitation robots, spiders or scripts); (j) interfere in any way with the proper functioning of the Services or interfere with or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (k) attempt to gain access to secured portions of the Services to which it does not possess access rights; (l) upload or transmit any form of virus, worm, Trojan horse, or other malicious code; (m) use any robot, spider, other automatic device, or manual process to extract, “screen scrape”, monitor, “mine”, or copy any static or dynamic web page on the Services or the content contained on any such web page for commercial use without our prior express written permission; (n) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; or (o) mirror or frame the Services or any content, place pop-up windows over its pages, or otherwise affect the display of its pages.
Suspension of Access. In addition to any other suspension or termination rights of Contractor pursuant to this Agreement, certain extraordinary circumstances may require Contractor to suspend or terminate (where appropriate), as determined in Contractor’s discretion, Client’s access to and/or use of, or otherwise modify, the Services and/or any component thereof, without notice in order to: (a) prevent damages to, or degradation of the integrity of, Contractor’s Internet network; (b) comply with any law, regulation, court order, or other governmental request or order; or (c) otherwise protect Contractor from potential legal liability or harm to its reputation or business. Contractor will use commercially reasonable efforts to notify Client of the reason(s) for such suspension or termination action as soon as reasonably practicable. In the event of a suspension, Contractor will promptly restore Client’s access to the Services as soon as the event giving rise to the suspension has been resolved as determined in Contractor’s discretion. Nothing contained in this Agreement will be construed to limit Contractor’s actions or remedies or act as a waiver of Contractor’s rights in any way with respect to any of the foregoing activities. Contractor will not be responsible for any loss or damages incurred by Client as a result of any termination or suspension of access to or use of the Services.
Reservation of Rights.
Contractor. Contractor expressly reserves all rights in the Service and all other materials provided by Contractor hereunder not specifically granted to Client. It is acknowledged that all right, title and interest in the Service and all other materials provided by Contractor hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Contractor (or third party suppliers, if applicable) and that the Service and all other materials provided by Contractor hereunder are licensed on a subscription basis and not “sold” to Client. Certain of the names, logos, and other materials displayed on the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Contractor or other entities. Client is not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with Contractor or those other entities. Any use of third party software provided in connection with the Services will be governed by such third parties’ licenses and not by this Agreement.
Client. Client expressly reserves all rights in any information, records, files or other data that Client (or Client Personnel) loads, enters into, or otherwise makes available to Contractor or the Service and all results from processing such data, including compilations, and derivative works thereof (the “Client Data”), except that Client grants Contractor a perpetual, non-exclusive, world-wide, royalty free, fully sublicenseable, fully paid-up license to use, reformat, modify, display, perform, reproduce, and create derivative works of the Client Data: (i) in providing the Service to Client or (ii) in connection with Contractor’s internal business purposes. Unless specifically agreed in writing, each Party’s rights under this clause (b) extend to any update, adaptation, translation, customization or derivative work of Client Data, made under this Agreement.
Feedback. In the event that Client provides Contractor any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (collectively “Feedback”), Client agrees that Contractor may use the Feedback to modify the Services and that Client will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. Client hereby grants Contractor a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether Client provides the Feedback on the Services or through any other method of communication with Contractor.
Responsibility. Client has sole responsibility for the accuracy, appropriateness and completeness of all Client Data. Contractor will use the Client Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Client Data.
Restrictions. Client agrees not to upload or transmit any Client Data: (i) that Client does not have the lawful right to copy, transmit, distribute, and display (including any Client Data that would violate any confidentiality or fiduciary obligations that Client might have with respect to the Client Data); (ii) for which Client does not have the consent or permission from the owner of any personally identifiable information contained in the Client Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; or (vii) that contains any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
Indemnity. Client agrees to indemnify and hold harmless Contractor, its employees, officers, directors and affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties (including, but not limited to, any Clients, the Canadian government and provincial taxing authorities) relating to: (a) Client Data, (b) Client’s breach of any of its obligations, representations and/or warranties under this Agreement; or (c) except for claims for which Contractor is liable under Section 11 (IP Indemnity) below, Client’s use of the Services, including in combination with any third party software, application or service.
The term of this Agreement (“Term”) shall commence upon the date the Sign-up process is complete and will continue on a month to month basis thereafter until terminated. If Client has elected to receive a “30 day free trial”, notwithstanding anything else to the contrary herein, the Term of this Agreement will be 30 days. At the end of the “30 day free trial” if Client wishes to continue to receive the Services, Client must begin paying for the services, and may not receive a further “30 day free trial”.
During the Term for the applicable Services, Contractor will provide the following standard Client support:
Web Support. Client”s designated representative shall have access to Contractor”s technical support web site and may use the web site to submit service requests. Contractor may also elect to offer Client the option of submitting service requests to Contractor by telephone. Contractor will use reasonable efforts to respond within three (3) business days. Web support shall not include, and Contractor will not provide, any tax or other professional or expert advice of any kind, including, but not limited to any advice regarding the appropriate handling of tax and accounting issues, or otherwise. Contractor will use commercially reasonable efforts to correct any reproducible failure of the Services to substantially conform to its expected operation; provided that Contractor is not require to provide a correction for all such nonconformities.
Service Upgrades and Scheduled Downtime. Contractor will update the Service in its sole discretion. Contractor will make such updates available to Client, at no additional charge, as and when it offers them generally to its other Clients. Contractor may from time to time schedule downtime for maintenance and upgrades.
Data Storage & Backup. The Service includes online data storage and daily data backups of Client Data. It is Client’s responsibility to backup onto Client’s own local system all Client Data, including all data and records that Client submits to Contractor.
Fees & Payment.
Subscription Fees. Subscription Fees are recurring monthly fees. Subscription Fees are initially the fees indicated during Sign-up but Contractor may change the Subscription Fees from time to time by providing Client with one (1) month’s notice.
Usage Fees. Usage Fees are charged in respect of Client’s use of the Services (for example, fees per transaction in excess of the amount Client subscribed for). Rates for Usage Fees are initially the rates indicated during Sign-up but Contractor may change the rates from time to time by providing Client with one (1) month’s notice.
Automatic Credit Card Payments. Client agrees to provide Contractor with credit card information for a credit card it is authorized to use agrees that, during the Term, Contractor may charge the applicable credit card for: (i) Subscription Fees each month in advance; and (ii) for Usage Fees, immediately after the end of the applicable measurement period (normally at the end of each month). Contractor will issue Client a receipt for each payment monthly. Contractor must be notified in writing of any billing discrepancies within ten (10) days after the date of the applicable receipt to be eligible to receive an adjustment or credit (if any) on Client’s next payment to Contractor.
Late Payment. Client may not withhold or “setoff” any amounts due hereunder. Contractor reserves the right to suspend Service until all past due amounts are paid in full. Any late payment shall be subject to any costs of collection and shall bear interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate if less, per month or fraction thereof until paid.
Certain Taxes. Fees quoted do not include and Client shall pay, indemnify and hold Contractor harmless from all sales, use, gross receipts, value-added, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transaction contemplated herein, other than taxes based on the net income or profits of Contractor.
Refunds In the event of termination of a Service, we may provide you with a refund of any pre-paid, but unused fees related to such Service, effective at the beginning of the next month of your Service. No refund shall be paid for the current month’s services, regardless of the day on which you cancel the Services. We will issue the refund within 60 days of when your cancellation request is processed. You will not be entitled to any refund for our termination of the Services based upon your breach. If you purchased access to the Service at a discounted price, any refund will lose the benefit of that discount. For example, if you paid $100.00 for a one-year subscription, and the monthly subscription price was $10.00 at the time of such purchase, we would assume that you were on the month-to-month subscription for the purpose of your refund. Thus, if you cancelled during the sixth (6th) month of the year for which you prepaid, we would grant you a refund of $40.00, or $100.00 — (6 * $10.00).
Confidential & Proprietary Information.
Definitions. For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Discloser” and “Confidential & Proprietary Information” means all information disclosed by Discloser to Recipient during the Term and marked as “confidential” or “proprietary”. Client hereby acknowledges that the Service will be considered Confidential and Proprietary Information belonging exclusively to Contractor (or its designated third party supplier), and Contractor hereby acknowledges that Client Data will be considered Confidential and Proprietary Information belonging exclusively to Client, in each case regardless of whether or not marked as “confidential” or“proprietary”. Discloser’s Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information in the public domain through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
Covenant. Recipient hereby agrees that during the Term and at all times thereafter it shall not (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, as permitted by this Agreement (including Section 5(b)), or to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient shall use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event shall less than due diligence and reasonable care be exercised. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 9 (Confidential & Proprietary Information ) if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of Discloser’s written request or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Contractor may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, and/or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.
Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
Warranties and Disclaimers.
Limited Noninfringement Warranty. Contractor represents and warrants that, to the best of its knowledge as of the date the Service (and each update thereto) is first made available hereunder, the Service, when properly used in accordance with this Agreement, will not misappropriate or infringe any third party’s U.S. intellectual property rights. Client’s sole and exclusive recourse and remedy, and Contractor’s sole, exclusive and entire liability, for breach of this Section 10(a) (Limited Noninfringement Warranty) shall be the exercise of Client’s indemnity rights under Section 11 (IP Indemnity) below.
Content from other users, suppliers, advertisers, and other third parties may be made available to Client through the Services. Because Contractor does not control such content, Client agrees that Contractor is not responsible for any such content. Contractor does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and Contractor assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Services may contain links to websites not operated by Contractor. Contractor is not responsible for the content, products, materials, or practices (including privacy practices) of such websites. Client understands that by using the Site and/or Services Client may be exposed to third-party websites that Client finds offensive, indecent or otherwise objectionable. Contractor makes no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services. Contractor provides these links for Client’s convenience only and does not control such websites. Contractor’s inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. The Services may contain links to websites that are operated by Contractor but which operate under different terms. It is Client’s responsibility to review the privacy policies and Terms of Service of any other website Client visit. CLIENT AGREES THAT IN NO EVENT WILL CONTRACTOR BE LIABLE TO CLIENT IN CONNECTION WITH ANY WEBSITES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.
Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 10 (WARRANTIES AND DISCLAIMERS) THE SERVICES AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CONTRACTOR TO CLIENT ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. CONTRACTOR HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
Contractor shall defend at its expense any suit brought against Client and will pay any settlement Contractor makes or approves or any damages finally awarded in such suit insofar as such suit is based on a claim by any third party alleging that Contractor has violated Section 10(a) (Limited Noninfringement Warranty); provided that Contractor is given prompt notice of the claim and sole control over the defence and any settlement thereof and Client reasonably cooperates with Contractor (at Contractor’s expense) to facilitate the settlement or defence of any claim. Contractor is not obligated under this section to the extent any claim arises from Client’s breach of this Agreement or use of the Service in combination with any software, data, or technology not supplied by Contractor (where there would be no claim, but for such combination). If any portion of the Service becomes, or in Contractor’s opinion is likely to become, the subject of a claim of infringement, Contractor may, at Contractor’s option: (a) procure for Client the right to continue using the Service; (b) replace the Service with non-infringing software or services which does not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate this Agreement and upon such termination, Client will immediately cease all use of the Services. This Section 11 (IP Indemnity) states the sole and exclusive remedy of Client and the entire liability of Contractor for infringement claims and actions.
Limitation of Liabilities.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
Amount. EXCEPT FOR INDEMNITIES EXPRESSLY PROVIDED BY THIS AGREEMENT, NEITHER PARTY IS LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT EXCEEDING FEES PAID IN RESPECT OF THE SERVICES AT ISSUE IN THE LAST THREE (3) MONTHS. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL CONTRACTOR’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
Type. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL CONTRACTOR BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO CLIENT. TO THE EXTENT THAT CONTRACTOR MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
Notices sent to either Party shall be effective when delivered in person or by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s server. Notices must be in writing and, in the case of notices to:
Contractor addressed to Client Care at: (i) Swift Business Books, 1507 7th Street, #494, Santa Monica, CA, USA 90401; or (ii) firstname.lastname@example.org; and (b) Client, to the addresses or email address provided by Client on Sign-up (as such address or email address may be updated by Client from time to time in accordance with this Agreement).
Contractor may change its contact information by giving notice of such change to the Client. Client may change its contact information by using the currently available interfaces on Contractor’s website. For contractual purposes, Client (i) consents to receive communications from Contractor in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that Contractor provides to Client electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Client’s consent to receive Communications and do business electronically, and Contractor’s agreement to do so, applies to all of Client’s interactions and transactions with Contractor. The foregoing does not affect Client’s non-waivable rights. If Client withdraws such consent, from that time forward, Client must stop using the Services. The withdrawal of Client’s consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between Contractor prior to the time Client withdraw its consent.
On Notice. Either Party can terminate this Agreement at the end of the then current term of this Agreement by providing the other party with notice of termination prior to the last day of the then current term of this Agreement.
Generally. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party breaches any material provision thereof and fails within fifteen (15) days after receipt of notice of default to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in Bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days.
Survival. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties (except for Client’s payment of all sums then owing), including all licenses granted hereunder, shall immediately terminate except as provided below; (b) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 9 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of this Agreement for any reason: Section 4 (Reservation of Rights), Section 5(d) (Client Data), Section 9 (Confidential & Proprietary Information), Section 10(b) (Warranty Disclaimer), Section 12 (Limitation of Liabilities), Section 14(c) (Survival), and Section 15 (General Provisions).
Assignment. Client may not assign this Agreement or any of its rights or obligations hereunder to any third party without Contractor’s prior written consent. Any assignment in violation of this section shall be void. The terms of this Agreement shall be binding upon permitted assignees.
Arbitration. All controversies, disputes, demands, counts, claims, or causes of action between Client and Contractor arising out of, under, or related to this Agreement or Contractor’s privacy practices (including any action Contractor takes or authorizes with respect to information about or provided by Client) shall be settled exclusively through binding arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
Client is thus GIVING UP ITS RIGHT TO GO TO COURT to assert or defend its rights under this contract EXCEPT for matters that may be taken to small claims court. Client’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. Client is entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
Client and Contractor must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by Client and Contractor, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY CLIENT OR CONTRACTOR MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that Client is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Contractor will pay as much of Client’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) Contractor also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either Client or Contractor shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/Contractor Client; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses.
With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither Client nor Contractor shall be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between Client and Contractor shall be exclusively brought in the state or federal courts specified in subsection “(d)” above. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, Client may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the substantive laws of the State of New York, without regard to conflicts of law principles. Except as specified in Section 15(b) (Arbitration), the Parties will initiate any lawsuits in Toronto, Ontario and irrevocably consent to exclusive personal jurisdiction and venue therein. The U.N. Convention on Contracts for the International Sale of Goods and the Unfair Contracts Act in the United Kingdom shall not apply to this Agreement. Any claim against Contractor must be brought within six months after it arose, or be barred.
Right to List As A Client. Client agrees that Contractor may utilize Client’s entity name in listings of current Clients. Use of Client’s name in any other marketing materials or press announcements will be submitted to Client in advance for approval, and such approval will not be unreasonably withheld.
Compliance with Export Regulations. Client has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Contractor harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Client shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
European Union Residents. If Client resides in the European Union (EU) or if any transfer of information between Client and the Service is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Client consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Service.
Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
Force Majeure. Neither Party shall be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder shall not be excused by this provision.
Severable. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect.
Waiver. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions.
Independent Contractors. Client’s relationship to Contractor is that of an independent contractor, and neither Party is an agent or partner of the other. Client will not have, and will not represent to any third party that it has, any authority to act on behalf of Contractor.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Amendments. Contractor reserves the right to change this Agreement at any time and from time to time without notice by posting revisions to this Agreement (including the description of the Services) on Contractor’s website. Continued use of the Services after Client become aware of any such changes shall constitute Client’s consent to such changes. Client is responsible for regularly reviewing the most current version of this Agreement which is available on Contractor’s website.
English Language. It is the express wish of the parties that these Terms of Service and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.